COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Coleman Argued at Chesapeake, Virginia

CEDRIC PLATHER MEMORANDUM OPINION * BY v. Record No. 1017-08-1 JUDGE SAM W. COLEMAN III MARCH 24, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Scott J. Flax (Tavss, Fletcher, Ma iden & Reed, P.C., on briefs), for appellant. Gregory W. Franklin, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Cedric Plather appeals his convictions for robb ery, stabbing in the commission of a felony, and aggravated maiming. Plather argues the trial judge erred in denying his motion to dismiss due to a statutory speedy trial violation. In support of that argument he further contends the court erred by denying his request to correct a “continuance” order to accurately reflect that no continuance was requested because no trial had been scheduled an d rather this was merely the initial scheduling hearing. We agree that the trial court failed to grant appellant a spee dy trial within the requirements of Code § 19.2-243. 1 Accordingly, we reverse the convic tions, and dismiss the indictments. On April 14, 2007, Plather was arrested for robb ery, unlawful stabbing in the commission of a felony, and malicious wounding . On May 8, 2007, a preliminary probable cause hearing was

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Because the record enables us to determine th e nature of the proceedings before the trial court, without regard to the order being styled a “Continuance Order,” we need not specifically address whether the court erred by refusing to modify the order.- 2 - held, at which Plather was bound over to the grand ju ry. On July 2, 2007, Plather was indicted for robbery, unlawful shooting in th e commission of a fe lony, and aggravated malicious wounding. 2 On July 9, 2007, Plat her appeared in court on the July 2 indict ments. Plather informed the court that he had retained attorney Sc ott J. Flax and that he wanted a jury trial. Flax was not present at the hearing. The court asked the pros ecutor for available trial dates, and the prosecutor provided dates in October. The court then set the trial for Oc tober 31, 2007 and stated , “and this will be on defendant’s motion for Cedric Plathe r.” The court instructed Plather to inform his attorney of the trial date. The July 9, 2007 or der, memorializing the proceeding s, was styled a “Continuance Order,” and provided, “On the motion of the defe ndant, by counse l there being no objection on behalf of the Assistant Attorney for the Commonwealth, the Court dot h continue this matter until October 31, 2007, at 9:00 o’clock A.M. for a jury trial.” Neit her counsel endorsed the order as the court dispensed with the attorneys’ endorsement pursuant to Rule 1:13. The order also stated that Jeffery Flax, and not Scott J. Flax , represented Plather. Plather wa s continuously held in custody from the time of his arrest until the day of his trial. On October 31, 2007, the trial was continued by agreement of the parties to November 20, 2007. On November 20, 2007, over Plather’s obj ection, the trial was continued on the court’s own motion because anothe r case had run longer than expect ed. The trial was continued and rescheduled for January 11, 2008. On January 8, 2008, Plather filed a motion to dismiss due to a statutory speedy trial viol ation. The court denied the mo tion and then in a bench trial convicted Plather of the three charges. Prior to sentencing, Plather filed a motion to rehear the speedy trial issue and, during that hearing, Plather requested modifi cation of the July 9 order to correctly style it a “scheduling order,” not a “co ntinuance order.” The co urt refused to modify

2 The malicious wounding charge was not pres ented to the grand jury, and Plather was directly indicted for a ggravated malicious wounding.- 3 - the order and found that the July 9 “continuance” order tolled the running of the speedy trial clock from that date until October 31, th e date the matter was first set for trial.
ANALYSIS “Under Code § 19.2-243, ‘an incarcerated accuse d held continuously in custody shall be brought to trial within five months after a general district court finds probable cause to believe that the [accused] has committed a crime.’” Norton v. Commonwealth , 19 Va. App. 97, 99, 448 S.E.2d 892, 893 (1994) (quoting Shearer v. Commonwealth , 9 Va. App. 394, 399, 388 S.E.2d 828, 830 (1990)). “The five month requirement of Code § 19.2-243 tran slates to 152 and a fraction days.” Ballance v. Commonwealth , 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995). This “five-month period begins to run on the day afte r the preliminary hearing at which probable cause is found.” Robinson v. Commonwealth , 28 Va. App. 148, 152, 502 S.E.2d 704, 706 (1998). Where there is no prelimin ary hearing, the statute runs from the date of the indictment. Code § 19.2-243. Code § 19.2 243(4), however, states that the pr ovisions of the secti on do not apply if 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 ac cused or his counsel in such a motion by the attorney for the Co mmonwealth, or by the failure of the accused or his counsel to ma ke a timely objection to such a motion by the attorney for the Co mmonwealth, or by reason of his escaping from jail or failing to appear according to his recognizance. If the accused is not tried within this time period, “the burden is on the Commonwealth to explain the delay.” Godfrey v. Commonwealth , 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984). “[T]he 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 the context of the- 4 - record that comes before us.” Baity v. Commonwealth , 16 Va. App. 497, 503, 431 S.E.2d 891, 895 (1993) ( en banc ). Plather and the Commonwealth agree that the validity of Pl ather’s convictions turns on whether the time period between July 9, 2007 and October 31, 2007 should be charged to Plather in calculating the five-month time pe riod. If this time period is not chargeable to Plather, his trial was held beyond the five-month time period in violation of Code § 19.2-243. Relying upon Hudson v. Commonwealth , 267 Va. 36, 591 S.E.2d 679 (2004), and Commonwealth v. Hutchins , 260 Va. 293, 533 S.E.2d 622 (2000), the Commonwealth argues Plather’s agreement to the initial scheduling of a trial date constitutes a continuance within the intendment of Code § 19.2-243. In Hudson , a fourteen-year-old defendant was charged with two felonies in petitions initiated in the juvenile a nd domestic relations distri ct court (JDR court) on December 31, 2000. Hudson , 267 Va. at 38, 591 S.E.2d at 680. On February 1, 2001, the circuit court conducted a “docketing conference” for the pur pose of setting a trial date in anticipation that the defendant’s charges would be transferred from the JDR cour t to the circuit court and that the defendant would be indicted on the charges. The defendant’s a ttorneys agreed to a trial date of July 18, 2001. Id. at 39, 591 S.E.2d at 680. On Februa ry 12, 2001, the JDR court conducted a preliminary hearing and transferre d the case to the circuit court fo r the defendant’s trial as an adult. On March 5, 2001, a grand jury indicted the defendant for the two felony charges. Id. In finding there was no statutory speedy tr ial violation, the Court stated: [The defendant] also agreed to an original trial date beyond the five-month period fixed by C ode § 19.2-243. Because [the defendant’s] agreement to the trial date was confirmed by the circuit court before he was i ndicted, we do not charge [the defendant] with the time pending before his indictment, but remove from the five-month period only the time between his indictment in the circuit cour t on March 5, 2001, and his trial on July 18, 2001. Id. at 42, 591 S.E.2d at 682.- 5 - In Hutchins , the defendant appeared in the JD R court for a preliminary hearing on October 23, 1996 for two felonies , was indicted on February 10, 1997, and made his first appearance in circuit court on February 25, 1997. Hutchins , 260 Va. at 295, 533 S.E.2d at 623. At the February 25, 1997 hearing, the defendant was arraigned and entered not guilty pleas to the charges, requested a jury trial, and agreed to a June 6, 1997 trial date – a date which was beyond the five-month statutory speedy trial limitation. Id. The Court held no statutory speedy trial violation had occurred, finding that the time period between February 25, 1997 and June 6, 1997 was not included in calculating the five-m onth time period because, on February 25, 1997, the defendant acquiesced and agreed to a trial on June 6, 1997. Id. at 298, 533 S.E.2d at 625. This case differs from both Hudson and Hutchins because Plather’s in itial trial date was not set beyond the five-month statutory time period. When Plather first appeared before the trial court on July 9, 2007, the court stated that the purpose of the hearing was to “tell us who you’ve hired for an attorney.” After Pl ather stated that Scott J. Flax was his attorney and he wanted a jury trial, the trial cour t stated, “Let’s set a date then for a jury.” There is no suggestion in the record that the Commonwealth was prepared for trial on July 9, 2007 or that the court was prepared to conduct a trial on the charges. The c ourt then set a trial date within the five-month time period. The “time elapsing from the finding of probable cause to the initial trial date , even though the accused concurs in the trial date, is not a continuance within the contemplation of subsection (4) of the statute, but counts ag ainst the Commonwealth in a calculation of compliance.” Ballance , 21 Va. App. at 6, 461 S.E.2d at 403 (e mphasis added). According to the Commonwealth’s reasoning, Plather was required to obj ect to the setting of a trial date within the five-month period in order for that time not to toll the running of the statute. There would, however, be no basis for Plather to object to th e court setting the matter for trial within the five-month time period.- 6 - Plather also argues the trial co urt erred in denying his moti on to correct the July 9, 2007 “continuance” order to a ccurately reflect what occurred at the hearing. “A court speaks through its orders and those orders are presumed to accurately reflect what transpired.” McBride v. Commonwealth , 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). This presumption applies where an order conflicts with a transcript of th e subject proceedings.
See Stamper v. Commonwealth , 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979). Even so, “we are not restricted to the prec ise, technical wording of a court’ s order when other evidence in the record clearly establishes that the court had a different intent.” McBride , 24 Va. App. at 36, 480 S.E.2d at 129. “The burden is on the party a lleging an irregularity in a court proceeding to show affirmatively from the record that the irregularity exists.” Howerton v. Commonwealth , 36 Va. App. 205, 212, 548 S.E.2d 914, 917 (2001). In this case, Plather has rebutted the pres umption of correctness that the July 9, 2007 order was in fact a “continuance.” The July 9 he aring was held just seven days after Plather was indicted for the three felony charges. At the be ginning of the hearing, the court stated that the purpose of the hearing was for Plather to “tell us who you’ve hired for an attorney.” Plather informed the court that he had retain ed Scott J. Flax and that he want ed a jury trial. Scott J. Flax was not present at the hearing. The order entered after the July 9 hearing stated that Plather’s counsel was Jeffery Flax, that Je ffery Flax was present, and that the subject of the hearing was on Plather’s motion. The transcri pt and record show that the July 9, 2007 order had the wrong name for Plather’s counsel, that no defense counse l was present at the he aring, that Plather had not filed a motion, and that he made no oral mo tion at the hearing. Plather has affirmatively shown from the circumstances of the case and from the transcript of the hearing that the July 9, 2007 order was not a continuance of his trial, but it was a docketing he aring to set th e initial trial- 7 - date. Accordingly, the record shows that the July 9, 2007 order was not a continuance for trial purposes that tolled the running of the statutory speedy trial limitation. Based upon the foregoing, the time period between July 9, 2007 and October 31, 2007 was not chargeable to Plather. Thus, Plathe r’s trial was not held within the mandatory five-month period of Code § 19.2-243 and the trial c ourt erred in denying his motion to dismiss. Accordingly, Plather’s convictions for r obbery, stabbing in the commission of a felony, and aggravated maiming are reversed and the indictments are dismissed. Reversed and dismissed.