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. 
- 2 - 

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 
- 3 - 

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 
- 4 - 

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 
- 5 - 

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

 

 1Our decision in Baity indicates that the grant of a motion 

for continuance may nonetheless constitute a delay accommodated 
- 6 - 

 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.