COURT OF APPEAL S OF VIRGINIA

Present: Judg es Benton, Cole man and Elder Argued at Rich mond, Virginia

LOUIS JORDAN POWELL, JR. OPINION BY v. Record No. 1051-98-2 JU DGE JAMES W. BENTON, JR. MAY 25, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HALIFAX COUNTY Charles L. McCorm ick, III, Judge Glenn L. Berger (Cur tis L. Thornhill; Berger & Thornhill, on brief), for appellant. Daniel J. Munr oe, Assistant At torney General (Mark L. Earley, Attorney General, on brief), for appellee.

A grand jury indict ed Louis Jordan Powe ll, Jr., for murder, use of a firearm in th e commission of murder, and po ssession of a firearm after havi ng been convicte d of a felony. Prior to trial, Powell pled guilty to possessing a firear m after having been convicted of a felony. The Commonweal th did not cons ent to entry of a conditio nal plea. See Code § 19.2-254. A jury convicted Powell of the tw o remaining charge s. On this appeal from the convictions of second degree murder and us ing a firearm in the commission of mu rder, Powell cont ends the trial ju dge erred in (1) denying his motion to dismiss beca use of a speedy trial violation, (2) denying his mo tion to suppress his stat ement to poli ce because of a Miranda violation, (3) admitting in to evidence unsigned notesof a deputy sheriff memoralizing Powell's st atement, (4) refusing to instruct the jury that parole has been abolished in Virginia, (5) instructing th e jury on the el ements of second degree murder, and (6) instructin g the jury on th e burden to prov e self-defense. For the reasons th at follow, we hold that Powell was not tried within the time period specified in Code § 19.2-243, and we reverse both convictions an d dismiss the indictments.

I. The record establis hed that officers of the Halifax County Sheriff's Depart ment arrested Loui s Jordan Powell, Jr., on January 26, 1996, on four warr ants charging Powell with first degree murder of a juve nile, dischargin g a firearm with in a building, using a firearm in the commission of murder, an d possessing a firearm after havi ng been convicte d of a felony. On March 19, 1996, a judge of the juvenile and domestic relations district court found prob able cause to believe Powell committed the offenses and certified the matters to the gran d jury. Powell was taken into custody Marc h 19, 1996, and has re mained continuously in custody. In May 1996, the gr and jury indicted Po well for murder, use of a firearm in the co mmission of mu rder, and posses sing a firearm after having been convicted of a felony. The record indicates that the only order en tered in the circuit co urt after th e return of the indictments an d before trial was an order relieving Powell's initial tria l attorney from his representation and

- 2 -substituting another at torney to repr esent Powell. On October 8, 1996, Powell's attorney filed a motion pursuant to Code § 19.2-243 "to discharge [Pow ell] from prosec ution for failur e to commence trial within five (5) months from the da te probable cause was found." On Octo ber 9, immediatel y prior to the co mmencement of trial, the trial judge heard evidence on the motion and denied the motion. After cons idering other motions, the trial judge arraigned Powell . Powell pled guilty to the charge of possessing a firearm after ha ving been convic ted of a felony. He pled not guilty to murder and us e of a firearm in the co mmission of murder. At the conclusion of the evidence, th e jury convicte d Powell of second degree murder and use of a firearm in the commis sion of murder.

II. As pertinent to th is appeal, the statut e governing the time limitation for the comm encement of fe lony trials provides as follows: 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 court within five months from the date such probable cause was found by the district court. Code § 19.2-243. "If [the accused] is not tried within the time specified in Code § 19.2-243, the burden is on the Commonwealth

- 3 -to explain the delay." Godfrey v. Commonwealth , 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984). To avoid the statutory remedy of discharge from prosecution, "[t]he Commonwealth must prove that the delay was based on 'one of the reasons enumerated in [Code § 19.2-243] or on [the accused's] waiver, actual or implied, of his right to be tried within the designated period.'" Baker v. Commonwealth , 25 Va. App. 19, 22, 486 S.E.2d 111, 113, aff'd on reh'g en banc , 26 Va. App. 175, 493 S.E.2d 687 (1997). Powell's trial was not commenced within five months from the date the judge of the juvenile court found probable cause. Following an evidentiary hearing, the trial judge found "that there was a continuance [and] that it was on the motion of [Powell]." See Code § 19.2-243 (exempting "such period of time as the failure to try the accused was caused . . . [b]y continuance granted on the motion of the accused or his counsel"). The record, however, does not support the trial judge's findings. At the evidentiary hearing, Tina Englebright, an employee of the Commonwealth's Attorney's office who is not an attorney, testified that she had been given the responsibility of "setting the circuit court docket." In this capacity, she received a list of available trial dates from the circuit court judge and then contacted the attorneys involved in the cases to coordinate their available trial dates. Englebright prepared a spread

- 4 -sheet with the defendant's name, charge, attorney and a speedy trial date, and she noted on the spread sheet the agreed upon or convenient trial date. After Englebright completed the spread sheet, she delivered it to the clerk's office. Englebright testified that the clerk prepared the trial docket from Englebright's spread sheet. Englebright testified that this procedure was followed for Powell's case. Her spread sheet indicated that Powell was to be tried by a jury. Over objection, she further testified that Powell's initial attorney had asked for a continuance because of "extreme docket problems in setting his cases." She also testified that the circuit judge did not enter either an order setting the case for trial or an order for a continuance. Powell's initial attorney testified that he could not recall requesting a continuance of the case. He also testified that the circuit judge generally enters orders when continuances are granted. The Clerk of the Circuit Court identified Englebright's spread sheet as the document from which the clerk's office prepared its trial docket. The Clerk testified that the spread sheet was "used in support of the creation of the docket." The Clerk also testified the spread sheet is not put in an order book and is not stamped or dated as received. The record contains no order or docket entry by the judge setting a trial date. We have had other occasions to address

- 5 -the absence of an order setting a criminal trial. We ruled as follows: The record contains no orders or docket entries explaining the reason for the delay in beginning the trial or supporting the trial judge's finding that the . . . delay was attributable to [the accused]. No orders were entered granting continuances or showing why the case was not scheduled for trial within five months. . . . The testimony of witnesses cannot stand in lieu of findings and rulings of the trial judge entered of record. To do so would diminish the sanctity of the court's records. The record of proceedings in a court of record cannot be left to the vagaries of a swearing contest between witnesses. Such is an insufficient basis to establish why delay occurred which prevented a criminal defendant from receiving a speedy trial. Adkins v. Commonwealth , 13 Va. App. 519, 522, 414 S.E.2d 188, 189 (1992) (citation omitted). See also Nelms v. Commonwealth , 11 Va. App. 639, 642, 400 S.E.2d 799, 801 (1991) (noting that "[s]ince the matter had not been set for trial, neither the accused nor the attorney for the Commonwealth had any reason to move for a continuance"). In an earlier case, we noted the following: In determining responsibility for the delay of a criminal trial, we must confine our review to the record before us. Because of the fragility of memories "[r]epresentations of counsel, or even of the trial judge, if not supported by the record, are insufficient." A trial court's actions are reflected in the record only through its orders and decrees. Consequently, a trial date scheduled by the court in a criminal case must be documented before we may consider it in evaluating trial delay, and

- 6 -no trial date was scheduled by the court in this case.

* * * * * * * Only the trial court, not the Commonwealth's Attorney, has authority to schedule criminal cases for trial. Code § 19.2-241 provides that "[t]he judge of each circuit court shall fix a day of his court when the trial of criminal cases will commence, and may make such general or special order in reference thereto. . . ." This provision contemplates an orderly procedure for setting criminal cases and expressly places the control of that process under the supervision of the trial court, not a party litigant. The policy expressed in this provision recognizes the role of the trial judge in insuring the prompt disposition of criminal cases. Williams v. Commonwealth , 2 Va. App. 566, 569, 347 S.E.2d 146, 148 (1986) (citations omitted). Not only was no order entered setting an initial trial date for Powell's jury trial, the record in this case clearly establishes that no order was entered setting a continued trial date. On this record, the Commonwealth has not borne its burden of proving a delay countenanced by Code § 19.2-243. Because Powell was in custody and was not brought to trial within five months of the finding of probable cause, as statutorily mandated, the trial judge erred in failing to grant Powell's motion to dismiss the indictments. We, therefore, reverse the convictions for second degree murder and use of a firearm in the

- 7 -commission of murder and dismiss the indictments. We need not address the remaining issues. Reversed and dismissed

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