Larry Furches Blevins, Sr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 30, 1997
• Docket: 1264963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Coleman Argued at Richmond, Virginia

LARRY FURCHES BLEVINS, SR. MEMORANDUM OPINION * BY v. Record No. 1264-96-3 CHIEF JUDGE NORMAN K. MOON SEPTEMBER 30, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY Keary R. Williams, Judge Michael Morchower; David L. Scyphers (Anthony G. Spencer; Morchower, Luxton & Whaley; Johnson, Scyphers & Austin, on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Larry Furches Blevins, Sr. appeals his jury trial conviction

of forcible sodomy in violation of Code § 18.2-67.1. Blevins

asserts that (1) the trial court improperly rejected his speedy

trial claim; (2) the evidence was insufficient as a matter of law

to prove intimidation so as to justify a conviction of forcible

sodomy; and (3) the evidence was insufficient to show the intent

necessary to sustain a conviction of forcible sodomy. We agree

that he was denied a speedy trial, and therefore, we reverse and

dismiss.

Blevins was charged with forcible sodomy. At the

preliminary hearing on March 2, 1995, the juvenile court judge

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. found probable cause to certify the charge to the grand jury.

The grand jury indicted Blevins on May 9, 1995. Blevins was not

held continuously in jail on the charge from the date of the

probable cause hearing until trial. At docket call on July 12,

1995, in the absence of the Commonwealth's attorney and Blevins'

attorney, the court set the case for trial on October 26, 1995.

That date was not convenient for Blevins, so his counsel

contacted the Commonwealth's attorney to discuss a continuance.

The Commonwealth's attorney prepared an order memorializing the

continuance and sent that order to Blevins' attorney, who

endorsed it, "Requested," and returned it to the Commonwealth's

attorney. However, the order was never presented to the court

for entry, and neither party made a motion to continue the case. The trial court nevertheless found that Blevins requested a

continuance and issued an order nunc pro tunc to that effect on

March 21, 1996, more than twelve months after the juvenile

court's finding of probable cause. Blevins' counsel objected to

the court's issuance of the order nunc pro tunc. The court

denied Blevins' motion to dismiss, and he was tried and

convicted.

SPEEDY TRIAL AND ORDERS NUNC PRO TUNC

Code § 19.2-243 provides, in pertinent part: Where a general district court has found that there is probable cause to believe that the accused has committed a felony, . . . if the accused is not held in custody but has been recognized for his appearance in the circuit court to answer for such offense, he shall be forever discharged from prosecution therefor if no trial is commenced within nine months

- 2 - from the date such probable cause was found.

The Code further provides that the period of limitation shall be

tolled for any period of time that the failure to try the accused

was attributable to any of five enumerated causes, including [a] continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such motion by the attorney for the Commonwealth, or by 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).

This appeal is controlled by Heflin v. Commonwealth, 211 Va.

407, 177 S.E.2d 644 (1970), in which the Supreme Court of

Virginia held that although the trial court, after hearing

evidence, found that the case had been continued by agreement,

because no court entry upon the record reflected such a

continuance, the finding could not be accepted. Trial courts may

enter orders nunc pro tunc only to correct defects or omissions

in the record so as to make the record show what actually took

place on a prior occasion. Code §§ 8.01-428(B) and 8.01-677, see Davis v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996).

Because the trial court never considered a motion for a

continuance and never ordered a continuance, there was no defect

or omission in the record. Therefore, the trial court lacked

authority to issue an order nunc pro tunc reciting that a

continuance had been granted when in fact the court had not

granted a motion for a continuance on the motion of or with the

concurrence of the defendant. The nunc pro tunc order is thus - 3 - invalid and cannot bar Blevins' speedy trial claim. Because we

find that Blevins was not tried within the time prescribed by

Code § 19.2-243, we must reverse the conviction and dismiss the

charge. We need not address Blevins' other questions.

Reversed and dismissed.

- 4 -