Moon, C.J., with whom Baker, J., Bray, J. and Fitzpatrick, J.,
join dissenting.
I respectfully dissent and would affirm the trial court because the record contains an order showing that, on appellant’s motion, the case was continued for fourteen days to allow him to obtain his own attorney. If that time is not charged against the Commonwealth, as it should not have been, the case was tried within the prescribed time. See Townes v. Commonwealth, 234 Va. 307, 322-23, 362 S.E.2d 650, 658-59 (1987), cert. denied, 485 U.S. 971 (1988).
Baity was indicted June 5, 1989. He was arrested on April 19, 1990, and released on bail. Thus, the Commonwealth had until January 19, 1991, to try him, unless some exception extended the time. On April 25,1990, Baity appeared before the circuit court, executed an affidavit of indigence, and filled out a form requesting that counsel be appointed for him. No order appointing counsel was entered. However, an order was entered on that date that stated, “On motion of the defendant, these cases are continued until May 10, 1990, at 9:30 a.m., to allow the defendant to obtain his own counsel.” On May 10, an order was entered that provided, “James M. Roe, Jr., having been retained as counsel in these cases, these cases are continued until the June term of court, 1990 to have a trial date set at that time.” The record does not show any previous order setting a trial date.
On June 21, 1990, an order was entered that provided, “upon the motion of the attorney for the Commonwealth, these cases are continued generally.” On December 5, 1990, an order was entered that provided, “the above styled cases have been set for trial on January 23, 1991, at 9:30 a.m.” On January 19, 1991, appellant moved for dismissal because he had not been tried within nine months following his [509]*509arrest. The trial judge denied his motion because the April 25, 1990 continuance order was entered upon the defendant’s motion and, thus, the nine month period was extended by fifteen days.
In Townes, probable cause was found by the general district court on August 23, 1985, and Townes was held in continuous custody. On October 16, 1985, Townes, then represented by court-appointed counsel, moved for a continuance, which was granted by order entered the same day, and the case was continued until December 4, 1985. On December 4, Townes and his court-appointed counsel appeared in court on a number of motions, and, for the first time, trial was set for March 3, 1986. Before the case was tried, Townes moved to dismiss, citing his failure to be tried within the time prescribed by Code § 19.2-243. Among the periods of time that Townes claimed should not have been counted against him was the one for the ‘ ‘continuance’ ’ granted on October 16, 1985. The Supreme Court noted:
Townes says we should ignore the continuance granted October 16, 1985, on his motion; he claims that when the October 16 motion was granted, no trial date had been set previously and, hence, no continuance cognizable under Code § 19.2-243 occurred.
Id. at 322, 362 S.E.2d at 658.
Then, the Supreme Court stated:
We disagree with Townes. We think he is chargeable with the period from October 16 to December 4, or one month and 18 days. This had the effect of extending the five-month speedy trial period.
234 Va. at 322-23, 362 S.E.2d at 658. The significant facts of the situation pertaining to Baity are indistinguishable from those in the Townes case. Therefore, our decision should be controlled by the Townes holding.
Defendant argues that because his case was not set for trial on April 25, 1990, the continuance from that date until May 10, 1990, even if granted upon his motion to allow him to obtain an attorney, did not result in a failure to try him. He relies upon Nelms v. Commonwealth, 11 Va. App. 639, 400 S.E.2d 799 (1991), wherein the Court held that an order of continuance stating that it was ‘ ‘with the consent and approval of the accused after prior consultation with his counsel” was not a continuance granted on motion of the accused and, furthermore, [510]*510that the continuance was not a cause for failure to try the accused within the statutory limit. Id. at 640, 400 S.E.2d at 800.
The defendant maintains that the decision in Townes, read in conjunction with Nelms, supports his position that he should be discharged from prosecution because no trial date was previously set when he moved for a continuance and because the delay caused by his motion did not result in a failure to try him. He contends that when the Supreme Court said, “We disagree with Townes,” it disagreed with Townes as to the allegation that no trial date had been set. Defendant contends that the Supreme Court was saying that a trial date had been set. However, the recitation of the facts in Townes does not show that a trial date had been set as of October 16, 1984, just as the record in this case does not show that a trial date had been set on April 25, 1990. The Supreme Court clearly disagreed with Townes’ legal argument.
In Nelms, the defendant was indicted on November 7, 1988, and on November 14, 1988, he was brought to court without counsel. The court determined that he was indigent and appointed counsel to defend him. The trial court then entered an order that stated, “with the consent and approval of the accused after private consultation . . . this case is continued to the next term of court.” 11 Va. App. at 640, 400 S.E.2d at 800.
At the hearing to dismiss Nelms’ case pursuant to Code § 19.2-243, defense counsel testified that he was not present on November 14, 1988, when counsel was appointed, and, therefore, the order incorrectly recited that he had conferred with counsel and had agreed to a continuance. Nelms also testified that his counsel was not present on November 14, 1988, and that he had not agreed to a continuance. The trial court accepted defense counsel’s statements as true. Before overruling defendant’s motion to dismiss, the trial judge, referring to a January 3, 1989, docket call, at which time the ultimate trial date was set, asked defense counsel three questions: (1) “Did you agree to set this case?” (2) “Why didn’t you set this case earlier if you take that position?” and (3) “You don’t think that is a duty to you . . . that you should set an earlier trial?” Id. at 641, 400 S.E.2d at 800. The trial court denied defendant’s motion to dismiss, finding that “it was with the consent of [defense] counsel that this case was set.” Id. at 640-41, 400 S.E.2d at 800.
[511]*511The panel in Nelms held that the trial court incorrectly concluded that the defense attorney’s failure to insist on a trial date within the statutory limits dispensed with the requirements of Code § 19.2-243. Id. This holding in Nelms was dispositive of the case. Any other statements in Nelms that are in conflict with the holding in Townes would be nonbinding dicta.2 Although Nelms was decided after Townes, the Nelms opinion made no reference to Townes. Nelms also does not discuss Godfrey v. Commonwealth, 227 Va.
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Moon, C.J., with whom Baker, J., Bray, J. and Fitzpatrick, J.,
join dissenting.
I respectfully dissent and would affirm the trial court because the record contains an order showing that, on appellant’s motion, the case was continued for fourteen days to allow him to obtain his own attorney. If that time is not charged against the Commonwealth, as it should not have been, the case was tried within the prescribed time. See Townes v. Commonwealth, 234 Va. 307, 322-23, 362 S.E.2d 650, 658-59 (1987), cert. denied, 485 U.S. 971 (1988).
Baity was indicted June 5, 1989. He was arrested on April 19, 1990, and released on bail. Thus, the Commonwealth had until January 19, 1991, to try him, unless some exception extended the time. On April 25,1990, Baity appeared before the circuit court, executed an affidavit of indigence, and filled out a form requesting that counsel be appointed for him. No order appointing counsel was entered. However, an order was entered on that date that stated, “On motion of the defendant, these cases are continued until May 10, 1990, at 9:30 a.m., to allow the defendant to obtain his own counsel.” On May 10, an order was entered that provided, “James M. Roe, Jr., having been retained as counsel in these cases, these cases are continued until the June term of court, 1990 to have a trial date set at that time.” The record does not show any previous order setting a trial date.
On June 21, 1990, an order was entered that provided, “upon the motion of the attorney for the Commonwealth, these cases are continued generally.” On December 5, 1990, an order was entered that provided, “the above styled cases have been set for trial on January 23, 1991, at 9:30 a.m.” On January 19, 1991, appellant moved for dismissal because he had not been tried within nine months following his [509]*509arrest. The trial judge denied his motion because the April 25, 1990 continuance order was entered upon the defendant’s motion and, thus, the nine month period was extended by fifteen days.
In Townes, probable cause was found by the general district court on August 23, 1985, and Townes was held in continuous custody. On October 16, 1985, Townes, then represented by court-appointed counsel, moved for a continuance, which was granted by order entered the same day, and the case was continued until December 4, 1985. On December 4, Townes and his court-appointed counsel appeared in court on a number of motions, and, for the first time, trial was set for March 3, 1986. Before the case was tried, Townes moved to dismiss, citing his failure to be tried within the time prescribed by Code § 19.2-243. Among the periods of time that Townes claimed should not have been counted against him was the one for the ‘ ‘continuance’ ’ granted on October 16, 1985. The Supreme Court noted:
Townes says we should ignore the continuance granted October 16, 1985, on his motion; he claims that when the October 16 motion was granted, no trial date had been set previously and, hence, no continuance cognizable under Code § 19.2-243 occurred.
Id. at 322, 362 S.E.2d at 658.
Then, the Supreme Court stated:
We disagree with Townes. We think he is chargeable with the period from October 16 to December 4, or one month and 18 days. This had the effect of extending the five-month speedy trial period.
234 Va. at 322-23, 362 S.E.2d at 658. The significant facts of the situation pertaining to Baity are indistinguishable from those in the Townes case. Therefore, our decision should be controlled by the Townes holding.
Defendant argues that because his case was not set for trial on April 25, 1990, the continuance from that date until May 10, 1990, even if granted upon his motion to allow him to obtain an attorney, did not result in a failure to try him. He relies upon Nelms v. Commonwealth, 11 Va. App. 639, 400 S.E.2d 799 (1991), wherein the Court held that an order of continuance stating that it was ‘ ‘with the consent and approval of the accused after prior consultation with his counsel” was not a continuance granted on motion of the accused and, furthermore, [510]*510that the continuance was not a cause for failure to try the accused within the statutory limit. Id. at 640, 400 S.E.2d at 800.
The defendant maintains that the decision in Townes, read in conjunction with Nelms, supports his position that he should be discharged from prosecution because no trial date was previously set when he moved for a continuance and because the delay caused by his motion did not result in a failure to try him. He contends that when the Supreme Court said, “We disagree with Townes,” it disagreed with Townes as to the allegation that no trial date had been set. Defendant contends that the Supreme Court was saying that a trial date had been set. However, the recitation of the facts in Townes does not show that a trial date had been set as of October 16, 1984, just as the record in this case does not show that a trial date had been set on April 25, 1990. The Supreme Court clearly disagreed with Townes’ legal argument.
In Nelms, the defendant was indicted on November 7, 1988, and on November 14, 1988, he was brought to court without counsel. The court determined that he was indigent and appointed counsel to defend him. The trial court then entered an order that stated, “with the consent and approval of the accused after private consultation . . . this case is continued to the next term of court.” 11 Va. App. at 640, 400 S.E.2d at 800.
At the hearing to dismiss Nelms’ case pursuant to Code § 19.2-243, defense counsel testified that he was not present on November 14, 1988, when counsel was appointed, and, therefore, the order incorrectly recited that he had conferred with counsel and had agreed to a continuance. Nelms also testified that his counsel was not present on November 14, 1988, and that he had not agreed to a continuance. The trial court accepted defense counsel’s statements as true. Before overruling defendant’s motion to dismiss, the trial judge, referring to a January 3, 1989, docket call, at which time the ultimate trial date was set, asked defense counsel three questions: (1) “Did you agree to set this case?” (2) “Why didn’t you set this case earlier if you take that position?” and (3) “You don’t think that is a duty to you . . . that you should set an earlier trial?” Id. at 641, 400 S.E.2d at 800. The trial court denied defendant’s motion to dismiss, finding that “it was with the consent of [defense] counsel that this case was set.” Id. at 640-41, 400 S.E.2d at 800.
[511]*511The panel in Nelms held that the trial court incorrectly concluded that the defense attorney’s failure to insist on a trial date within the statutory limits dispensed with the requirements of Code § 19.2-243. Id. This holding in Nelms was dispositive of the case. Any other statements in Nelms that are in conflict with the holding in Townes would be nonbinding dicta.2 Although Nelms was decided after Townes, the Nelms opinion made no reference to Townes. Nelms also does not discuss Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984), where the Supreme Court defined the procedure it would follow in reviewing Code § 19.2-243. It said:
The plain import of our long line of cases is that in assessing responsibility for delay in trying a defendant, we will confine our review to the record that comes before us. Representations of counsel, or even of the trial judge, if not supported by the record, are insufficient. Memories are too fragile to supply authoritatively what the record fails to reveal, especially where constitutional rights are at risk. Courts act by orders and decrees that become a part of the record on appeal. Continuances in criminal cases, therefore, must be documented to enable us to review and evaluate them when they are challenged.
Id. at 464, 317 S.E.2d at 783 (emphasis added) (footnote omitted). If this rationale is applied to the case before us, we should not look behind the order to determine which party is chargeable with the delay in this case between April 25 and May 10. The determination of what portion of the delay should be chargeable to whom can be made by mere reference to the trial court order.
An earlier case may have indicated a different approach. Stephens v. Commonwealth, 225 Va. 224, 301 S.E.2d 22 (1983), held that because the record demonstrated that the delay was actually caused by the defendant, the time was thus chargeable against defendant, notwithstanding the lack of an order showing the defendant moved for or concurred in a motion for a continuance. However, neither Godfrey nor Stephens supports the proposition that for a continuance to count against the [512]*512defendant, even if upon his motion, the Commonwealth must show that a trial date was sought or was actually delayed.
I believe that the Supreme Court in Godfrey gave clear instructions to courts concerning how to assign responsibility for a continuance when a defendant has not been tried within the time prescribed by Code § 19.2-243. Godfrey held that if a defendant made a motion for a continuance and it was granted by an order documenting that it was on defendant’s motion, the time should be charged to the defendant and the appellate court would not look beyond the order. In Townes, the trial court followed that procedure and the Supreme Court upheld the trial court. Similarly, I believe we should uphold the conviction in this case because under the holdings of Godfrey and Townes, the order of continuance on appellant’s motion requires that the time in question be charged against the appellant.
Accordingly, I would affirm the judgment.