COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Elder 

Argued at Richmond, Virginia 

LOUIS JORDAN POWELL, JR. 

 OPINION BY 

v. Record No. 1051-98-2 JUDGE JAMES W. BENTON, JR. 

 MAY 25, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

Charles L. McCormick, III, Judge 

Glenn L. Berger (Curtis L. Thornhill; 

Berger & Thornhill, on brief), for appellant. 

Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 A grand jury indicted Louis Jordan Powell, Jr., for murder, 

use of a firearm in the commission of murder, and possession of a 

firearm after having been convicted of a felony. Prior to trial, 

Powell pled guilty to possessing a firearm after having been 

convicted of a felony. The Commonwealth did not consent to entry 

of a conditional plea. See Code § 19.2-254. A jury convicted 

Powell of the two remaining charges. On this appeal from the 

convictions of second degree murder and using a firearm in the 

commission of murder, Powell contends the trial judge erred in (1) 

denying his motion to dismiss because of a speedy trial violation, 

(2) denying his motion to suppress his statement to police because 

of a Miranda violation, (3) admitting into evidence unsigned notes 
of a deputy sheriff memoralizing Powell's statement, (4) refusing 

to instruct the jury that parole has been abolished in Virginia, 

(5) instructing the jury on the elements of second degree murder, 

and (6) instructing the jury on the burden to prove self-defense. 

For the reasons that follow, we hold that Powell was not tried 

within the time period specified in Code § 19.2-243, and we 

reverse both convictions and dismiss the indictments. 

I. 

 The record established that officers of the Halifax County 

Sheriff's Department arrested Louis Jordan Powell, Jr., on January 

26, 1996, on four warrants charging Powell with first degree 

murder of a juvenile, discharging a firearm within a building, 

using a firearm in the commission of murder, and possessing a 

firearm after having been convicted of a felony. On March 19, 

1996, a judge of the juvenile and domestic relations district 

court found probable cause to believe Powell committed the 

offenses and certified the matters to the grand jury. Powell was 

taken into custody March 19, 1996, and has remained continuously 

in custody. 

 In May 1996, the grand jury indicted Powell for murder, use 

of a firearm in the commission of murder, and possessing a firearm 

after having been convicted of a felony. The record indicates 

that the only order entered in the circuit court after the return 

of the indictments and before trial was an order relieving 

Powell's initial trial attorney from his representation and 

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substituting another attorney to represent Powell. On October 8, 

1996, Powell's attorney filed a motion pursuant to Code § 19.2-243 

"to discharge [Powell] from prosecution for failure to commence 

trial within five (5) months from the date probable cause was 

found." On October 9, immediately prior to the commencement of 

trial, the trial judge heard evidence on the motion and denied the 

motion. After considering other motions, the trial judge 

arraigned Powell. Powell pled guilty to the charge of possessing 

a firearm after having been convicted of a felony. He pled not 

guilty to murder and use of a firearm in the commission of murder. 

At the conclusion of the evidence, the jury convicted Powell of 

second degree murder and use of a firearm in the commission of 

murder. 

II. 

 As pertinent to this appeal, the statute governing the time 

limitation for the commencement of felony 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 

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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 

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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 

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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 

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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 

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commission of murder and dismiss the indictments. We need not 

address the remaining issues. 

 Reversed and dismissed. 

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