Larry Furches Blevins, Sr. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Richmond, Virginia
LARRY FURCHES BLEVINS, SR.
MEMORANDUM OPINION * BY
v. Record No. 1264-96-3 CHIEF JUDGE NORMAN K. MOON
SEPTEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Keary R. Williams, Judge
Michael Morchower; David L. Scyphers (Anthony
G. Spencer; Morchower, Luxton & Whaley;
Johnson, Scyphers & Austin, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Larry Furches Blevins, Sr. appeals his jury trial conviction
of forcible sodomy in violation of Code § 18.2-67.1. Blevins
asserts that (1) the trial court improperly rejected his speedy
trial claim; (2) the evidence was insufficient as a matter of law
to prove intimidation so as to justify a conviction of forcible
sodomy; and (3) the evidence was insufficient to show the intent
necessary to sustain a conviction of forcible sodomy. We agree
that he was denied a speedy trial, and therefore, we reverse and
dismiss.
Blevins was charged with forcible sodomy. At the
preliminary hearing on March 2, 1995, the juvenile court judge
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
found probable cause to certify the charge to the grand jury.
The grand jury indicted Blevins on May 9, 1995. Blevins was not
held continuously in jail on the charge from the date of the
probable cause hearing until trial. At docket call on July 12,
1995, in the absence of the Commonwealth's attorney and Blevins'
attorney, the court set the case for trial on October 26, 1995.
That date was not convenient for Blevins, so his counsel
contacted the Commonwealth's attorney to discuss a continuance.
The Commonwealth's attorney prepared an order memorializing the
continuance and sent that order to Blevins' attorney, who
endorsed it, "Requested," and returned it to the Commonwealth's
attorney. However, the order was never presented to the court
for entry, and neither party made a motion to continue the case.
The trial court nevertheless found that Blevins requested a
continuance and issued an order nunc pro tunc to that effect on
March 21, 1996, more than twelve months after the juvenile
court's finding of probable cause. Blevins' counsel objected to
the court's issuance of the order nunc pro tunc. The court
denied Blevins' motion to dismiss, and he was tried and
convicted.
SPEEDY TRIAL AND ORDERS NUNC PRO TUNC
Code § 19.2-243 provides, in pertinent part:
Where a general district court has found that
there is probable cause to believe that the
accused has committed a felony, . . . 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 within nine months
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from the date such probable cause was found.
The Code further provides that the period of limitation shall be
tolled for any period of time that the failure to try the accused
was attributable to any of five enumerated causes, including
[a] continuance granted on the motion of the
accused or his counsel, or by concurrence of
the accused or his counsel in such motion by
the attorney for the Commonwealth, or by
failure of the accused or his counsel to make
a timely objection to such a motion by the
attorney for the Commonwealth . . . .
Code § 19.2-243(4).
This appeal is controlled by Heflin v. Commonwealth, 211 Va.
407, 177 S.E.2d 644 (1970), in which the Supreme Court of
Virginia held that although the trial court, after hearing
evidence, found that the case had been continued by agreement,
because no court entry upon the record reflected such a
continuance, the finding could not be accepted. Trial courts may
enter orders nunc pro tunc only to correct defects or omissions
in the record so as to make the record show what actually took
place on a prior occasion. Code §§ 8.01-428(B) and 8.01-677, see
Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996).
Because the trial court never considered a motion for a
continuance and never ordered a continuance, there was no defect
or omission in the record. Therefore, the trial court lacked
authority to issue an order nunc pro tunc reciting that a
continuance had been granted when in fact the court had not
granted a motion for a continuance on the motion of or with the
concurrence of the defendant. The nunc pro tunc order is thus
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invalid and cannot bar Blevins' speedy trial claim. Because we
find that Blevins was not tried within the time prescribed by
Code § 19.2-243, we must reverse the conviction and dismiss the
charge. We need not address Blevins' other questions.
Reversed and dismissed.
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