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KEENE v. COMMONWEALTH




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KEENE

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued at Richmond, Virginia

Record No. 2200-02-2

STEVEN GORDON KEENE

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III

OCTOBER 21, 2003

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Paul M. Peatross, Jr., Judge

Robert M. Galumbeck (Michael L. Dennis; Dudley, Galumbeck,

Necessary and Dennis, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

The trial court convicted Steven Gordon Keene of three counts of
making a false

statement on an application for an automobile certificate of
title, Code ? 46.2-605. He maintains

he was not tried within nine months of the finding of probable
cause, Code ? 19.2-243. We

affirm because the defendant failed to object to the continuance
of his trial.

On November 2, 2001, the Commonwealth filed a motion to continue
the trial. The judge

signed an order on December 18, 2001 memorializing what
transpired at the November 5, 2001

hearing on the motion. That order continued the case past the
nine-month deadline to March 13,

2002 at which time the trial court convicted the defendant and
set sentencing for July 19, 2002.

On July 12, 2002, new counsel filed a motion to dismiss due to a
speedy trial violation.

The trial judge ordered a transcript of the November 5, 2001
hearing and filed that transcript

with the record on July 17, 2002. On July 19, 2002, the trial
judge found the record established

that the defendant acquiesced to the continuance, denied his
motion to dismiss, and entered final

judgment.

The thrust of the defendant’s argument is that the writing
signed by the trial judge

December 18, 2001, which continued the case to March 13, 2002,
was not an order. He did not

recognize the document as an order because it did not contain
the word "order" in its heading,

defense counsel did not endorse it, and it did not reflect
whether the defendant objected or

acquiesced to the continuance.[2]

The purpose of an order "is to record what happened and
what the court did about it . . . ."

Cottrell v. Commonwealth, 187 Va. 351, 361, 46 S.E.2d 413, 418
(1948). The writing signed

December 18, 2001 reflects that both sides were present, that
the court considered a motion to

continue the trial, and that it continued the trial to March 13,
2002. It records no objection by the

defendant. That writing can only be understood to be an order of
the court; it needs no label to

make it so. A caption is not a necessary part of an order, Jones
v. Janes, 33 Va. (6 Leigh) 167,

173-74 (1835); nor is counsel’s endorsement necessary, Smith v.
Stanaway, 242 Va. 286, 289,

410 S.E.2d 610, 612 (1991). "The defendant’s failure to
object to the court’s action in fixing the

trial date is an acquiescence in the fixing of a trial date
beyond the [statutory time period] and

constitutes a continuance of the trial date under Code ?
19.2-243(4)." Heath v. Commonwealth,

261 Va. 389, 394, 541 S.E.2d 906, 909 (2001).

A court speaks only through its written orders, and we presume
its orders reflect

accurately what transpired. Stamper v. Commonwealth, 220 Va.
260, 280-81, 257 S.E.2d 808,

822 (1979). However, in this case, the trial court ordered the
transcript of the hearing of

November 5, 2001, and it is part of the record on appeal. That
transcript confirms that the order

did reflect accurately what transpired. Not only did the
defendant fail to object, he suggested the

date and acquiesced in its selection. "When a defendant
requests, agrees to, or acquiesces in an

order that effectively continues a case, the . . . speedy trial
period of Code ? 19.2-243 is tolled

during the time reasonably specified by the court to carry out
the terms of its order." Heath, 261

Va. at 393, 541 S.E.2d at 908.

The defendant also argues that if the document was an order, it
was improperly entered

nunc pro tunc. The order was entered December 18, 2001. It
was not entered nunc pro tunc,

and did not become so simply because the judge signed it after
the date of the proceedings it

recorded. Orders record what happened and must be signed after
the event they record.

The defendant never objected to the continuances of his trial.
Accordingly, we affirm his

convictions.

Affirmed.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]On brief, the
defendant also maintains that the December 18, 2001 document could only

extend trial to the end of the December 2001 term, which ended
February 2, 2002. We will not

consider an argument on appeal not raised in the trial court.
Rule 5A:18.


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