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COURT OF APPEALS OF VIRGINIA
Present:    Judges Bumgardner, Frank and Humphreys
Argued at Richmond, Virginia
KEVIN EDGAR FORD
OPINION BY
v.    Record No.  0106-00-2                                            JUDGE ROBERT P. FRANK
NOVEMBER  7,  2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Charles L. Weber, Jr., for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General  (Mark L. Earley, Attorney General, on
brief), for appellee.
Kevin Edgar Ford  (appellant) was convicted of unlawful
wounding, by a jury, in violation of Code  §  18.2-51.    On appeal,
he contends the trial court erred in finding that his speedy
trial rights under Code  §  19.2-243 were not violated.    For the
following reasons, we affirm the judgment of the trial court.1
I.    BACKGROUND
On October  18,  1996, appellant was arrested for malicious
wounding by an Albemarle County police officer.    Appellant posted
bond and was released from custody.    He was free on bond until
December  18,  1996, when he was incarcerated by federal
1 The Court notes that the final sentencing order entered by
the trial court erroneously reflects that the appellant was
found guilty by the jury of malicious wounding.    Accordingly,
this case is remanded to the trial court for the sole purpose of
amending the final order to reflect that the appellant was found
guilty of unlawful wounding.




authorities for a supervised release violation.    Appellant
remained in continuous federal custody from December  18,  1996
until his November  4,  1997 trial for malicious wounding in
Albemarle County.
On February  24,  1997, appellant's trial counsel notified the
Commonwealth's Attorney for Albemarle County that appellant was
in custody and requested assistance in securing his presence at
trial.    Appellant was present at the preliminary hearing on the
malicious wounding charge on February  27,  1997.
On March  18,  1997, trial counsel again requested assistance
from the Commonwealth's Attorney in having appellant transported
to Albemarle County for trial.    By letter, dated March  27,  1997,
the Commonwealth's Attorney indicated he would initiate
transportation arrangements once the trial date was set.    On
April  7,  1997, at docket call in the Circuit Court of Albemarle
County, the Commonwealth moved to pass the case to the June
docket, without objection by appellant's trial counsel.    On June
2,  1997, the case was set for trial on July  17,  1997.
On May  13,  1997, the Commonwealth requested that a detainer
be lodged against appellant for the pending malicious wounding
charge in Albemarle County.    By letter dated May  30,  1997, the
Warden of the Federal Correctional Institution at Cumberland,
Maryland, indicated the detainer had been lodged.    The letter was
filed in the Circuit Court of Albemarle County on June  6,  1997.
On June  4,  1997, appellant's trial counsel again requested
assistance from the Commonwealth's Attorney in having appellant
transported to Albemarle County for trial.    However, on July  16,
1997, the trial court granted the Commonwealth's motion to




continue the case because appellant had not yet been transported
to Virginia.    Defense counsel said:
I would need him to be here, I would
think, at least ten days prior to trial in
order to have time to notify the clerk of
any subpoenas I need to have issued.    So I'm
stuck in this position of, no, I can't
object to it because I couldn't try him if
he were here today, in good conscience,
without incurring an ineffective assistance
of counsel, I think, but at the same time I
don't think that this is through any steps
of  [appellant's] and I don't think it should
be held against him on any speedy trial
matters.
On October  3,  1997, at a hearing prior to trial, appellant
contended he was entitled to be tried within five months of the
February  27,  1997 preliminary hearing because he had been
continuously incarcerated since that time.    The parties, however,
stipulated that "the defendant was in fact held on federal
charges the entire time and not directly on state charges."    The
Commonwealth acknowledged the federal "probation violation on
which he was held  .  .  . stem[med] from the arrest on the Virginia
charges."
Following the October  3,  1997 hearing, the trial judge, in
an opinion letter dated October  15,  1997, found that the
nine-month provision of Code  §  19.2-243 applied, rather than the
five-month period, because appellant was not being held on the
malicious wounding charge but was being held by federal
authorities on the federal probation violation.    The trial judge
noted in his letter opinion:
The letter sent to the Commonwealth
Attorney by the Federal Bureau of Prisons
clearly states that "inmates who are




temporarily transferred pursuant to  [The
Interstate Agreement on Detainers Act]
remain under the primary jurisdiction of
federal authorities  .  .  . you are required
to return the above named inmate to this
institution after prosecution  .  .  . this
inmate may not be released on bail or bond
while in your custody  .  .  . this inmate is
not to be committed to a state correctional
institution for service of any state
sentence(s) that may be imposed as a result
of your prosecution."
Hence, the trial judge determined that the November  4,  1997 trial
date would be timely.
Alternatively, the trial judge found that the date set for
trial would have been timely under the five-month provision of
the statute.    He stated that appellant and his attorney failed to
make a "timely objection" either to the Commonwealth's motion for
a continuance on June  2,  1997 or on July  16,  1997.    The trial
judge, thus, found that the period from June  2,  1997 to November
4,  1997 "should not count against the Commonwealth for purposes
of the speedy trial statute."
Appellant was tried on November  4,  1997 and was found guilty
of unlawful wounding by a jury.
II.    ANALYSIS
Appellant contends that because he was in custody
continuously following the preliminary hearing, the five-month
limit for prosecution under Code  §  19.2-243 applies, not the
nine-month period as determined by the trial judge.    It is
uncontroverted that appellant remained continuously in custody
from the preliminary hearing on February  27,  1997 until the trial
on November  4,  1997.    If the nine-month limitation applies,




appellant was tried within nine months of the preliminary
hearing.    If the five-month limitation applies, we then must
determine whether the periods of delay caused by the continuances
should be charged to the Commonwealth.2
Code  §  19.2-243 states, in part:
Where a general district court has
found that there is probable cause to
believe that the accused has committed a
felony, the accused, if he is held
continuously in custody thereafter, shall be
forever discharged from prosecution for such
offense if no trial is commenced in the
circuit court within five months from the
date such probable cause was found by the
district court; and if the accused is not
held in custody but has been recognized for
his appearance in the circuit court to
answer for such offense, he shall be forever
discharged from prosecution therefor if no
trial is commenced in the circuit court
within nine months from the date such
probable cause was found.
If there was no preliminary hearing in
the district court, or if such preliminary
hearing was waived by the accused, the
commencement of the running of the five and
nine months periods, respectively, set forth
in this section, shall be from the date an
indictment or presentment is found against
the accused.
If an indictment or presentment is
found against the accused but he has not
been arrested for the offense charged
therein, the five and nine months periods,
respectively, shall commence to run from the
date of his arrest thereon.
Where a case is before a circuit court
2
This appeal is based solely on whether Code  §  19.2-243 was
violated, not on appellant's constitutional right to a speedy
trial under the Sixth Amendment.




on appeal from a conviction of a misdemeanor
or traffic infraction in a district court,
the accused shall be forever discharged from
prosecution for such offense if the trial de
novo in the circuit court is not commenced
(i) within five months from the date of the
conviction if the accused has been held
continuously in custody or  (ii) within nine
months of the date of the conviction if the
accused has been recognized for his
appearance in the circuit court.
Appellant contends the statute's plain meaning is that the
five-month limitation applies when a defendant has been held
continuously in custody, no matter what authority or sovereign
holds the defendant in custody and no matter which sovereign's
charges held the defendant.
Under basic rules of statutory construction, we examine the
statute in its entirety, rather than by isolating words or
phrases.    Ragan v. Woodcroft Village Apartments,  255 Va.  322,
325,  497 S.E.2d  740,  742  (1998)  (citations omitted).    Therefore,
we examine all of the provisions of Code  §  19.2-243 to determine
the legislative intent.    The statute contains four events from
which the speedy trial time period is calculated, each depending
on the nature of the proceeding.    See Code  §  19.2-243.    First, if
there is a preliminary hearing, the time period is calculated
from the date of the preliminary hearing.    See id.    If the
accused "is held continuously in custody thereafter" he cannot be
prosecuted if the trial is not commenced with five months.    Id.
However, "if the accused is not held in custody but has been
recognized for his appearance in the circuit court to answer for
such offense," the time period is nine months.    Id.                     (emphasis
added).    Second, if the accused is arrested but has no




preliminary hearing or if the accused waives preliminary hearing,
the time period is calculated from the date of indictment.    See
id.    Third, when an indictment is found against the accused and
he is arrested thereafter, the time period is calculated from the
date of arrest thereon.    See id.    Finally, when an accused
appeals a misdemeanor or traffic infraction from general district
court, the time period is calculated from the date of conviction
in general district court.    See id.
In the second, third and fourth categories, the period of
time is calculated from an event where the court exercises a
degree of control, authority and rights over the accused, whether
it be by indictment, arrest or conviction.    Therefore, it follows
that the phrase "continuously in custody" contained in the first
paragraph of Code  §  19.2-243 can only refer to "custody" when the
court has control, authority and rights over the accused.    This
interpretation is further supported by other language in the same
paragraph.    The nine-month period applies "if the accused is not
held in custody but has been recognized for his appearance in the
circuit court to answer for such offense."    Id.  (emphasis added).
The language, "such offense," indicates the accused is released
on the subject offense.    Therefore, the incarceration also must
be for the subject offense.
Appellant cites Funk v. Commonwealth,  16 Va. App.  694,  432
S.E.2d  193  (1993), to support his position.    Funk escaped from
the Fauquier County jail on December  12,  1988 and was arrested in
Pennsylvania for unrelated charges committed in Pennsylvania.
See Funk,  16 Va. App. at  695,  432 S.E.2d at  193.    While Funk was
in prison in Pennsylvania, the Fauquier County Sheriff's Office




filed a detainer for extradition against him.    See id.    After
being released from prison in Pennsylvania, he returned to
Virginia, where he was arrested on unrelated charges in Hanover
County.    See id.    On January  4,  1991, he was detained on the
Fauquier County escape charge based on a teletype from Fauquier
County.    See id.    On April  9,  1991, he was arrested on the
Fauquier County escape charge.    See id.    Funk remained in custody
from January  4,  1991 until his August  28,  1991 trial in Fauquier
County on the escape charge.    See id.    We ruled that the
five-month period began on January  4,  1991, the date on which
Funk was detained on the Fauquier County escape charge.    See id.
at  695,  432 S.E.2d at  193-94.    We wrote, "[t]he teletype
constituted authority for the Hanover County Sheriff's
Department to arrest  [Funk]."3    Id. at  695,  432 S.E.2d at  194.
Therefore, we concluded that "at any time during that period,
Fauquier County could have obtained the defendant and brought him
to trial."    Id. at  695-96,  432 S.E.2d at  194.    We conclude from
Funk that the five-month period begins when a defendant is held
3 Code  §  19.2-81 states, in part:
Such officers may arrest, without a
warrant, persons duly charged with a crime
in another jurisdiction upon receipt of a
photocopy of a warrant, telegram, computer
printout, facsimile printout, a radio,
telephone or teletype message, in which
photocopy of a warrant, telegram, computer
printout, facsimile printout, radio,
telephone or teletype message shall be given
the name or a reasonably accurate
description of such person wanted and the
crime alleged.




on the charges involving the speedy trial issue or related
charges.    See also Clark v. Commonwealth,  4 Va. App.  3,  353
S.E.2d  790  (1987).    We further conclude from Funk that Funk's
imprisonment in a Virginia jail was a significant factor in the
decision because Fauquier County had control over obtaining the
defendant for trial.    See Code  §  19.2-81.
In Williamson v. Commonwealth,  13 Va. App.  655,  659,  414
S.E.2d  609,  611  (1992), we held that the five-month speedy trial
period did not begin until the defendant was delivered to the
custody of the Virginia Beach police by North Carolina
authorities.    Although Williamson addresses when "arrest" occurs
under the third paragraph of Code  §  19.2-243, it is nevertheless
instructive.    On September  5,  1998, Williamson was indicted in
Virginia Beach Circuit Court for receiving stolen property.    See
Williamson,  13 Va. App. at  656,  414 S.E.2d at  610.    Williamson
was never arrested on the Virginia Beach indictment, but he
ultimately was arrested and held in custody in Washington, North
Carolina, on unrelated charges.    See id.    Williamson was
convicted of the North Carolina charges on December  6,  1989, and
was committed to the North Carolina Department of Corrections.
See id. at  657,  414 S.E.2d at  610.    A detainer based on the
Virginia Beach indictment was lodged with the North Carolina
authorities on July  10,  1990.    See id.    On August  17,  1990,
Williamson executed a formal request to return to Virginia Beach
for a speedy trial pursuant to Code  §§  53.1-210 et seq.,4  the
Interstate Agreement on Detainers.    See id.
4 We do not address the Interstate Agreement speedy trial




On September  19,  1990, Williamson was delivered to Virginia
Beach and was arrested by the execution of a capias.    See id.    He
was tried and found guilty of the offense.    On appeal, he
contended the five-month period should have started on October
15,  1989, when the North Carolina authorities acknowledged
Virginia's request to hold him pending extradition.    See id. at
658,  414 S.E.2d at  610-11.    We held:
Detention in North Carolina on accusation of
being a fugitive is not the same as "arrest
thereon" with respect to the Virginia
indictment.    Appellant's detention in North
Carolina gave Virginia no rights with
respect to him.    It did not assert against
him the specific charge set forth in the
indictment.    The legality of the appellant's
detention in North Carolina was never
contested.    During his entire sojourn in
North Carolina, prior to the delivery of his
temporary custody to Virginia Beach
authorities, he was held under North
Carolina criminal process, first on charges
to be tried, and then as a convicted felon
under sentence.
Id. at  658-59,  414 S.E.2d at  611.
A detainer is an administrative device, serving only to
advise a sister state that the inmate is wanted to face criminal
charges.    See Rease v. Commonwealth,  227 Va.  289,  294 n.*,  316
S.E.2d  148,  151 n.*  (1984).    A detainer does nothing to commence
prosecution, see Ridgeway v. United States,  558 F.2d  357,  360
(6th Cir.  1977), nor does it bring the inmate into the "custody"
of the requesting jurisdiction.    See United States v. Carmen,  479
provision since it is not the subject of this appeal.




F.Supp.  1,  1-2  (E.D.Tenn.  1979)  (citation omitted), aff'd, Carman
v. United States,  601 F.2d  587  (6th Cir.  1979).
Appellant maintains that Funk and Williamson are
inconsistent, and because Funk was decided after Williamson, it
should take precedence over Williamson.    We disagree with
appellant and do not view the holdings in these two decisions as
inconsistent.    Indeed, they are consistent.
In both decisions, we determined when the local jurisdiction
obtained custody and rights over the defendant.    In Williamson,
the local jurisdiction obtained custody and rights over the
defendant when he was turned over to the Virginia Beach
authorities and arrested.    In Funk, the local jurisdiction
obtained custody and rights over the defendant when Fauquier
County teletyped Hanover County, requesting that Hanover County
detain the defendant on the Fauquier County charges.    We also
determined what jurisdiction held the defendant.    In Funk, it was
another political subdivision of the Commonwealth of Virginia.
In Williamson, it was the State of North Carolina, a separate
sovereign.    We also examined the charge upon which the defendant
was held.    In Funk, after Hanover County received the teletype
from Fauquier County the defendant was being held on the Hanover
and Fauquier charges.    In Williamson, the defendant was being
held solely on North Carolina charges in North Carolina.
Appellant contends, although he was held by federal
authorities on federal charges, the federal charges arose from
the subject wounding charge.    Appellant, therefore, reasons that
the trial court should have considered the fact that the federal
probation violation was based on the instant offense.




Essentially, appellant argues the underlying facts of the subject
charge and the federal charge for which he was detained are so
inextricably interwoven that we should consider him detained by
the federal authorities on the state charge.    Appellant relies on
Clark v. Commonwealth,  4 Va. App.  3,  353 S.E.2d  790  (1987), to
support his position.    We disagree.
Clark supports a finding in this case that a speedy trial
violation did not occur.    Clark was charged with attempted
robbery, among other offenses.    See Clark,  4 Va. App. at  4,  353
S.E.2d at  791.    The indictments were dismissed because of a
violation of Code  §  19.2-243.    See id.    The following month, the
Commonwealth indicted Clark for conspiracy to commit the
substantive offenses that were dismissed earlier.    See id.    We
ruled that speedy trial rights are not limited to the offense
charged but also require the discharge of any offense based on
the same conduct.    See id. at  6,  353 S.E.2d at  792.    We
concluded:
Code  §  19.2-243 is intended to assure
the defendant's right to a speedy trial and
society's interest in "swift and certain
justice."    To allow the prosecution to
circumvent this by "delaying trial on one
charge and subsequently proceeding on another
closely related charge" foils both society's
and a defendant's interest in speedy justice.
This practice would shift the legislative
determination of a speedy trial from the
General Assembly to the prosecuting attorney.
The General Assembly's intent should not be
so easily frustrated.
The conspiracy charges and the
underlying substantive offenses were based on
the same act or transaction and thus could be
joined for trial.    See Rules  3A:10(b) and
3A:6(b).    The evidence used to prove the
conspiracy charges was the same that would
have been required to prove the underlying




substantive offenses, and the conspiracy
charges could have been included in the same
indictment and tried contemporaneously with
the underlying substantive offenses.
Therefore, we conclude that the discharge
from prosecution for the substantive offenses
also bars the Commonwealth from prosecuting
the defendant for conspiracy charges based on
the same offenses, and the trial court erred
in denying the defendant's motion to dismiss
these charges for failure to provide him a
speedy trial under Code  §  19.2-243.
Id. at  6-7,  353 S.E.2d at  792.
Our analysis of the related offenses was premised on the
fact that the related offenses could be joined for trial and
tried by the same jurisdiction.    See id.    Appellant's argument
under Clark fails because the federal probation violation and the
state's substantive offense could not be joined for trial or even
tried by the same sovereign.
In this case, as in Williamson, Albemarle County obtained
custody and the right to control appellant when the federal
authorities delivered appellant to the Albemarle authorities.
Even then, Albemarle had very limited rights to appellant.    The
Federal Bureau of Prisons wrote, "This inmate may not be released
on bail or bond while in your custody.    Additionally, this inmate
is not to be committed to a state correctional institution for
service of any state sentence(s) that may be imposed as a result
of your prosecution."    Appellant was temporarily transferred to
Virginia authorities for the trial and then returned to the
federal authorities after the trial.    Therefore, appellant still
remained under the primary jurisdiction of the federal
authorities.




As to the remaining two prongs, federal authorities held
appellant in federal facilities upon federal charges.    For the
reasons stated above, the fact that the federal probation
violation was based on the subject charge is of no consequence.
We, therefore, conclude appellant was not held continuously
in custody within the meaning of the speedy trial statute until
he was delivered to Albemarle authorities on July  31,  1997;5
thus, he was brought to trial in timely manner.    Finding that the
trial took place within the time period set by the statute, we
need not address whether the delays occasioned by the
continuances were chargeable to the Commonwealth.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
5 The record does not indicate whether appellant remained in
Albemarle until the November  4,  1997 trial or whether he was
returned to the federal authorities, but that fact is not
relevant to this analysis.

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