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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
COMMONWEALTH OF VIRGINIA
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
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.
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
Code ? 17.1-413, this opinion is not designated for publication.
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.