                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Benton and Coleman
Argued at Salem, Virginia


LARRY DEAN BLACKBURN
                                         MEMORANDUM OPINION * BY
v.         Record No. 2166-96-3         JUDGE SAM W. COLEMAN III
                                            OCTOBER 14, 1997
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                      Keary R. Williams, Judge
           David L. Epling for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.



     Larry Dean Blackburn was convicted by a jury of possession

of cocaine and possession of a firearm while in possession of

cocaine.   On appeal, he contends that his conviction violated his

statutory right to a speedy trial under Code § 19.2-243.    We

agree.   Accordingly, we reverse the conviction and dismiss the

charges.
                           I.   BACKGROUND

     On October 9, 1995, the appellant was indicted.     On that

day, the trial court appointed counsel for him.   The Commonwealth

suggested that the trial be set for November 6, 1995.     The

following colloquy occurred:
          DEFENSE COUNSEL: Your Honor, if it please
          the Court, given my previous schedule, could
          we get back to you on a court date? I might
          have to make a motion to continue this case
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
          for the term. I don't want to do that right
          now. I may would [sic] like the Court to
          consider that motion within the next ten
          days.

          PROSECUTOR: Your Honor, could we likewise
          set this one for the 26th and at that
          juncture we can set a trial date?

          THE COURT: All right. October 26th, Mr.
          Blackburn, with the thought in mind that on
          that day we're going to schedule this matter
          for trial. It's not going to be on for the
          26th for the actual trial. We're going to
          look that day and find a trial date . . . .

     The parties stipulated that the circuit court clerk's

minute book contained the following entry for October 9, 1995:

"[Commonwealth] ask[s] that cases be set for 11-6-[95].

[Defendant] ask[s] that cases be set for trial on Old Felony Day,

Case set for 10-26-95 to set trial."   A trial date was not set on

October 26, 1995.   On February 12, 1996, the trial court

scheduled the trial for March 14, 1996.   Appellant was held in

continuous custody until his trial on June 24, 1996.

     On March 12, 1996, the appellant moved to dismiss the

charges on the ground that the Commonwealth had violated his

right to a speedy trial under Code § 19.2-243.   The trial judge

ruled that appellant's request to set the trial date on Old

Felony Day was a motion for a "continuance."   The trial judge

then entered an order nunc pro tunc reciting that the appellant

had requested and been granted a continuance from October 9 until

October 26.   The trial judge ruled that the Commonwealth did not

violate the appellant's speedy trial rights because the 17 day




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delay was attributable to the continuance requested by the

appellant.    The appellant was convicted on both charges.

                             II.   ANALYSIS

     Code § 19.2-243 provides that an accused, if held

continuously in custody from the time when probable cause is

determined by the district court, "shall be forever discharged

from prosecution . . . if no trial is commenced . . . within five

months from the date . . . probable cause was found."       The

running of this statute may be tolled for any of several reasons

specified by the statute, including delays where the failure to

try the accused was caused 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, 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 . . . .


Code § 19.2-243(4).    The Commonwealth bears the burden of proving

that any such delay was caused by one of these enumerated

exceptions.     See Norton v. Commonwealth, 19 Va. App. 97, 99, 448

S.E.2d 892, 893 (1994).

     Nonetheless, "some delay is unavoidable and some is

essential to due process."     Stephens v. Commonwealth, 225 Va.

224, 231, 301 S.E.2d 22, 25 (1983).        Delays "commonly experienced

in the orderly administration of justice [are] necessarily

included within or factored into the time limitations of [Code

§ 19.2-243]."     Baity v. Commonwealth, 16 Va. App. 497, 505, 431




                                   - 3 -
S.E.2d 891, 896 (1993) (en banc).     Thus, Code § 19.2-243

contemplates within its time limitations that some delay is

inherent and necessary to prepare a case for trial and to fix a

trial date in an orderly manner.     Id.   In this respect, we held

in Baity that the delay in setting a trial date in order to allow

a defendant a reasonable time to retain counsel is "inherent in

the orderly process of fixing a timely trial date," and, thus,

does not extend the statutory time limitations for a speedy

trial.   Id. at 507, 431 S.E.2d at 897; see Nelms v. Commonwealth,

11 Va. App. 639, 640, 400 S.E.2d 799, 800 (1991) (holding that

where accused was appointed counsel and case was continued to

next docket call without trial date being scheduled resulting

delay did not cause failure to try accused but rather was

necessary step to prepare case for trial).

     Here, as in Baity, on the same day that the appellant was

indicted, the parties and court agreed to delay the scheduling of

a trial date until October 26.    A brief delay following

indictment in scheduling cases for trial is customary to the

trial court's orderly and timely docketing of cases for trial.

Neither the defendant nor the Commonwealth requested a

continuance, and the trial judge did not grant a continuance;

rather the parties and trial judge agreed upon a date on which

they would convene in order to schedule the case for trial.

Accordingly, the time between October 9, when the defendant was

indicted, until October 26, the date on which they were to decide



                                 - 4 -
upon a trial date, was "inherent in the process of fixing a

timely trial date" as contemplated by Code § 19.2-243, and was

not a continuance that prevented appellant's case from being

scheduled within the statutorily prescribed period.

     Furthermore, the trial judge's entry of an order nunc pro

tunc stating that the appellant moved for and was granted a

continuance does not establish that a continuance was granted.

The clerk's journal entry and the facts show that the parties and

court merely agreed to a date on which a trial date would be set

and in no way shows that the court granted a continuance.       A

trial court may enter an order nunc pro tunc to reflect judicial
action that was, in fact, taken or to correct defects or

omissions in the record so as to make the record confirm actual

prior events.   Code § 8.01-428(B).    Such an order may not,

however, be created to remediate an error of the court or to

reflect what the court should have done as distinguished from

what actually occurred.   See Council v. Commonwealth, 198 Va.

288, 292, 94 S.E.2d 245, 248 (1956).

     Moreover, the record is devoid of judicial action that is

equivalent to granting a continuance.    Rather, the trial court

attempted, after the fact, to establish that it had granted a

continuance, when, in fact, the parties and the court merely

agreed to a date on which they would schedule trial.    Thus, the

trial court's order nunc pro tunc is invalid. 1
     1
      Our decision in Baity indicates that the grant of a motion
for continuance may nonetheless constitute a delay accommodated



                               - 5 -
     For these reasons, we hold that the Commonwealth failed to

bring the appellant to trial within the period prescribed by Code

§ 19.2-243.   Accordingly, we reverse and dismiss the appellant's

conviction, and further discharge the appellant from prosecution

for these offenses.

                                         Reversed and dismissed.




(..continued)
by the time limits in Code § 19.2-243. See Baity, 16 Va. App. at
503, 431 S.E.2d at 895 ("[A] continuance or delay was necessary
to prepare the case so that the trial judge could 'fix a day of
his court.'") (emphasis added). Indeed, in Baity, the trial
court initially entered an order continuing the matter "on motion
of [the defendant]." Id. at 500, 431 S.E.2d at 893. Because we
find the trial court's order reflecting a continuance to be
invalid, we need not consider this aspect of Baity.



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