Mark A. Michael v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Hodges
Argued by teleconference
MARK A. MICHAEL
MEMORANDUM OPINION * BY
v. Record No. 2451-98-1 JUDGE RICHARD S. BRAY
JUNE 6, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Jr., Judge
Jon M. Babineau for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Mark A. Michael (defendant) was convicted in a bench trial
of seven felonies and two misdemeanors. On appeal, defendant
complains that the convictions resulted from trial in violation
of his statutory right to a speedy trial assured by Code
§ 19.2-243. We disagree and affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
The procedural history is uncontroverted. Preliminary
hearings on the offenses were conducted April 9, 1997 and April
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
10, 1997, indictments followed in the trial court and trial was
scheduled, by agreement of counsel, for August 11, 1997. On
August 10, defendant determined that he "wanted a continuance"
to pursue certain DNA evidence and contacted the Commonwealth's
attorney to seek concurrence in the motion. Both counsel agreed
to continue trial from August 11, 1997, upon defendant's motion,
and jointly spoke with the "judges secretary" to convey such
request to the court. During the conversation, "[i]t was made
known to [them] that the continuance would be granted," on
defendant's motion. As further agreed, the Commonwealth
appeared before the court the following day, the trial date, and
shepherded the continuance through the docket.
In early December 1997, the Commonwealth noted the absence
of an order reflecting the August continuance and sought the
concurrence of defendant's counsel in a nunc pro tunc order
memorializing the earlier proceedings. Counsel, however,
advised that he "would not be in a position to sign [an] order
nunc pro tunc." Accordingly, a hearing was conducted on
December 12, 1997, to address the Commonwealth's motion for
entry of the nunc pro tunc order, defendant's objection and his
related motion to dismiss pursuant to Code § 19.2-243.
Although no transcript of the August proceedings was
available, the events that attended the continuance were
recounted to the court, without dispute, by both counsel.
Moreover, Deputy Clerk Pam Milano testified that, on August 11,
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1997, she noted on the daily trial "work sheet," a part of the
record in the instant proceedings, that the case was "continued
by motion of the defendant by counsel generally." Milano
confirmed that her notations recited "what [she] . . . heard" in
court that day. Both counsel acknowledged defendant had been in
custody continuously since the preliminary hearings.
At the conclusion of the hearing, the trial court concluded
that defense counsel had "requested or acquiesced in the motion
for a continuance," circumstances documented by the deputy
clerk. The court, therefore, denied defendant's motion to
dismiss the prosecution and entered an order nunc pro tunc,
which granted a continuance of the August 11, 1997 trial date,
upon "motion of the defendant by counsel."
On appeal, defense counsel concedes that he "wanted" the
continuance and pursued it with both the Commonwealth and the
court. However, defendant now seeks to disassociate himself
from such relief, albeit granted at his request, challenging the
sufficiency of the nunc pro tunc order to properly document the
proceedings.
II.
Code § 19.2-243, in pertinent part, provides:
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
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court within five months from the date such
probable cause was found by the district
court[.]
The statute, however, enumerates several circumstances that toll
the prescribed period, including delay caused "[b]y continuance
granted on the motion of the accused or his counsel, or by
concurrence of the accused or his counsel in such a motion by
the attorney for the Commonwealth." Code § 19.2-243(4). A
"proper assessment and determination of the merits of a Code
§ 19.2-243 claim involve a review of the whole record and a
consideration of the trial court orders in . . . context."
Baity v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d 891, 895
(1993) (en banc).
It is well established that a trial court may, at any time,
correct "[c]lerical mistakes in all judgments or other parts of
the record and errors therein arising from oversight or from an
inadvertent omission[.]" Code § 8.01-428(B). Moreover, a
"trial court has the inherent power, independent of statutory
authority, to correct errors in the record so as to cause its
acts and proceedings to be set forth correctly." Davis v.
Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996) (citing
Council v. Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248
(1956)). Thus, "the purpose of a nunc pro tunc entry is to
correct mistakes of the clerk or other court officials, or to
settle defects or omissions in the record so as to make the
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record show what actually took place." Council, 198 Va. at 293,
94 S.E.2d at 248 (citation omitted).
Here, the record clearly establishes that trial was
continued from August 11, 1997, upon defendant's motion, and the
disputed nunc pro tunc order simply corrected the inadvertent
omission of a contemporaneous order memorializing the event, as
otherwise reflected in the record. Thus, Code § 19.2-243 was
tolled on August 11, 1997. 1
Accordingly, there was no violation of defendant's
statutory right to a speedy trial, and we affirm the
convictions.
Affirmed.
1
Defendant does not contend that his right to a speedy
trial was violated if the August continuance is attributed to
his motion.
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