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. 
- 2 - 

 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 
- 3 - 

§ 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 
- 4 - 

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 
- 5 - 

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 
- 6 - 

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.