                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia


CHRISTOPHER TORIAN
                                           MEMORANDUM OPINION *
v.          Record No. 2412-94-2        BY JUDGE JOSEPH E. BAKER
                                             JULY 30, 1996
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                  Charles L. McCormick, III, Judge
            Charles A. Butler, Jr. (Vaughan & Slayton; on
            briefs), for appellant.

            Richard H. Rizk, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Christopher Torian (appellant) appeals from a judgment of

the Circuit Court of Halifax County (trial court) that approved

his jury convictions of second degree murder in violation of Code

§ 18.2-32 and use of a firearm in the commission of a felony in

violation of Code § 18.2-53.1.     Finding no error, we affirm.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.    Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987).    Viewed accordingly, the

record discloses that between November 28-29, 1993, appellant was

arrested for murder and the use of a firearm in the commission of

a felony.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        On November 30, 1993, Buddy A. Ward (Ward), of the public

defender's office, was appointed to represent appellant.

        Appellant's preliminary hearing was held on February 15,

1994.    Probable cause was found, and the case was certified to a

grand jury.    In March 1994, indictments were returned against

appellant and the case was scheduled for a jury trial on June 30,

1994.

        On June 19, 1994, Ward requested leave to withdraw from

representation of appellant due to a conflict of interest.       The

trial court granted Ward's motion on June 23, 1994 and appointed

David F. Guthrie, Jr. (Guthrie) to represent appellant.
        On or about June 27, 1994, the trial court continued

appellant's case until the September term, with the trial date to

be rescheduled on August 22, 1994.       No motion or order concerning

the continuance was included in the record.

        On August 22, 1994, appellant and the Commonwealth agreed to

a trial date of October 14, 1994.

        On August 24, 1994, Guthrie moved to withdraw from

representation of appellant for health reasons.      The trial court

granted the motion and appointed Charles A. Butler, Jr. (Butler)

and Brandon Hudson (Hudson) to represent appellant.

        On October 11, 1994, the trial court ordered Hudson to

withdraw from representation of appellant due to a conflict of

interest.    Butler continued representation, and appellant filed a

motion to dismiss for lack of a speedy trial as defined by Code




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§ 19.2-243.

        The trial court heard the motion to dismiss on October 13,

1994.    Over appellant's objection, appellant's former counsel,

Guthrie, was permitted to testify at the hearing.    Guthrie

testified that appellant's original trial, scheduled for June 30,

1994, was continued until the September term because he met with

the trial court, ex parte, and moved for a continuance on the

ground that he was not adequately prepared.    Guthrie opined that

it was in appellant's best interest to have the case continued

and that trying the case on June 30 would have prejudiced

appellant.    The trial court denied appellant's motion.

Thereafter, on October 14, 1994, appellant was tried and

convicted.
        In May 1995, appellant's petition for appeal to this Court

was granted with respect to the speedy trial issue.

        In July 1995, the Commonwealth filed a motion with this

Court praying for leave to allow the trial court to correct an

error in the record by entry of a nunc pro tunc order.
        On September 19, 1995, this Court granted leave and remanded

the matter to the trial court to determine whether a nunc pro

tunc order, pursuant to Code § 8.01-428, was "appropriate under

the law" and, if so, to enter such an order.    Additionally, this

Court ordered appellant and the Commonwealth to address the issue

of whether the entry of a nunc pro tunc order was proper and

whether this Court could consider such an order when considering



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the speedy trial issue.

     On September 25, 1995, the trial court, after a hearing on

the issue, entered a nunc pro tunc order.       The order recited, in

part, as follows:
          [that] the defendant requested a continuance
          on June 27, 1994 of his trial scheduled for
          June 30, 1994, and the court ordered a
          continuance pursuant to the defendant's
          request to a date to be set at the August 22,
          1994 docket call for the September term.


     On appeal, appellant challenges (1) the validity of the nunc
pro tunc order entered by the trial court, (2) this Court's

ability to consider the nunc pro tunc order, and (3) the trial

court's determination that his statutory right to a speedy trial

was not denied.

                          Nunc Pro Tunc Order

     A "court has the inherent power, based upon any competent

evidence, to amend the record at any time . . . so as to cause

its acts and proceedings to be set forth correctly."       Netzer v.

Reynolds, 231 Va. 444, 449, 345 S.E.2d 291, 294 (1986).       See also
Council v. Commonwealth, 198 Va. 288, 94 S.E.2d 245 (1956).      In

Council, the Court noted that "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 record show what actually took place."       Council, 198

Va. at 293, 94 S.E.2d at 248.    Clearly, under Council and Netzer,

the trial court has the power to amend the record.      It is clear

that the trial court's entry of the nunc pro tunc order served


                                 - 4 -
only to "cause its acts and proceedings to be set forth

correctly" in the record.   See also Code § 8.01-428(B), which

grants a court the authority to correct errors in the record that

arise from oversight or "inadvertent omission."   It is clear

that, as the trial court found, the failure to memorialize the

continuance in the record was an inadvertent omission.

     Appellant's assertion that proof aliunde cannot be the basis

for an order nunc pro tunc when a constitutional or substantive

right is at issue is without merit.    Catlett v. Commonwealth, 198

Va. 505, 95 S.E.2d 177 (1956), on which appellant relies, stands

only for the proposition that proof aliunde cannot be used to

cure the Commonwealth's failure to comply with Article 1, Section

8 of the Virginia Constitution, which requires that a defendant's

waiver of trial by jury and the concurrence of the Commonwealth

and the court thereto be "entered of record."

     Having determined that the trial court's entry of the nunc

pro tunc order was appropriate, we turn to the issue of whether

we may consider such order when resolving appellant's speedy

trial claim.   Relevant to that determination, Code § 8.01-428(B)

provides, in pertinent part, that "during the pendency of an

appeal, . . . mistakes may be corrected before the appeal is

docketed in the appellate court, and thereafter while the appeal

is pending such mistakes may be corrected with leave of the

appellate court."

     Because appellant's appeal was pending and had already been



                               - 5 -
docketed, the Commonwealth sought, and this Court granted, leave

to have the trial court enter a nunc pro tunc order if it

determined that doing so would be appropriate.   In seeking leave

from this Court, the Commonwealth fully complied with the

procedural requirement of Code § 8.01-428(B).    Therefore, finding

that all procedural aspects of Code § 8.01-428(B) were complied

with and having determined that the entry of the nunc pro tunc

order was appropriate under the law, we find nothing which

prohibits us from considering such order in determining whether

appellant's statutory right to a speedy trial was violated.
                          Speedy Trial

     In Stinnie v. Commonwealth ___ Va. App. ___, ___ S.E.2d ___

(1996), in an en banc hearing, this Court considered the same

issue and similar facts to those appellant presents here.    In

Stinnie, the Court rejected appellant's speedy trial argument,

and we are bound by that decision.    For the reasons stated in

Stinnie, we affirm the trial court's conclusion that, pursuant to

the provisions of Code § 19.2-243, appellant was timely tried.

     For the foregoing reasons, the judgment of the trial court

is affirmed.
                                                          Affirmed.




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