                   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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