Harris v. Commonwealth (1981)
In Harris v. Commonwealth, 222 Va. 205, 279 S.E.2d 395 (1981), the juvenile defendant was charged with rape and abduction.
Following the juvenile and domestic relations district court's denial of the Commonwealth's motion to transfer jurisdiction to the circuit court, the Commonwealth sought removal of the case to the circuit court under Code 16.1-269(E).
Pursuant to that statute, the papers in the case were forwarded to the circuit court for a decision regarding the certification of the juvenile.
The trial judge rendered a decision by letter thirteen days thereafter, on September 18, 1979, ruling that the defendant should be certified.
He instructed the Commonwealth's attorney to prepare an order.
No order was presented or entered within twenty-one days after receipt of the case in the trial court as required by Code 16.1-269(E).
At trial, on March 5, 1980, another trial judge discovered that no order certifying the juvenile defendant had been entered.
The judge declared a mistrial and remanded the case to the juvenile and domestic relations district court. Two days later the Commonwealth filed a motion for an order nunc pro tunc to memorialize the first trial judge's ruling granting a transfer of the case to the circuit court.
On March 13, 1980, the trial court entered two orders, one, entered nunc pro tunc to September 18, 1979, certifying the defendant for trial as an adult and the other setting aside the order of remand.
Harris argued on appeal that the trial court never acquired jurisdiction because the order authorizing certification was not entered within the mandatory twenty-one-day period.
He contended that a nunc pro tunc order was being used to show what the court should have done, rather than what was actually done.
The Supreme Court disagreed. It found that "appropriate judicial action was actually taken at the proper time" and held that the failure to enter a timely order was clerical error. Id. at 210, 279 S.E.2d at 398. As the Court noted:
The clerical mistakes which may be corrected under the court's inherent power encompass errors made by other officers of the court including attorneys. Here, the failure to enter a timely order was due to attorney error. . . . Manifestly, the nonentry of a timely order was caused by the prosecutor's failure to follow directions. Id. at 210, 279 S.E.2d at 398-99.