concurring in part and dissenting in part.
I would hold that the delay from September 14, 1998 to October 13, 1998, was not attributable to appellant and, therefore, that his speedy trial rights under Code § 19.2-243 were violated with respect to his conviction for second-degree murder of Willie Davis and the two convictions for using a firearm in the commission of murder. Because I would hold that the direct indictment for capital murder of Brock Lewis superseded the related indictment for first-degree murder, I concur in the majority’s conclusion that the conviction based on the capital murder indictment — second-degree murder of Brock Lewis — did not violate Code § 19.2-243. I join in Part III of the majority opinion, which affirms the admission of certain evidence. However, because I would hold that the two fire*240arm convictions violated the speedy trial statute, I would find it unnecessary to reach the sentencing issue addressed in Part IV. In sum, I would affirm the conviction for second-degree murder of Brock Lewis and reverse and dismiss the other three convictions.
The pertinent portions of Code § 19.2-243 provide as follows:
Where a general district court has found ... probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found....
If there was no preliminary hearing in the district court ..., the commencement of the running of the five ... month! ] period! ] ... shall be from the date an indictment or presentment is found against the accused.
If an indictment or presentment is found against the accused but he has not been arrested for the offense charged therein, the five ... month! ] period! ] ... shall commence to run from the date of his arrest thereon.
An exception is provided for such period of time as
the failure to try the accused was caused: ... !b]y continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such motion by the attorney for the Commonwealth____
Code § 19.2-243. Other than as set forth above, “[a] defendant does not waive his right to a speedy trial merely because he remains silent or does not demand that a trial date be set within the prescribed period.” Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984); see also Baker v. Commonwealth, 25 Va.App. 19, 25, 486 S.E.2d 111, 114 (holding that when trial court overruled defense counsel’s objection to continuance, defense counsel’s act of providing the court *241with available dates beyond the five-month speedy trial limitation did not constitute a waiver of defendant’s statutory right to a speedy trial), aff'd on reh’g en banc, 26 Va.App. 175, 493 S.E.2d 687 (1997).
Code § 19.2-241 requires that “[t]he judge of each circuit court shall fix a day of his court when the trial of criminal cases will commence” and that the accused “shall be tried within the time limits fixed in § 19.2-243.” “[Code § 19.2-241] is, in part, a legislative acknowledgement of the obvious imperative that the trial judge, rather than the prosecutor or the accused, controls the trial docket.” Baity v. Commonwealth, 16 Va.App. 497, 502, 431 S.E.2d 891, 894 (1993).
Although in setting its docket the trial court should consider counsel’s available dates and whether the date selected is convenient for counsel, absent defendant’s request for a continuance or concurrence in [or failure to object to] the Commonwealth’s request[,] or waiver of the right to a speedy trial, the trial judge has the responsibility to commence the trial within the statutorily specified time regardless of whether the date is convenient for counsel.
Baker, 25 Va.App. at 24, 486 S.E.2d at 113-14.
The Commonwealth has an affirmative duty to try the accused within the time periods specified in Code § 19.2-243. See Baker, 25 Va.App. at 23, 486 S.E.2d at 113. When an accused asserts that his statutory right to a speedy trial has been violated, the burden is on the Commonwealth to “prove that the delay was based on ‘one of the reasons enumerated in [Code § 19.2-243] or on appellant’s waiver, actual or implied, of his right to be tried within the designated period.’ ” Id. at 22, 486 S.E.2d at 113 (quoting Norton v. Commonwealth, 19 Va.App. 97, 99, 448 S.E.2d 892, 893 (1994)). ‘Without anything in a court order or elsewhere in the record to show that a defendant agreed to or concurred in [or failed to object to the Commonwealth’s request to] delay ... his trial, or instigated proceedings which of necessity brought about a delay of his trial, the delay must be attributed to the Commonwealth.” Cantwell v. Commonwealth, 2 Va.App. 606, 611, 347 S.E.2d *242523, 526 (1986) (emphasis added). “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.” Godfrey, 227 Va. at 464, 317 S.E.2d at 783.
When a directly indicted accused, whose case has not been set for trial, is brought before the trial court for the appointment of counsel and the case is continued to the next docket call without being set for trial, the period of time which follows is not tolled under Code § 19.2-243, and the statute continues to run. See Nelms v. Commonwealth, 11 Va.App. 639, 640, 400 S.E.2d 799, 800 (1991). The delay “is attributable to and benefits the accused”; but “because Code § 19.2-243 contemplates within its time limitations that some delay is necessary to prepare a case for trial and ... to fix a trial date in an orderly manner, that period of time permitted by the trial court for this purpose does not also extend this code section’s time limitations.” Baity, 16 Va.App. at 503, 505, 431 S.E.2d at 894, 896. Such a delay for the appointment of counsel is one “commonly experienced in the orderly administration of justice and necessarily included within or factored into the time limitations of [Code § 19.2-243].” Id. -This same reasoning applies to a delay occurring before a trial date is scheduled or contemplated when the delay is to permit an accused to retain his own counsel. See Baity, 16 Va.App. at 507, 431 S.E.2d at 897 (holding that fifteen-day continuance given to defendant to retain counsel shortly after his arrest and when no trial date had been set could not be attributed to him under Code § 19.2-243). In contrast, a defendant who requests the substitution of counsel on the day scheduled for trial due to the development of a conflict between lawyer and client may properly be charged with any delay necessitated by the granting of his request for substitution. See Ballance v. Commonwealth, 21 Va.App. 1, 6, 461 S.E.2d 401, 403 (1995). This latter sort of delay is not of the type “inherent in the orderly process of fixing a trial date” and is not “included within or *243factored into the time limitation of [Code § 19.2-243].” Baity, 16 Va.App. at 507, 431 S.E.2d at 897.
The majority concludes that the delay from September 14 to October 13, 1998, was attributable to appellant because the continuance was necessitated by the failure of appellant’s retained counsel to appear on that date. Appellant argues that he was indigent at that time and required the substitution of appointed counsel for his retained counsel. Under the reasoning of Nelms, he argues, a continuation of the case to the next docket call for the purpose of appointing counsel, prior to the time the case was set for trial, was a delay not attributable to him under the speedy trial statute.
Under the facts recited by the majority, I agree with appellant’s reasoning. As to the first-degree murder and firearms charges, I would hold that the delay the majority contends was necessitated by retained counsel’s alleged failure to appear was, if necessary at all, a delay “inherent in the orderly process of fixing a trial date,” Baity, 16 Va.App. at 507, 431 S.E.2d at 897, one “commonly experienced in the orderly administration of justice and ... factored into the time limitations of [Code § 19.2-243],” id. at 505, 431 S.E.2d at 896. The indictments against appellant had just been returned that day, and the trial court accepted representations that appellant was indigent and required the appointment of counsel. No trial date on those indictments had been set. As a result, I would hold, under the reasoning of Nelms, that any such delay was not attributable to appellant.
Furthermore, the record fails to indicate that the delay was, “of necessity,” caused by either (1) the need to appoint counsel for appellant following the return of the indictments or (2) retained counsel’s failure to appear at the September 14 docket call. Contrary to the majority’s statement, the record indicates that the trial court accepted the representations of someone at the September 14, 1998 docket call that appellant, who had been represented by retained counsel at his preliminary hearing on the two first-degree murder and related firearms charges, was indigent and required appointment of *244counsel. On that day, the court entered an order which referenced the four charges certified to the grand jury and returned as true bills on September 14, as well as the direct indictment for capital murder returned that same day. The order noted that appellant was “indigent and charged with a capital offense” and directed that appellant’s previously-retained attorneys were “appointed to represent the defendant herein,” referring to all five indictments listed in the caption of the order. The court issued no other order appointing counsel for the four non-capital offenses and entered no order of continuance for those cases. Also on September 14, the trial court issued a capias on the capital murder indictment, and appellant was brought before the court on the capital murder indictment on September 23. The court again appointed counsel for appellant for the capital murder charge and ordered that case alone continued to October 13, 1998, for selection of a trial date. That order referenced the capital murder charge and none of the other charges.
Therefore, although no evidence indicates that the non-capital charges were set for trial on September 14, the written record is silent as to why. At the hearing on the speedy trial motion, counsel and the court made representations and offered testimony as to who they believed was present and what had transpired on September 14. However, no transcript of the September 14 docket call is contained in the record, and the relevant orders are silent as to who was present at these proceedings and why the four indictments were not set for trial on that date.
The record contains no [contemporaneous] orders or docket entries explaining the reason for the delay ... or supporting the trial judge’s finding that the ... delay was attributable to [the accused]. No orders were entered granting continuances or showing why the case was not scheduled for trial.... The testimony of witnesses cannot stand in lieu of findings and rulings of the trial judge entered of record. To do so would diminish the sanctity of the court’s records. The record of proceedings in a court of record cannot be left to the vagaries of a swearing contest *245between witnesses. Such is an insufficient basis to establish why delay occurred which prevented a criminal defendant from receiving a speedy trial.
Powell v. Commonwealth, 29 Va.App. 745, 749-50, 514 S.E.2d 785, 787-88 (1999) (quoting Adkins v. Commonwealth, 13 Va.App. 519, 522, 414 S.E.2d 188, 189 (1992)). Under these circumstances, I would hold the Commonwealth failed to meet its burden of proving a delay which tolled the running of Code § 19.2-243. See id. at 750-51, 514 S.E.2d at 788 (holding Commonwealth failed to meet its burden where no order was entered setting initial trial date or continued trial date).
Even accepting representations made at the hearing on the motion to dismiss that counsel for appellant were not present at docket call on September 14, the court’s failure to set the cases for trial in the absence of defense counsel did not constitute, under Code § 19.2-243, (1) a request for a continuance by the accused, (2) a concurrence by the accused in a continuance motion made by the Commonwealth, or (3) a failure to object to a continuance requested by the Commonwealth. Nothing establishes that the Commonwealth made any such motion. The absence of defense counsel from docket call did not constitute such a motion made by the accused because that absence did not prevent the trial court from setting the four non-capital charges for trial. The trial court had the power and discretion to set a trial date in the absence of counsel, and the trial court bore the burden of ensuring that trial was commenced within the time required by the statute. See Code § 19.2-241; Baker, 25 Va.App. at 24, 486 S.E.2d at 113-14; Baity, 16 Va.App. at 502, 431 S.E.2d at 894. The trial court acknowledged its possession of this power on numerous occasions, noting as follows:
[W]hen defense counsel doesn’t show up [for docket call,] often we set the case.
[E]very time I accommodate [a] defendant I get into trouble so I’ll never do it again. I will set the case. Y’all didn’t show up for ... docket call[ ].
*246[A]ll cases will be set in the term in which a true bill is returned and we will see what the lawyers do about that. If they can’t make it they can’t make it. It’s not my problem. It will be their problem.
Therefore, contrary to the majority’s holding, the record fails to establish that the court was “unable to set a trial date” on September 14 or that a continuance until the next docket call on October 13 was a “necessity.” As a result, I would hold the Commonwealth failed to establish that appellant’s convictions for second-degree murder of Willie Davis and use of a firearm in the commission of the murders of Davis and Brock Lewis occurred within the requisite period of time following the probable cause determinations for these offenses, and I would reverse and dismiss these convictions.1
Because I would hold that the delay from September 14 to October 13, 1998, is not attributable to appellant, I also would find it necessary to consider appellant’s claim that his conviction under the capital murder indictment violated the speedy trial statute because the statute had already expired on the related murder charge, thus “forever discharging him] from prosecution for such offense.” Code § 19.2-243. I would hold that the capital murder indictment supplanted the related indictment for the first-degree murder of Brock Lewis such that the first-degree murder indictment lost all legal effect even before it was disposed of by nolle prosequi on February 25, 1999. Therefore, I concur in the majority’s affirmance of appellant’s conviction for the second-degree murder of Brock Lewis.
*247Our cases interpreting Code § 19.2-243 hold that the disposal of an indictment by nolle prosequi “ ‘is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered.’ ” Arnold v. Commonwealth, 18 Va.App. 218, 221, 443 S.E.2d 183, 185 (quoting Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977)), aff'd on reh’g en banc, 19 Va.App. 143, 450 S.E.2d 161 (1994). Thus, when an indictment is disposed of by nolle prosequi before the speedy trial statute has run and the accused subsequently is re-indicted on the same charge, the speedy trial statute begins to run anew from the time of the second indictment. See id.; see also Miller, 217 Va. at 934, 234 S.E.2d at 273; Presley v. Commonwealth, 2 Va.App. 348, 350-51, 344 S.E.2d 195, 196 (1986). “A new indictment is a new charge, distinct from the original charge or indictment.” Arnold, 18 Va.App. at 221, 443 S.E.2d at 185. ‘“When an original indictment is supplanted by a second indictment, the terms contemplated by [Code § 19.2-243] are to be counted from the time of the second indictment.’ ” Presley, 2 Va.App. at 350, 344 S.E.2d at 196 (quoting Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)).
Here, although the speedy trial statute would have expired on the indictment for first-degree murder of Brock Lewis before the Commonwealth requested the nolle prosequi, I would hold that the above-quoted principle espoused in Brooks nevertheless applies to the facts of this case. Brooks involved the arrest of the accused on a warrant followed by a preliminary hearing and the return of an indictment by the grand jury. Under the version of the statute then in effect, the speedy trial calculation began running from the time the “indictment [was] found [against the accused] and [he was] held in any court for trial, whether he be in custody or not.” 210 Va. at 321, 171 S.E.2d at 245-46 (quoting former Code § 19.1-191). Before the accused was arraigned or tried on the first indictment, the Commonwealth sought and obtained a new indictment, based on the same events as the first indictment but containing different wording to remedy a perceived *248defect in the offense charged in the first indictment.2 The Court held as follows:
The second indictment was returned before the expiration of [the speedy trial statute] from the date of the first indictment. The Commonwealth was not barred from obtaining another indictment which properly charged the offense of robbery. When an original indictment is supplanted by a second indictment, the terms contemplated by the statute are to be counted from the time of the second indictment.
Id. at 322, 171 S.E.2d at 246 (footnote omitted). Therefore, Brooks stands for the proposition that where a second prosecution is instituted before the speedy trial statute expires on the first prosecution, the statutory time period is to be counted from the time of the second prosecution. Compare id. with Clark v. Commonwealth, 4 Va.App. 3, 5-7, 353 S.E.2d 790, 791-92 (1987) (where original charges have been dismissed for speedy trial violation, subsequent indictment for offense based on same act or transaction, such as conspiracy to commit the originally charged offenses, also violates speedy trial statute). Although the speedy trial statute has been recodified and amended since the decision in Brooks, we have recognized that those amendments do not alter the principles set forth in Brooks. See Presley v. Commonwealth, 2 Va.App. 348, 351, 344 S.E.2d 195, 196 (1986); see also 1995 Va. Acts chs. 37, 352; 1993 Va. Acts ch. 425; 1988 Va. Acts ch. 33.
In appellant’s case, the speedy trial statute began to run on the original charge of the first-degree murder of Brock Lewis when the district court found probable cause at appellant’s preliminary hearing. As calculated from the preliminary hearing date of August 5, 1998, the speedy trial statute had not yet expired when the grand jury returned the new indictment on September 14,1998, charging appellant with the more *249serious offense of capital murder of Brock Lewis based on the same alleged events. Under the rationale of Brooks, the new indictment for capital murder “supplanted” the finding of probable cause made by the district court; appellant’s continued incarceration was based on the capital murder indictment rather than the indictment for the lesser offense of first-degree murder. Thus, the speedy trial statute began to run anew as of September 14, 1998, the date of issuance of the direct indictment for capital murder.3 As a result, appellant’s trial on the capital murder indictment, subsequently reduced to first-degree murder, occurred within the time required by Code § 19.2-243.4
*250In sum, I join in Part III of the majority’s opinion and in the majority’s affirmance of the conviction for second-degree murder of Brock Lewis. However, I would hold that the conviction for second-degree murder of Willie Davis and the two related firearms convictions violated the speedy trial statute and, therefore, should be reversed and dismissed. Accordingly, I dissent from the portions of the opinion affirming these convictions and would find it unnecessary to reach the sentencing issue addressed in Part IV.
. The majority concludes that "[appellant] is charged with sixty-one days delay with respect to the charges as to which a probable cause determination was made on August 5,” which includes twenty-nine days which elapsed between September 14 and October 13. Because the trial for these offenses occurred only fifty-two days late, the majority concludes the trial did not violate appellant’s speedy trial rights. However, by concluding that the twenty-nine-day period of September 14 to October 13 was not attributable to appellant, I would charge only thirty-two days of the delay to appellant. Under these calculations, his trial for these offenses was twenty days late.
. Although the Commonwealth had sought an indictment for robbery, the court held in the case of a codefendant whose indictment contained language similar to the accused’s that the language charged grand larceny rather than robbery. See Brooks, 210 Va. at 320, 171 S.E.2d at 245.
. To hold otherwise would be to elevate form over substance. A prosecutor could dispose of a still-timely indictment by nolle prosequi moments before obtaining a new, direct indictment for a similar offense, thereby starting the running of the speedy trial statute anew, whereas a prosecutor who effected the nolle prosequi of the original charge only after the second indictment or never effected the nolle prosequi would be required to count the speedy trial limit from the date of the original indictment or probable cause determination. Such a result would be anomalous.
. Although appellant contends the Commonwealth’s last minute nolle prosequi was an attempt to circumvent the speedy trial statute, the record contains no indication that the Commonwealth acted with "improper motives.” Presley, 2 Va.App. at 351, 344 S.E.2d at 196-97; see also Arnold, 18 Va.App. at 222, 443 S.E.2d at 185-86 (where Commonwealth sought nolle prosequi due to "difficulty in securing the attendance of its witnesses and in an effort to preserve a serious criminal charge[,] ... [t]he record suggests no oppressiveness or unfair trial tactic” and, therefore, does not violate the speedy trial statute). Although appellant’s conviction for second-degree murder based on the capital murder indictment may appear to have resulted in the circumvention of the speedy trial statute, nothing in the record indicates the Commonwealth acted with an improper motive when it sought the issuance of the capital murder indictment less than six weeks after the preliminary hearing on the related first-degree murder charge.
Further, a constitutional speedy trial claim, where properly preserved, remains available to prevent abuse by the Commonwealth. Cf. Johnson v. Commonwealth, 252 Va. 425, 429, 478 S.E.2d 539, 541 (1996) (constitutional provisions, not speedy trial statute, apply to assess length of delay preceding retrial following reversal on appeal); Holliday v. Commonwealth, 3 Va.App. 612, 615, 352 S.E.2d 362, 364 (1987) (constitutional provisions, not speedy trial statute, apply to *250assess length of delay which occurs prior to original preliminary hearing or indictment).