COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton
HAYWOOD LOUIS BURKE
OPINION BY
v. Record No. 0061-98-1 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
(Richard C. Clark, Senior Assistant Public
Defender; Office of the Public Defender, on
brief), for appellant. Appellant submitting
on brief.
(Mark L. Earley, Attorney General; Richard B.
Campbell, Assistant Attorney General, on
brief), for appellee.
Haywood Louis Burke ("appellant") appeals his conviction of
malicious wounding on the ground that his preliminary hearing was
improperly held in the juvenile and domestic relations district
court ("juvenile court"). Appellant argues the juvenile court
did not have jurisdiction to conduct the preliminary hearing
because his victim was not a "family or household member" as
specified in Code § 16.1-241(J). We find that appellant waived
any objection to this defect in procedure because he failed to
raise it before trial in the circuit court. Accordingly, we
affirm his conviction.
Appellant was arrested and indicted for malicious wounding
after he struck Myra Saunders in the head and face multiple
times. Appellant and Saunders were not married but had a
romantic relationship with one another at the time. Although the
couple had no children in common and maintained separate
residences in different cities, they frequently spent weekends
together. The juvenile court held a preliminary hearing and then
certified appellant's case to the circuit court for trial.
Appellant raised no objection, in either the juvenile or circuit
court, to the juvenile court's exercise of jurisdiction over his
preliminary hearing. Appellant was subsequently convicted in the
circuit court and received a sentence of ten years in prison with
six years suspended.
On appeal, appellant contends the juvenile court did not
have jurisdiction over his preliminary hearing because Saunders
was not a "family or household member," as defined by Code
§ 16.1-228. Appellant also contends he did not waive this
jurisdictional issue by his failure to object, citing authority
for the proposition that the absence of subject-matter
jurisdiction is always cognizable on appeal. Winston v.
Commonwealth, 26 Va. App. 746, 497 S.E.2d 141 (1998); Burfoot v.
Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996); Pope v.
Commonwealth, 19 Va. App. 130, 449 S.E.2d 269 (1994). We find
that appellant's reliance on these decisions is misplaced and
disagree with his contentions.
Currently, Code § 16.1-241(J) gives the juvenile court
"exclusive original jurisdiction" over:
All offenses in which one family or household
member is charged with an offense in which
another family or household member is the
victim . . . .
- 2 -
In prosecution for felonies over which the
court has jurisdiction, jurisdiction shall be
limited to determining whether or not there
is probable cause. Any objection based on
jurisdiction under this subsection shall be
made . . . , in a nonjury trial, before the
earlier of when the court begins to hear or
receive evidence or the first witness is
sworn, or it shall be conclusively waived for
all purposes.
Code § 16.1-241(J) (emphasis added). "A primary rule of
statutory construction is that courts must look first to the
language of the statute. If a statute is clear and unambiguous,
a court will give the statute its plain meaning." Loudoun County
Dep't of Soc. Servs. v. Etzold, 245 Va. 80, 84, 425 S.E.2d 800,
802 (1993). The above-emphasized amendment to the statute is
clear. Code § 16.1-241(J) requires an accused to object to the
juvenile court's jurisdiction to determine probable cause before
his or her trial in the circuit court commences; otherwise, the
objection is waived.
Notwithstanding the amendment to Code § 16.1-241(J),
appellant urges us to find that he did not waive his objection to
jurisdiction in this case, contending that objections to
subject-matter jurisdiction are cognizable on appeal, even if not
preserved below. We disagree.
Contrary to appellant's assertions, our decision in Pope
does not affect the result here. In Pope, the defendant
challenged the jurisdiction of the circuit court, alleging that,
under Code § 16.1-241(J), he was improperly brought before the
general district court for a preliminary hearing. 19 Va. App. at
- 3 -
131, 449 S.E.2d at 269-70. At that time, Code § 16.1-241(J) gave
the juvenile court exclusive original jurisdiction over the
following matters:
All offenses in which one family or household
member is charged with an offense in which
another family or household member is the
victim. In prosecution for felonies over
which the court has jurisdiction,
jurisdiction shall be limited to determining
whether or not there is probable cause.
Pope argued that, because he committed an offense against a
"family or household member," his preliminary hearing could only
be held in the juvenile court. Id. A panel of this Court agreed
and reversed Pope's conviction.
To the extent that a preliminary hearing was
to be had in this case where the victim was a
family member, it could not occur anywhere
but in the juvenile and domestic relations
court. Nothing in Code § 16.1-241(J)
conferred upon the general district court
power to act in the stead of the juvenile and
domestic relations district court. That
general district court acted in the absence
of jurisdiction and thus had no power to
certify the case to the circuit court.
Id. at 133-34, 449 S.E.2d at 271.
Our decision in Pope is inapposite as it was decided under
an earlier version of Code § 16.1-241(J). In its earlier form,
the statute did not address the timing of an objection based on
the juvenile court's exclusive jurisdiction to determine probable
cause in offenses between family members. As a result, we
declined to treat Pope's waiver of his preliminary hearing before
the general district court as a waiver of his objection to
jurisdiction under Code § 16.1-241(J). Id. at 133, 449 S.E.2d at
- 4 -
270. We have not previously addressed the amendment to Code
§ 16.1-241(J), which was adopted subsequent to our decision in
Pope. We find the amended language controls this case.
When new provisions are added to existing legislation by
amendment, we presume that, in making such amendment, the
legislature "acted with full knowledge of and in reference to the
existing law upon the same subject and the construction placed
upon it by the courts." City of Richmond v. Sutherland, 114 Va.
688, 693, 77 S.E. 470, 472 (1913). We further presume that the
legislature acted purposefully with the intent to change existing
law. Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va.
596, 600, 331 S.E.2d 476, 479 (1985); Wisniewski v. Johnson, 223
Va. 141, 144, 286 S.E.2d 223, 224-25 (1982).
Appellant's analysis fails to recognize that subject-matter
jurisdiction is a matter of legislative or constitutional
conferral and definition. Winston, 26 Va. App. at 752, 497
S.E.2d at 144. It follows that, when 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. See id. at 752 n.1, 497
S.E.2d at 144 n.1. See also Burk v. Burk, 577 P.2d 65, 66-67
(Okla. 1978).
Finally, we note that appellant's reliance on Burfoot is
misplaced. Burfoot is distinguishable on its facts and the
- 5 -
statutes which governed its disposition. Our decision in Burfoot
applied well-established principles of law addressing the due
process rights of juvenile defendants alleged to have committed
criminal offenses. Burfoot, 23 Va. App. at 45-49, 473 S.E.2d at
728-30. See Matthews v. Commonwealth, 216 Va. 358, 360-61, 218
S.E.2d 538, 540-41 (1975); Peyton v. French, 207 Va. 73, 79, 147
S.E.2d 739, 743 (1966). In such cases, the proceedings set forth
in Code §§ 16.1-260 and 16.1-269.1 were determined to be
mandatory and jurisdictional. Thus, among the statutory
prerequisites to the circuit court's jurisdiction are the
initiation of a proceeding by petition and the conduct of a
transfer hearing. Burfoot, 23 Va. App. at 49, 473 S.E.2d at 730.
In contrast to the matter before us here, the legislature
adopted no exception to the jurisdictional prerequisites of
prosecuting a juvenile in the circuit court. Winston, 26 Va.
App. at 752 n.1, 497 S.E.2d at 144 n.1 ("The waiver provision of
Code § 16.1-269.6(E) does not apply to cases . . . in which 'no
petition was filed or transfer hearing was held.'" (quoting
Burfoot v. Commonwealth, 23 Va. App. 38, 51, 473 S.E.2d 724, 731
(1990))). Furthermore, the mandated procedures to initiate a
criminal prosecution of a juvenile in circuit court were not made
applicable to adults charged with violations of the criminal law
under Code §§ 16.1-241(I) or 16.1-241(J). 1 This distinction is
1
In cases where an adult is charged with
violations of the criminal law pursuant to
subdivisions I or J of § 16.1-241, the
- 6 -
ostensibly rooted in the policy considerations underlying the
enactment of law governing the treatment of juvenile offenders. 2
These considerations do not pertain to adult offenders whose
offense may bring them within the purview of the juvenile court.
We hold that the legislature, when it enacted Code
§ 16.1-241(J), created an exception to the general rule that lack
of subject-matter jurisdiction cannot be waived. Accordingly, we
_________________
procedure and disposition applicable in the
trial of such cases in general district court
shall be applicable to trial in juvenile
court. . . .
Proceedings in cases of adults may be
instituted on petition by any interested
party, or on a warrant issued as provided by
law, or upon the court's own motion.
Code § 16.1-259 (emphasis added).
2
The Supreme Court of Virginia articulated these policy
considerations in Peyton.
The powers conferred [upon the juvenile and
domestic relations district court by the
Code] are to be exercised to effect its
beneficial purposes, and in all proceedings
concerning the disposition, custody and
control of children coming within the purview
of the law the court shall proceed upon the
theory that the welfare of the child is the
paramount concern of the State. . . . [T]he
clear purpose and intent of the Juvenile and
Domestic Relations Court Law cannot be
achieved if it is not mandatory that the
proceedings set forth in [Code §§ 16.1-260
and 16.1-269] be complied with. Indeed, the
very language of the statutes makes it
mandatory that the aforesaid mentioned
statutes be followed before criminal
jurisdiction in a proper court of record
comes into being.
- 7 -
_________________
Peyton, 207 Va. at 79, 147 S.E.2d at 743.
- 8 -
hold that appellant waived his objection to the juvenile court's
exercise of jurisdiction over his preliminary hearing by not
raising such objection before trial in the circuit court.
The appellant's conviction is affirmed. 3
Affirmed.
3
Because we decide this case on the ground that appellant
waived his objection to the jurisdiction of the juvenile court to
determine probable cause, we do not decide whether his
relationship to Saunders falls within the ambit of the term
"family or household member," as the term is defined by Code
§ 16.1-228.
- 9 -