January 27, 2000
Professor Richard A. Williamson Elizabeth Oyster, Esq.
College of William and Mary Geronimo Development Corp.
Williamsburg, Virginia 23185 606 25th Avenue, South
Suite 206
Mr. David M. George St. Cloud, Minnesota 56301
Government Relations Contracts
D5-20 Mead Data Central, Inc.
West Group Legal Data Collections
610 Opperman Drive 8891 Gander Creek Drive
Eagan, Minnesota 55123 Miamisburg, Ohio 45342
Paul Fletcher, Publisher
Virginia Lawyers Weekly
106 North Eighth Street
Richmond, Virginia 23219
Re: Andre Vashawn Carter, a/k/a Dre
v. Commonwealth of Virginia
Record No. 0076-98-4
Gentlemen and Ms. Oyster:
I am enclosing to you a copy of an order entered by this
Court in the above-referenced case on January 27, 2000. The Court
has directed that this order be published in the appropriate
volumes. I appreciate your cooperation in ensuring that
publication is accomplished.
Sincerely,
Marty K. P. Ring
Deputy Clerk
MKPR:mfr
Enclosure
Tuesday 27th
January, 2000.
Andre Vashawn Carter, a/k/a Dre, Appellant,
against Record No. 0076-98-4
Circuit Court Nos. CR41111 through CR41114
Commonwealth of Virginia, Appellee.
Upon a Rehearing
Before Judges Coleman, Elder and Bumgardner
(Joseph D. Morrissey; James T. Maloney;
Morrissey, Hershner & Jacobs, on brief), for
appellant.
(Mark L. Earley, Attorney General; Virginia
B. Theisen, Assistant Attorney General, on
brief), for appellee.
By memorandum opinion dated June 29, 1999, we rejected
the four assignments of error presented by Andre Vashawn Carter
(appellant) on appeal, and we affirmed his convictions for
first-degree murder, robbery, and use of a firearm in the
commission of each of those offenses, all arising out of an
incident occurring on December 18, 1996, when appellant was
seventeen years old. By order entered October 8, 1999, we stayed
our previous decision and granted appellant’s motion for
rehearing to further evaluate the argument that the circuit court
lacked subject matter jurisdiction to enter those convictions
because of an alleged failure to give notice of the preliminary
hearing to appellant’s father. For the reasons
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that follow, we hold that appellant’s jurisdictional argument is
without merit, and we reinstate our memorandum opinion of June
29, 1999.
Lack of subject matter jurisdiction ordinarily may not
be waived and may be raised even for the first time on appeal
because it renders a conviction void. See, e.g., Burfoot v.
Commonwealth, 23 Va. App. 38, 51, 473 S.E.2d 724, 731 (1996). We
previously have held that the parental notification provisions of
Code §§ 16.1-263 and -264, "relating to procedures for
instituting proceedings against juveniles, are mandatory and
jurisdictional," Karim v. Commonwealth, 22 Va. App. 767, 779, 473
S.E.2d 103, 108-09 (1996) (en banc), and that failure to serve
notice "on the required parties" renders "the transfer of
jurisdiction . . . ineffectual and the subsequent
convictions . . . void," Baker v. Commonwealth, 28 Va. App. 306,
313, 504 S.E.2d 394, 398 (1998), aff’d per curiam, 258 Va. 1, 2,
516 S.E.2d 219, 220 (1999). Both Karim and Baker involved
offenses which occurred before July 1, 1996. See Karim, 22 Va.
App. at 769-70, 473 S.E.2d at 104; Baker, 28 Va. App. at 308, 504
S.E.2d at 395.
Significantly, "[a] court has only such jurisdiction as
is granted to it by statute or by the Constitution." Roach v.
Director, Dep’t of Corrections, 258 Va. 537, 546, ___ S.E.2d ___,
___ (1999). "[W]hen subject-matter jurisdiction is statutorily
created, the legislature is entitled to carve out exceptions to
the general rule governing the judicial exercise of jurisdiction
and provide that the statutorily created subject-matter
jurisdiction may be waived if objection is not made in accordance
with the statute." Burke v. Commonwealth, 29 Va. App. 183, 188,
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510 S.E.2d 743, 746 (1999).
In 1996, the General Assembly enacted just such a
provision when it revised the statutes delineating the conditions
under which a juvenile offender may be tried as an adult. See
1996 Va. Acts, chs. 755, 914. Those amendments apply to
"offenses committed and to records created and proceedings held
with respect to those offenses on or after July 1, 1996." Id.
Code § 16.1-269.1 now provides for the juvenile and domestic
relations district court to conduct a preliminary hearing, rather
than a transfer hearing, for a juvenile fourteen years of age or
older charged with various felonies including murder.
Significantly, it also 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."
Code § 16.1-269.1(E). Thus, the legislature has provided that,
as to offenses committed on or after July 1, 1996, once an
indictment has been returned in the circuit court, any failure to
comply with the parental notification provisions of Code
§§ 16.1-263 and -264 does not deprive the court of subject matter
jurisdiction.
Therefore, assuming without deciding that the juvenile
court failed to comply with the notice provisions of Code
§ 16.1-263, appellant waived his right to challenge that failure
by not raising it before his indictment in the circuit court. 1
Having found no error in the opinion of this Court, the
stay of the June 29, 1999 mandate is lifted, the mandate entered
1
To the extent that appellant’s brief on rehearing may be
construed to assert a violation of his constitutional rights, we
note that even constitutional arguments are waived if not raised
in a timely fashion. See Rule 5A:18; Deal v. Commonwealth, 15
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on that date is reinstated and the judgment of the trial court is
affirmed.
This order shall be published and certified to the
trial court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
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