                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


CALVIN FILES

v.         Record No. 0896-94-1          MEMORANDUM OPINION*
                                      BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                  OCTOBER 10, 1995


           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                     E. Everett Bagnell, Judge
           Robert O'Neill, Public Defender, for appellant.

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



     Calvin Files (appellant) appeals from judgments of the

Circuit Court of Southampton County (trial court) that approved a

jury verdict convicting him of robbery and attempted capital

murder.   In this appeal, he contends that the trial court erred

when it failed to grant his motion to modify two trial court

orders entered respectively on August 9 and October 19, 1993, and

that the trial court further erred when it denied his motion to

dismiss both charges based upon a claim that he was not brought

to trial within the limitation set by Code § 19.2-243, generally

referred to as the speedy trial statute.   Because sufficiency of

the evidence is not an issue, we refer only to the facts relating

to the speedy trial and the contents of the two orders.


____________________

     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
        Appellant was arrested on April 12, 1993.   At a preliminary

hearing held on June 21, 1993, probable cause was found.      On July

19, 1993, appellant was indicted, charged with robbery and

attempted capital murder, whereupon trial was set without a jury

for September 2, 1993.    From the date of the preliminary hearing,

appellant has remained in custody.

        At his arraignment on July 28, 1993, appellant pled not

guilty and advised the court that he desired to be tried by a

jury.    At that time, appellant was being represented by the

Public Defender who had sent his assistant to represent appellant

at arraignment.    Neither the prosecutor nor the Public Defender's

assistant could affirm a specific trial date at that time.      The

prosecutor advised the trial court that he would call the Public

Defender later that afternoon and give him the available dates.

The trial court responded, acknowledging to appellant that the

cases "will be set for trial by jury, . . ., at a date to be

determined later today with the concurrence of your attorney."

The Assistant Public Defender told the court that she would

inform the Public Defender.
        On August 9, 1993, the trial court entered an order

documenting the events occurring at the arraignment, a portion of

which provided that "after having first been advised by his

attorney and the Court of his right to trial by a jury and with

the concurrence of the Attorney for the Commonwealth and the

Court . . . this case is continued on the motion of the defendant



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from the 28th day of July, 1993, to the 20th day of September,

1993, at which time this case will be set for trial by a jury and

continued to a new date on motion of defendant."   At the time,

appellant made no objection to the entry of that order and no

motion to alter its content.   By agreement, the matter was set to

be heard by a jury on October 7, 1993.

     On October 7, 1993, the matter was again continued.      The

victim had been subpoenaed by the Commonwealth but did not appear

due to trial date confusion.   The Commonwealth moved for a

continuance to which appellant's counsel replied, "Under these

circumstances * * * we would concur * * * I don't object."     The

attorneys agreed that the cases would be continued until the

current jury panel's term ended on November 15, 1993, and the new

panel was assembled.   Counsel for appellant stated, "I

specifically concur with that."
     On October 19, 1993, the trial court again documented the

events of October 7, 1993, by entering an order reciting that the

case was being continued to November 15, 1993 on the motion of

the Commonwealth, "at which time the case will again be set for

trial by a jury and continued to a new date on motion of the

defendant."   On November 15, 1993, the case was set to be tried

on January 6, 1994.    Again, there was no objection made to the

entry of that order or a motion to alter it.

     On December 27, 1993, appellant moved to have the charges

dismissed with prejudice on speedy trial grounds provided by Code




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§ 19.2-243.   On January 6, 1994, appellant moved that arguments

on the motion be continued to January 25, 1994 to allow time to

prepare transcripts of prior proceedings and thereafter to March

10, 1994 in the event his motion be denied.      On March 3, 1994,

appellant filed additional motions asking that the August 9, 1993

and October 19, 1993 orders be modified to delete references that

the continuances were on his motions or with his concurrence.        On

March 10, 1994, the trial court denied all of appellant's motions

and trial on both charges was held, resulting in the convictions

which are the basis for this appeal.
     In relevant part, Code § 19.2-243 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 court
          within five months from the date such
          probable cause was found by the district
          court;

                     *   *   *    *      *   *   *

            The provisions of this section shall not
          apply to such period of time as the failure
          to try the accused was caused:
            1. By his insanity or by reason of his
          confinement in a hospital for care and
          observation;
            2. By the witnesses for the Commonwealth
          being enticed or kept away, or prevented from
          attending by sickness or accident;
            3. By the granting of a separate trial at
          the request of a person indicted jointly with
          others for a felony;
            4. By 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,



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           or by the failure of the accused or his
           counsel to make a timely objection to such a
           motion by the attorney for the Commonwealth,
           or by reason of his escaping from jail or
           failing to appear according to his
           recognizance; or
             5. By the inability of the jury to agree
           in their verdict.


     The exceptions contained in that Code section are not meant

to be all inclusive, but others of a similar nature may be

implied.   Stephens v. Commonwealth, 225 Va. 224, 230, 301 S.E.2d

22, 25 (1983).
                          I.   The Orders

     Appellant argues that the orders entered respectively on

August 9, 1993 and October 19, 1993 did not accurately contain

the events that occurred with regard to motions for, or

concurrence with, the several continuances.   He filed no motion

to modify those orders until March 3, 1994.   "'Where a defendant

does not object to the accuracy of an order within 21 days after

its entry, an appellate court may presume that the order, as the

final pronouncement on the subject, rather than a transcript that

may be flawed by omissions, accurately reflects what

transpired.'"    Thomas v. Commonwealth, 16 Va. App. 851, 861, 434

S.E.2d 319, 325 (1993) (quoting Stamper v. Commonwealth, 220 Va.

260, 280-81, 257 S.E.2d 808, 822 (1979), cert. denied, 445 U.S.

972 (1980)).   At appellant's request, the trial court reviewed

the transcripts and, after hearing and considering all the

evidence, denied the motions, thereby finding that the orders

accurately reflected that appellant had either moved for or



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concurred with the trial delays, and that nothing in the

transcripts justified changing the findings contained therein.

We find no error in the trial court's refusal to modify the

August 9, 1993 and October 19, 1993 orders.

                        II.    Speedy Trial

     Code § 19.2-243 requires that the trial of an accused who

remains incarcerated must commence within five months after the

preliminary hearing at which probable cause was found.     O'Dell v.
Commonwealth, 234 Va. 672, 681, 364 S.E.2d 491, 496, cert.

denied, 488 U.S. 871 (1988).   That Code section is the

legislature's interpretation of what constitutes a "speedy trial"

as that term is used in the Bill of Rights.   Flanary v.

Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 (1945).    In

this case, appellant's trial began 262 days after a finding of

probable cause; therefore, appellant asserts that his trial did

not commence within the period provided by Code § 19.2-243.    For

the reasons that follow, because appellant either moved for or

concurred with the several continuances, we hold that at least

154 days should be excluded from consideration of Code

§ 19.2-243, see Corey v. Commonwealth, 8 Va. App. 281, 284, 381
S.E.2d 19, 20 (1989), and thus, no violation occurred.

     The order entered on October 19, 1993 reflects that on

October 7, 1993, appellant moved that the trial of the case be

continued to November 15, 1993.   Appellant concedes he concurred

in this continuance, resulting in a 39-day delay not chargeable




                                - 6 -
to the Commonwealth.   However, appellant asserts that the 52-day

period between November 15, 1993 and January 6, 1994 must be

counted as delay time to the Commonwealth.   We disagree.   The

record discloses that when the case was continued from October 7,

1993, it was mutually agreed that the new trial date was to be on

a "date subsequent to the next term day of court" to be selected

by agreement of the parties who would then advise the court so

that an appropriate order could be prepared reflecting the

agreement.    Appellant "specifically concur[red] with that"

procedure; therefore, that 52-day delay is also not chargeable to

the Commonwealth.
     In December 1993, appellant moved that the charges against

him be dismissed pursuant to the provisions of Code § 19.2-243.

On January 6, 1994, appellant moved the trial court to continue

the matter to January 25, 1994 for argument on his motion to

dismiss, and further moved that in the event the trial court

denied his motion, trial on the charges be continued further to

March 10, 1994.   Appellant's "speedy trial" motion was denied and

he was tried and convicted on March 10, 1994, 262 days after

probable cause had been found.

     The Commonwealth was required to commence trial on the

charges within five months of a finding of probable cause, which

in this case was 153 days, unless the time for trial could be

extended by reasons of the exceptions contained in Code

§ 19.2-243.   The record discloses that by appellant's various




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motions for or concurrence with motions to continue, a 154-day

delay must be deducted from the 262 days of delay when

determining whether Code § 19.2-243 barred this prosecution.   The

result is clear that applying the exceptions contained in that

Code section, appellant's trial was commenced within 108 days and

that there was no violation of Code § 19.2-243.

     Accordingly, for the reasons stated, the judgments of the

trial court are affirmed.

                                             Affirmed.




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