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Virginia Prisoner Must Be Brought to Trial Within 5 Months

In an unpublished opinion issued March 24, 2009, Plather v. Commonwealth (Record No. 1017-08-1, ), the Virginia Court of Appeals reversed the Plather's convictions for robbery, unlawful stabbing and malicious wounding because he was not brought to trial within 5 months after his preliminary hearing.

Under Code section 19.2-243 an incarcerated accused held continuously in custody shall be brought to trial within five months after a general district court finds probable cause to believe that he has committed a crime. This five-month period begins to run on the day after the preliminary hearing at which probable cause is found. However, where there is no preliminary hearing, the statute runs from the date of the indictment.

In this case, Plather was held over to the grand jury at his preliminary hearing on May 8, 2007, and the grand jury indicted him on the charges on July 2, 2007. On July 9, 2007, he appeared before the court for a hearing to determine whether he had retained counsel and to set a trial date of October 31, 2007. This date was more than 5 months after his preliminary hearing and he was in jail the entire time.

While he was eventualy brought to trial (on October 31, 2007, the trial was continued with the agreement of both parties to November 20, 2007 because another trial in that court had run late), the error in setting the original trial date past the 5-month statutory period was controlling, and by law Plather could not be convicted.

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