Moore v. Commonwealth

Present: Carrico, C.J., Compton, 1 Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ.

DAVID ALLEN MOORE

OPINION BY
v. Record No. 990665 JUSTICE LAWRENCE L. KOONTZ, JR.
March 3, 2000

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The primary focus of this appeal is a determination of the scope

of our recent decision in Commonwealth v. Baker, 258 Va. 1, 516

S.E.2d 219 (1999)(per curiam), aff’g Baker v. Commonwealth, 28 Va.

App. 306, 504 S.E.2d 394 (1998). 2 As in that case, the question is

whether the trial court, here the Circuit Court of Loudoun County

(the circuit court), lacked jurisdiction to try David Allen Moore, a

juvenile, as an adult on indictments charging him with two counts of

murder and the use of a firearm in the commission of those murders.

Specifically, the question is whether the failure of the Loudoun

1
Justice Compton participated in the hearing and decision of this

case prior to the effective date of his retirement on February 2,

2000.

2
Within this opinion, we will refer to the decision of the Court

of Appeals as “Baker I” and our per curiam affirmance of that

decision as “Baker II.”
County Juvenile and Domestic Relations District Court (the juvenile

court) to give notice of the initiation of juvenile court proceedings

against Moore, required by the then applicable provisions of Code

§§ 16.1-263 and 16.1-264, to his biological father rendered the

subsequent transfer of jurisdiction by the juvenile court to the

circuit court ineffectual and, thus, the convictions of Moore void.

The pertinent facts are not in dispute. Moore was born on May

13, 1977. In December 1994, four petitions were filed in the

juvenile court charging that Moore committed the above noted criminal

offenses in January 1994. On each petition in the space provided on

the pre-printed form for the name and address of the juvenile’s

mother, “Lillie Ruth Moore — Arlington County Jail” was listed. A

similar space regarding the juvenile’s father was left blank. The

juvenile court judge made no certification on the record that the

identity of Moore’s father was not reasonably ascertainable and no

affidavit to that effect was made by Moore’s mother. However, in a

social history report later filed in the juvenile court by a

probation counselor of that court, Moore’s father was identified as

“Vernon Butts” and his location was identified as “Tampa, Florida

(exact address unknown).” Moore’s mother was never married to Butts. 3

3
The social history report also recited that Moore’s mother

“dated” Moore’s father for three months and that she terminated

2
Moore and his mother were summoned to appear in the juvenile court

regarding the allegations in the petitions. Moore’s father was not

summoned and did not voluntarily appear.

Throughout the juvenile court proceedings Moore was held in

custody and was represented by two court-appointed attorneys.

According to court records, Moore’s mother did not appear at any of

the hearings in the juvenile court. Ultimately, following a transfer

hearing at which Moore and his attorneys were present, the juvenile

court by order entered on June 14, 1995, found probable cause that

Moore had committed the criminal offenses charged in the petitions

and certified Moore to stand trial as an adult in the circuit court

for those offenses.

Moore was indicted for those offenses on July 28, 1995, found

guilty of each by a jury on February 6, 1997, and sentenced to a term

of imprisonment of two life sentences and eight years on December 19,

1997. Throughout the proceedings, both in the juvenile court and the

the relationship because he denied that he was the father of her

expected child after she became pregnant. The record also

reflects that on May 10, 1996, Moore’s counsel made an oral

motion in the circuit court that Moore be permitted to attend

the funeral of his father, “Vernon Butts,” scheduled for the

next day.

3
circuit court, Moore raised no objection to the failure of the

juvenile court to give notice of the initiation of the juvenile court

proceedings to his father as required by the then applicable

provisions of Code §§ 16.1-263 and 16.1-264.

On appeal to the Court of Appeals, Moore challenged his

convictions on other grounds, but did not raise the issue of the

failure to give notice to his father. The Court of Appeals affirmed

Moore’s convictions in an unpublished opinion. Moore v.

Commonwealth, Record No. 0063-98-4 (February 23, 1999). We awarded

Moore this appeal limited to the issue of the effect upon Moore’s

convictions of the failure to give notice to his father.

We begin our analysis in this appeal by noting the significant

similarities and distinctions between the facts and circumstances

involved in Moore’s case and those in Baker’s case. In both cases

the criminal acts were committed and the proceedings against the

juveniles in the appropriate juvenile courts occurred when Code

§§ 16.1-263 and 16.1-264 required notice of the initiation of

juvenile court proceedings to the “parents” of the juvenile. In

neither case were there certifications on the record by the juvenile

court judge that the identity of one of the juvenile’s parents was

not reasonably ascertainable as provided in the exception to required

parental notice under Code § 16.1-263(E). In both cases the

juveniles’ biological fathers were not given notice of the initiation

of the juvenile court proceedings, or the subsequent transfer

4
hearings, and they did not voluntarily appear at any of the hearings

conducted in the juvenile court.

Under these circumstances, the Court of Appeals held in Baker I

that the then applicable provisions of Code §§ 16.1-263 and 16.1-264

required notice of the initiation of juvenile court proceedings to

both parents. 4 Moreover, the Court of Appeals held that “[b]ecause

the notice of the initiation of juvenile proceedings was not properly

served on [Baker’s biological father], the transfer of jurisdiction

[to the circuit court] was ineffectual and the subsequent convictions

[of the juvenile in the circuit court] are void.” Baker I, 28 Va.

App. at 315, 504 S.E.2d at 399. In reaching this judgment, the Court

of Appeals held that the provisions of these statutes are “mandatory”

and “jurisdictional.” Id. at 310, 504 S.E.2d at 396.

Thereafter, for the reasons stated in the opinion of the Court

of Appeals, we affirmed that Court’s judgment voiding Baker’s

4
At the time Baker was transferred to the circuit court in 1996,

Code § 16.1-269.1 was the applicable transfer statute. When Moore

was transferred to the circuit court former Code § 16.1-269 was

applied by the juvenile court because the offenses for which Moore

was charged were committed prior to the repeal of Code § 16.1-269 in

1994.

5
convictions. 5 Baker II, 258 Va. at 2, 516 S.E.2d at 220. It is then

readily apparent that in the absence of any significant distinction

between the two cases, our decision in Baker II would control in

Moore’s case without further analysis.

However, there are significant distinctions between the facts

and circumstances in Baker II and those in Moore’s case. In Baker I,

the Court of Appeals noted that “[p]rior to the indictment, Baker

filed a motion to dismiss the charges or remand the case to juvenile

court and alleged that the juvenile court lacked jurisdiction to

transfer the case to the circuit court because the juvenile court

failed to comply with the notice requirements of Code §§ 16.1-263 and

16.1-264.” 28 Va. App. at 309, 504 S.E.2d at 396. Thus, Baker

preserved the issue of this defect in the juvenile court proceedings

and was not subject to the waiver of objection to the “jurisdiction”

of the circuit court provided for in Code § 16.1-269.6(E), a statute

we will address subsequently in this opinion. In contrast, as noted

above, Moore raised no such objection to the defect in the juvenile

court proceedings either in the juvenile court, the circuit court, or

5
We also noted that effective July 1, 1999, Code § 16.1-263 was

amended to provide for notice of the juvenile court proceedings to

“‘at least one parent.’” Id.

6
the Court of Appeals. Accordingly, it is in this context that the

scope of our decision in Baker II must be viewed. More specifically,

we must now decide, applying the applicable versions of the pertinent

statutes, whether the failure to give the statutory notice of the

initiation of juvenile court proceedings to a juvenile’s parent is a

defect in the proceedings such that it is not subject to waiver by

the juvenile either in the juvenile court or the circuit court.

We continue our analysis by emphasizing the necessary

distinction to be drawn here between the power of a court to

adjudicate a specified class of cases, commonly known as “subject

matter jurisdiction,” and the authority of a court to exercise that

power in a particular case. Subject matter jurisdiction is granted

by constitution or statute. Humphreys v. Commonwealth, 186 Va. 765,

772, 43 S.E.2d 890, 894 (1947). It cannot be waived and any judgment

rendered without it is void ab initio. Moreover, lack of subject

matter jurisdiction “may be raised at any time, in any manner, before

any court, or by the court itself.” Id., 43 S.E.2d at 893. In

contrast, “[a] court’s authority to exercise its subject matter

jurisdiction over a case may be restricted by a failure to comply

with statutory requirements that are mandatory in nature and, thus,

are prerequisite to a court’s lawful exercise of that jurisdiction.”

Moore v. Commonwealth, 259 Va. ___, ___, ___ S.E.2d ___, ___ (2000)

(decided today) (holding that the failure to give statutorily

required notice of initiation of juvenile court proceeding to

7
juvenile’s parent is a defect in those proceedings cured by Code

§ 16.1-269.1(E)). 6

The statute that provides subject matter jurisdiction to the

juvenile and domestic relations district courts is Code § 16.1-241,

which gives these courts “exclusive original jurisdiction” over “all

cases, matters and proceedings involving” a juvenile who is alleged

to be delinquent. 7 The jurisdiction of these courts is invoked and

the proceedings therein commenced by the filing of a petition. Code

§ 16.1-260(A). After the petition is filed, Code §§ 16.1-263 and

16.1-264 mandate parental notice of the initiation of the proceedings

6
The defendant in Moore is not the same defendant in the

present case.

7
This code section has been amended from time to time and was

amended in 1996 specifically to limit the jurisdiction of the

juvenile courts to conducting a preliminary hearing to determine

probable cause in any case in which the juvenile, age 14 or older, is

alleged to have committed certain violent juvenile felonies,

including those charged against Moore in the present case. This

limiting provision, however, was not applicable at the time of the

proceedings in the juvenile court against Moore.

8
by the issuance of a summons. The subsequent transfer of such a case

by the juvenile court to the circuit court is provided for under Code

§ 16.1-269.1. Former Code § 16.1-269, applied by the juvenile court

in Moore’s case, also provided for this transfer to the circuit

court. While there are considerable distinctions between the

statutes, when viewed in the limited context that they both provide

the statutory means by which a circuit court acquires the authority

to exercise its subject matter jurisdiction over a class of offenses

committed by a juvenile that would otherwise fall within the

exclusive original subject matter jurisdiction of the juvenile court,

we need not address all those distinctions here. The significant and

pertinent distinction, however, is the applicability of Code § 16.1-

269.1(E), another statute we also will subsequently address in this

opinion.

There is no question that when the statutory requirements

related to the juvenile court proceedings are followed, a circuit

court’s subject matter jurisdiction over the class of offenses

committed by a juvenile that are at issue here is invoked. See Code

§§ 17.1-513 and 19.2-239. It is the unique statutory framework

whereby a juvenile court and in turn a circuit court acquire the

authority to exercise their subject matter jurisdiction that is at

issue here and was at issue in a number of our prior cases. In this

regard, we have held that the statutory requirement of parental

notice of the initiation of proceedings in the juvenile court, under

9
various former versions of what is now Code § 16.1-263, are mandatory

in nature and limit a court’s rightful exercise of its subject matter

jurisdiction. See, e.g., Gregory v. Peyton, 208 Va. 157, 159-60, 156

S.E.2d 624, 626 (1967); Peyton v. French, 207 Va. 73, 80, 147 S.E.2d

739, 743 (1966).

In French, where the juvenile court failed to give parental

notice of the initiation of the proceedings in that court, we stated

that “the failure of the juvenile court to comply with the applicable

statutes rendered the circuit court proceedings void.” Id. at 80,

147 S.E.2d at 743 (emphasis added). Moreover, and pertinent to the

present appeal, in Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775

(1972), we recognized that there had been various amendments to the

notice requirements concerning juvenile court proceedings, but we

stressed that “the requirement that the parents of an infant

defendant charged with a crime have notification of the time and

place of his trial and an opportunity to be present has remained

constant.” Id. at 428, 192 S.E.2d at 777. In contrast to these

cases, we have distinguished specific statutory requirements and held

that certain defects in the juvenile court proceedings were merely

procedural and, thus, were subject to cure or waiver. See, e.g.,

Turner v. Commonwealth, 216 Va. 666, 670, 222 S.E.2d 517, 520

(1976)(failure to provide written notice to parents cured by actual

presence of juvenile’s parents at transfer hearing).

10
 Guided by these principles, we turn to the specific

circumstances in Moore’s case. The notice provisions contained in

the applicable version of Code § 16.1-263 require that “[a]fter a

petition has been filed, the court shall direct the issuance of

summonses . . . to the parents . . . .” This requirement, although

no longer containing earlier language prohibiting the hearing to

proceed without the notice, is otherwise virtually identical to that

considered by this Court from the time we decided French to the time

we decided Baker II. Based on this Court’s unswerving adherence to

the nature of this notice requirement to parents, this requirement as

applied to Moore’s case was “mandatory.” Thus, because it failed to

comply with this mandatory requirement, the juvenile court lacked

authority to exercise its subject matter jurisdiction over the

offenses charged against Moore. 8 It then remains only to be

8
In addition, we note that Code § 16.1-269.1(E) provides

that “[a]n indictment in the circuit court cures any error or

defect in any proceeding held in the juvenile court except with

respect to the juvenile’s age.” This provision, however,

applies only to offenses committed on or after July 1, 1996, and

therefore does not apply to Moore’s case. See 1996 Va. Acts.

ch. 755, cl. 7 and ch. 914, cl.7.

11
determined whether Code § 16.1-269.6(E) is applicable in the present

case and operates to waive or cure this defect in the juvenile court

proceedings such that the circuit court had the necessary authority

to exercise its subject matter jurisdiction to try Moore as an adult

for the offenses set forth in the indictments because Moore raised no

objection to the jurisdiction of the circuit court.

Code § 16.1-269.6(E) became effective on July 1, 1994. As

previously noted the offenses for which Moore was charged occurred in

January 1994 and the petitions charging him with these offenses were

filed in the juvenile court in December 1994. He was subsequently

indicted in the circuit court for these offenses on July 28, 1995,

and arraigned in December 1996. Accordingly, we will assume, without

deciding, that Code § 16.1-269.6(E) is applicable to Moore’s case.

Code § 16.1-269.6(E) provides that: “Any objection to the

jurisdiction of the circuit court pursuant to this article shall be

waived if not made before arraignment.” (Emphasis added.) The plain

language of this section clearly manifests legislative intent that

This provision was also not applicable in Baker II because

the offenses at issue there were committed before July 1, 1996.

However, the provision now acts to cure the defect in the

juvenile court proceedings at issue in Moore’s case. See Moore,

259 Va. at ___, ___ S.E.2d at ___.

12
any defect in the transfer proceedings conducted in the juvenile

court as provided in Article 7 is waived such that the circuit court

acquires the authority to exercise its subject matter jurisdiction

over the offenses charged against the juvenile unless the juvenile

raises an objection based on a defect in the juvenile court transfer

hearing prior to arraignment in the circuit court. Beyond question,

the legislature has the authority to provide for a waiver of a defect

in the transfer proceeding in this manner.

The Commonwealth’s reliance on Code § 16.1-269.6(E) in Moore’s

case, however, is misplaced. By its express terms this statute does

not purport to cure or waive defects in the initiation of the

juvenile court proceedings. Code § 16.1-269.1(E), enacted subsequent

to this statute, addresses those defects. Code § 16.1-269.6(E), by

contrast, does not address the requirements of Code §§ 16.1-263 and

16.1-264, but only addresses the waiver of a defect in the transfer

hearing conducted in the juvenile court. Cf. Burfoot v.

Commonwealth, 23 Va. App. 38, 51, 473 S.E.2d 724, 731 (1996). Thus,

Code § 16.1-269.6(E) does not operate to cure or waive the initial

defect in the juvenile court proceedings where, as here, the juvenile

court fails to give the parental notice of the initiation of juvenile

court proceedings as statutorily mandated.

In short, the juvenile court in Moore’s case never acquired the

authority to exercise its jurisdiction to conduct the transfer

hearing that resulted in the transfer of Moore’s case to the circuit

13
court. Accordingly, the circuit court never acquired the authority

to exercise its jurisdiction to try Moore for the criminal offenses

charged in the indictments, and Moore’s convictions in the circuit

court are void. This result is consistent with our holdings in French

and Baker II.

For these reasons, we will reverse the judgment of the Court of

Appeals and remand this case with directions that the case be

remanded to the trial court for a new trial if the Commonwealth be so

advised. Since Moore has now reached his majority and cannot be

retried as a juvenile, if the Commonwealth elects to retry him, Moore

should be tried on new indictments. French, 207 Va. at 80, 147

S.E.2d at 743-44.

Reversed and remanded.

JUSTICE COMPTON, dissenting.

In my opinion, the defendant waived the defect in the

juvenile court proceeding.

Code § 16.1-269.6(E) plainly provides: "Any objection to

the jurisdiction of the circuit court pursuant to this article

shall be waived if not made before arraignment."

Baker did not involve interpretation of this statute. See

Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999) (per

curiam), aff'g Baker v. Commonwealth, 28 Va. App. 306, 504

S.E.2d 394 (1998).

14
 As I understand the majority's reaction to this statute,

waiver does not apply here because application of the statute is

restricted to proceedings described in Article 7 of Chapter 11

of Title 16.1 of the Code, which does not include statutes

dealing with the initiation of the juvenile court proceedings.

As I interpret Code § 16.1-269.6(E), it plainly speaks

globally to the jurisdiction of the circuit court. Acquisition

of this jurisdiction involves one continuous process and results

from the interplay of many statutes not codified within Article

7, including the Article 5 notice provisions of former Code

§§ 16.1-263 and -264. In other words, a circuit court's

jurisdiction is acquired not only by the transfer proceeding

mentioned in Article 7 but also by the initiation requirements

mentioned in Article 5.

Therefore, I would affirm the judgment of the Court of

Appeals, which affirmed the defendant's convictions.

JUSTICE KINSER, with whom JUSTICE LACY joins, dissenting.

Because I believe that David Allen Moore has defaulted the

alleged error under Rules 5:17(c) and 5:25, I would affirm his

convictions.

Before discussing my reasons for this conclusion, it is

important to note, as does the majority, that the instant case

comes to us in an entirely different procedural posture than did

15
the case of Baker v. Commonwealth, 258 Va. 1, 516 S.E.2d 219

(1999) (per curiam). Although Moore alleges the same error as

the one addressed in Baker, namely the failure to give notice of

the initiation of juvenile proceedings to the juvenile’s father

in accordance with former Code § 16.1-263 (1994) 9 and present

Code § 16.1-264 (1994), 10 Moore failed to raise an objection with

regard to the issue either before the juvenile and domestic

relations district court (juvenile court) or the circuit court.

To the contrary, the juvenile court judge stated in her notes,

which are part of the record in this appeal, that neither party

presented any question regarding the sufficiency of the notice

required under former Code § 16.1-263 and present Code § 16.1–

264. The juvenile court then found that notice as prescribed in

those statutes had been given. Likewise, Moore did not assign

error to this alleged defect in his petition for appeal to the

Court of Appeals. Instead, he raised the question whether the

circuit court lacked jurisdiction to try him as an adult because

9
This section was amended by the General Assembly in 1999

to require the summons of only one of a juvenile’s parents,

while the former section required notice to both parents.

10
Code § 16.1-264 remains the same as it was in 1994.

16
the juvenile court did not comply with the notice provisions of

former Code § 16.1-263 and present Code § 16.1–264 for the first

time before this Court. 11

In contrast to Moore, the defendant in Baker preserved his

objection to the error by filing a motion to dismiss before he

was indicted. Baker also timely raised the issue on appeal.

Thus, we did not have to determine in Baker whether the error

was one that deprived the juvenile court of its subject matter

jurisdiction and thus could be raised at any time. 12

Consequently, this Court’s decision in Baker is not dispositive

11
Moore has not asked that his failure to object to the

lack of notice be considered under the “ends of justice”

exception to the requirements of Rule 5:25.

12
A court’s subject matter jurisdiction is the only type of

jurisdiction that cannot be waived. Morrison v. Bestler, 239

Va. 166, 169, 387 S.E.2d 753, 755 (1990). Thus, an error, other

than one addressing a court’s lack of subject matter

jurisdiction, is deemed waived if not timely raised. See Rules

5:17(c) and 5:25.

17
of the present question whether Moore has defaulted the alleged

error.

In analyzing this question, I begin with a series of this

Court’s decisions in which we permitted defendants, in the

context of habeas corpus proceedings, to collaterally attack

their prior convictions because certain mandatory procedures

were not followed in their juvenile court proceedings. In

Peyton v. French, 207 Va. 73, 147 S.E.2d 739 (1966), the

juvenile court “certified” felony charges against the juvenile

to the circuit court so the juvenile could be tried as an adult,

but the juvenile court did so without notice to the juvenile or

his parents, without the presence of even one of his parents,

without the appointment of a guardian ad litem for the juvenile,

and without a hearing. Id. at 75, 147 S.E.2d at 740. At that

time, former Code § 16.1-172 (1960) provided that “[i]n no case

shall the hearing proceed until the parent or parents of the

child, if residing within the State, . . . have been notified of

such.” 13 If none of the persons required to be notified of the

hearing were present in court at the time of the hearing, former

13
Neither French nor any of its progeny presented an issue

concerning the non-residency of a juvenile’s parent. Thus, that

portion of the statute is not relevant to my analysis.

18
Code § 16.1-173 (1960) required the juvenile court to appoint a

guardian ad litem to represent the interests of the juvenile.

That appointment had to occur before the hearing could proceed,

and the guardian ad litem had to be present at the hearing. Id.

at 76, 147 S.E.2d at 741. This Court said the complete failure

to comply with the statutory requirements was a violation of due

process and concluded that compliance with those provisions was

necessary “before criminal jurisdiction in a proper court of

record comes into being.” Id. at 79, 147 S.E.2d at 743.

In Gregory v. Peyton, 208 Va. 157, 156 S.E.2d 624 (1967),

we again confronted the failure to appoint a guardian ad litem

for the juvenile when neither of his parents was present at the

hearing. Id. at 158, 156 S.E.2d 624. There, we reaffirmed our

holding in French that the failure “to comply with the

applicable provisions of the [j]uvenile . . . [l]aw rendered the

subsequent proceeding in the criminal court void.” Id. at 159-

60, 156 S.E.2d at 625. This Court addressed the same issue in

Gogley v. Peyton, 208 Va. 679, 160 S.E.2d 746 (1968), where we

applied our decision in French retrospectively so as to void the

juvenile’s convictions. 208 Va. at 680, 160 S.E.2d at 747.

Again, in Pruitt v. Peyton, 209 Va. 532, 165 S.E.2d 288 (1969),

we held that the failure to appoint a guardian ad litem for a

juvenile after neither of his parents appeared at his juvenile

19
court hearing was “jurisdictional,” and consequently rendered

the juvenile’s convictions void. Id. at 535, 165 S.E.2d at 290.

While the errors in the above cases were raised by the

respective defendants in petitions for writs of habeas corpus,

in Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775 (1972),

which was a direct appeal of the defendant’s conviction as a

recidivist, we also permitted Jones to collaterally attack his

underlying juvenile conviction. We did so because the official

records of the juvenile court were silent as to whether either

of Jones’ parents had been notified of his juvenile court

proceeding, whether either was present at the hearing, and

whether a guardian ad litem had been appointed to represent him

at the juvenile court proceeding. Id. at 427, 192 S.E.2d at

777. Again relying on our decision in French, we held that the

failure to give notice to Jones’ parents and to appoint a

guardian ad litem in the absence of a parent deprived the trial

court of jurisdiction. Id. at 428, 192 S.E.2d at 777.

However, this Court has not always held that the failure to

comply with mandatory provisions regarding juvenile proceedings

deprived the juvenile court of its jurisdiction. For example,

in Turner v. Commonwealth, 216 Va. 666, 222 S.E.2d 517 (1976),

we decided that a mandatory requirement that “[n]otice in

writing of the time, place and purpose of [a transfer] hearing”

be provided “to the child and his parents . . . or attorney” was

20
not jurisdictional. Id. at 667, 222 S.E.2d at 518. In that

case, the juvenile, his father, and his attorney all received

oral notice of the hearing. 14 Id. at 668, 222 S.E.2d at 519. We

concluded that the juvenile court’s failure to comply with the

requirement of written notice was “a mere procedural defect,”

which could not be challenged as error if not timely raised.

Id. at 669-70, 222 S.E.2d at 520.

More recently, this Court decided Jackson v. Commonwealth,

255 Va. 625, 499 S.E.2d 538 (1998), cert. denied, 525 U.S. 1067

(1999). There, in the context of determining whether certain

transfer proceedings were conducted appropriately, we held that

statutory language providing that “[t]he circuit court shall,

within a reasonable time after receipt of the case from the

juvenile court (i) examine all . . . papers, reports and orders

. . .,” established a “jurisdictional” requirement that such a

transfer review take place, but merely a “procedural” rule for

the time of review. Id. at 642-43, 499 S.E.2d at 549. (Emphasis

added.)

14
The juvenile’s parents and attorney were present at the

hearing, but it is not clear if the mother had previously been

notified of the hearing.

21
 Upon reviewing the decisions in French and its progeny, it

becomes evident that this Court addressed “jurisdictional”

defects in those cases. However, we never clearly specified

that we were considering subject matter jurisdictional defects.

Nevertheless, the question of the juvenile court's subject

matter jurisdiction was implicated because we allowed the

defendants in French, Gregory, Gogley, Pruitt, and Jones to

collaterally attack their juvenile convictions. In those

decisions, this Court recognized that the statutes at issue

imposed mandatory requirements regarding juvenile proceedings

and that those requirements were coupled with limiting language

that prohibited the court from going forward with a hearing

until the requirements were fulfilled. Therefore, the Court

held that compliance with those mandatory requirements was a

prerequisite for the juvenile court's exercise of its subject

matter jurisdiction.

I believe that there were two provisions in effect when the

juvenile proceedings at issue in French and its progeny were

conducted that rendered the defects in those cases

“jurisdictional.” The first one was the requirement that “[i]n

no case shall the hearing proceed until the parent or parents of

22
the child . . . have been notified . . . .” 15 Former Code

§ 16.1-172 (1960). 16 (Emphasis added). The second provision was

former Code § 16.1-173 (1960), requiring that when no person

required to be notified under former Code § 16.1-172 (1960) was

present in court for the hearing, the “court shall, before

15
That provision also incorporated the requirement that

summons issue to “all proper or necessary parties” upon the

issuance of a petition against a juvenile, former Code § 16.1-

166 (1960), which now appears in different form in Code § 16.1-

263 (1999).

16
At the time of Pruitt’s juvenile proceedings, this

language was codified at former Code § 16-172.38 (1952), and at

the time of Jones’ juvenile proceedings, the pertinent

provision, former Code § 63-273 (R.P. 1948), provided that “[i]n

no case shall the trial proceed until the parents or parent of

such child . . . have been duly notified . . . .” Jones, 213

Va. at 427, 192 S.E.2d at 777.

23
proceeding with the hearing, appoint a . . . guardian ad litem

to represent the interests of the child.” 17 (Emphasis added). 18

In 1973, after this Court's decisions in French and its

progeny, and before the commission of the crimes at issue in

Turner, the General Assembly enacted former Code § 16.1-176.2

(1973), now Code § 16.1-270 (1999). That section allows a

juvenile, prior to a transfer hearing and with the consent of

counsel, to waive the jurisdiction of the juvenile court and

have the case transferred to the appropriate circuit court.

17
At the time of Pruitt’s juvenile proceedings, former Code

§ 16-172.39 (1952) provided for the appointment of a guardian ad

litem when those persons to whom notice needed to be given as

prescribed in former Code § 16-172.38 (1952) were not present.

At the time of the juvenile proceedings involving Jones, former

Code §§ 63-269 and -272 (R.P. 1948) required that the juvenile’s

parents be summonsed, and if at least one of them did not

appear, that a guardian ad litem be appointed for the juvenile.

18
In some of the French line of cases, the failure to

comply with only one provision rendered the convictions void,

while in some cases, there was a failure to appoint a guardian

ad litem as well as a failure in the required notice.

24
That waiver provision played a role in this Court’s decision in

Turner, where we held that the requirement of “written” notice

was merely procedural. 216 Va. at 669, 222 S.E.2d at 520. In

deciding whether Moore can now challenge his convictions because

of the alleged failure to summons his father after the petition

was filed against Moore, I also find that waiver provision

significant because it allows a juvenile, with the consent of

his attorney, to forego virtually all the safeguards afforded to

the juvenile before a case is transferred to the circuit court.

Even more compelling is the fact that in 1977, the General

Assembly repealed and reorganized the Code provisions pertaining

to juveniles, and in doing so, deleted the requirement that

“[i]n no case shall the hearing proceed” unless the juvenile’s

parent or parents are notified. Former Code § 16.1-172 (1960). 19

Similarly, in 1968, the General Assembly amended former Code

§ 16.1-173 (1960), removing the requirement that the “court

shall, before proceeding with the hearing,” appoint a guardian

ad litem when no person required to be summonsed is present at

19
That section was amended between 1960 and 1977 but

retained the quoted language until 1977.

25
the hearing. 20 Thus, the statutory provisions at issue in the

present case no longer contained limiting language, such as that

found in former Code §§ 16.1-172 and -173 (1960), that

specifically prohibited the juvenile court from proceeding in

the absence of notice to both parents. Cf. Jamborsky v.

Baskins, 247 Va. 506, 511 n.*, 442 S.E.2d 636, 639 n.* (1994)

(giving example of limiting prohibitory language). Instead,

former Code § 16.1-263 and present Code § 16.1–264 merely

required that a summons be issued to the juvenile's parents

after the filing of a petition against the juvenile.

Furthermore, a juvenile like Moore can waive the jurisdiction of

the juvenile court and virtually all its attendant safeguards.

I believe that the majority incorrectly equates statutory

provisions that are “mandatory” with those that are

prerequisites to a juvenile court’s exercise of its subject

matter jurisdiction. See, e.g., the majority’s quotation in the

present case from Moore v. Commonwealth, No. 990776, 259 Va.

___, ___ S.E.2d ___ (2000) (this day decided). As already

20
In its place, the legislature enacted language requiring

that the juvenile be advised of his or her right to counsel,

which is advice that must be given whether a parent is present

or not. Former Code § 16.1-173 (1968).

26
noted, the error in Turner was “a mere procedural defect,” 216

Va. at 669, 222 S.E.2d at 520, although the notice requirement

at issue there used the mandatory term “shall.” Former Code

§ 16.1-176(a)(3) (1974). The mandatory nature of a requirement,

standing alone, does not always make that requirement

jurisdictional.

The majority concludes that the notice provision at issue in

this case is mandatory, and in its view, therefore jurisdictional,

because of “this Court’s unswerving adherence to the nature of” the

parental notice requirement with regard to juvenile proceedings.

However, in doing so, the majority ignores the statutory changes,

discussed above, deleting the language that prohibited the juvenile

court from proceeding with a hearing until certain requirements were

fulfilled. Furthermore, this Court has not, in the context of a

collateral attack on a juvenile conviction, addressed the parental

notice requirement at issue today since the 1977 amendments, much

less “unswerving[ly] adhere[d]” to a conclusion that the present

requirement is jurisdictional.

Since the juvenile court is a creature of statute, the

General Assembly can modify any prerequisites for the juvenile

court’s exercise of its subject matter jurisdiction. See Burke

v. Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d 743, 746

(1999) (holding that when subject matter jurisdiction is

statutorily created, General Assembly can alter rules governing

27
judicial exercise of that jurisdiction). Thus, I conclude that

what was deemed a “jurisdictional” defect in the French case and

its progeny is no longer such because of the intervening changes

in the language of the relevant statutory provisions. 21

Therefore, Moore cannot now raise the failure to summons his

father as a basis for voiding his convictions. See Humphreys v.

Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 894

(1947)(court’s subject matter jurisdiction cannot be waived);

Morrison v. Bestler, 239 Va. 166, 169, 378 S.E.2d 753, 755

(1990) (only type of jurisdiction which cannot be waived is

subject matter jurisdiction). Accordingly, under Rules 5:17(c)

and 5:25, Moore has defaulted his objection to the alleged

error.

21
The decision of the Supreme Court of the United States in

In re Gault, 387 U.S. 1 (1967), does not alter my analysis.

That case, decided after this Court had decided French, stressed

the content and timeliness of the constitutionally required

notice.

28
 For these reasons, I respectfully dissent and would affirm

Moore’s convictions. 22

22
Because I conclude that Moore had defaulted his objection

to the alleged error, I need not address Code § 16.1-269.6(E)

(1994).

29