COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JAMES ARTHUR PRICE, JR.
OPINION BY
v. Record No. 2313-96-1 JUDGE RICHARD S. BRAY
OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
(David G. Wittan, on briefs), for appellant.
Appellant submitting on brief.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
James Arthur Price, Jr. (defendant), a juvenile transferred
to the circuit court for trial as an adult, was convicted on
indictments charging robbery and the related use of a firearm.
Defendant complains on appeal that he was denied a speedy trial
in violation of Code § 19.2-243. Finding that defendant was
continuously in custody in excess of five months from the finding
of probable cause to the commencement of trial, contrary to
statute, we reverse the convictions.
The pertinent procedural history is uncontroverted.
Defendant was arrested and incarcerated on September 19, 1995,
upon petitions alleging the instant offenses. Defendant was then
on probation and subject to the attendant supervision and
jurisdiction of the Newport News Juvenile and Domestic Relations
District Court (district court) as a result of unrelated prior
offenses.
On motion of the Commonwealth to transfer defendant to the
circuit court for prosecution as an adult, the district court
conducted a hearing in accordance with former Code § 16.1-269.1 1
on October 4, 1995. At the conclusion of these proceedings, the
district court found "probable cause to believe [defendant]
committed the delinquent act[s] alleged," ordered him transferred
and certified to the circuit court for "proper criminal
[prosecution]," and "[r]emanded to . . . the Newport News City
Jail." The district court also determined that defendant had
violated terms of the unrelated probation and "committed" him to
the custody of the Department of Juvenile Justice (Department).
Defendant did not appeal either disposition and remained in
custody on both.
Defendant was indicted in the circuit court (trial court)
for the subject crimes on November 13, 1995, and trial was
scheduled for December 15, 1995. Subsequently, the prosecutor
discovered that the trial court had entered no order "advising
the attorney for the Commonwealth that he may seek an indictment"
in accordance with Code § 16.1-269.6(B), and, on December 15,
2
1995, moved the court to "quash" the November indictments.
1
The 1996 amendments to Code §§ 16.1-269.1 and 16.1-269.6
expressly apply only "to offenses committed and to records
created and proceedings held with respect to those offenses on or
after July 1, 1996." See 1996 Va. Acts chs. 755, 914. Unless
otherwise specified, this opinion references the controlling
former statutes, enacted in 1994.
2
Rule 3A:9(a) of the Rules of the Virginia Supreme Court
provides that "[d]efenses and objections made before trial that
heretofore could have been made by other pleas or by demurrers
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Defendant, though still in custody, did not appear for argument
on the motion; however, his counsel was present, voiced no
objection, and the court granted the motion. The record reflects
no related consideration or modification of defendant's
continuing custodial status pursuant to the transfer order of
October 4, 1995.
Shortly thereafter, defendant's probation officer, Gregory
Haywood, learned of the December 15, 1995 proceedings, contacted
the prosecutor on December 18, 1995, and reminded him that
defendant was in the custody of the Department. Haywood
testified that, as a result of the instant offenses, the
Department had "classified" defendant as a "major offender,"
thereby changing his "length of stay" from "several months" on
the unrelated probation violation to "indeterminate," pending a
disposition by the trial court.
On January 3, 1996, the trial court entered an order
properly authorizing the Commonwealth to seek indictments and
directing that defendant "be transferred from the juvenile
detention facility to the Newport News City Jail." Accordingly,
defendant was again indicted on January 8, 1996, and thereafter
arrested on a capias and "remanded to jail," although already in
custody dating from arrest on September 19, 1995. He remained in
and motions to quash shall be made only by motion to dismiss or
to grant appropriate relief, as provided in these Rules."
Because the parties and the trial court referenced the
Commonwealth's "motion to quash" the indictments, this opinion
adopts such terminology.
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custody until trial on July 11, 1996.
Code § 19.2-243, oftentimes referenced as the "speedy trial
statute," provides, in pertinent part, that
[w]here a general district court has found
that there is 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 by the district
court; . . . .
If there was no preliminary hearing in
the district court, or if such preliminary
hearing was waived by the accused, the
commencement of the running of the five and
nine months periods, respectively, set forth
in this section, 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 and nine months periods, respectively,
shall commence to run from the date of his
arrest thereon. 3 . . .
On May 9, 1996, defendant moved to dismiss the prosecutions
as violative of the speedy trial statute. The trial court denied
the motion and convicted defendant at trial on July 11, 1996.
Defendant argues on appeal that "even after the [initial]
indictments were quashed, the underlying transferred charges
still rested in the bosom of the [circuit] court, awaiting action
by the judge in accordance with Code § 16.1-269.6(B)." Thus,
defendant reasons that he remained in continuous custody on the
3
The provisions of Code § 19.2-243 do not apply to delays
occasioned by certain causes not in issue here.
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offenses from the finding of probable cause by the district court
on October 4, 1995, until trial on July 11, 1996, a period
substantially in excess of the five months prescribed by Code
§ 19.2-243.
In response, the Commonwealth suggests that the district
court proceedings did not constitute a "preliminary hearing" and
lacked the determination of probable cause contemplated by the
speedy trial statute. The Commonwealth, therefore, maintains
that defendant was prosecuted on the indictments of January 8,
1996, following a nolle prosequi of the previous indictments,
thus triggering the speedy trial time clock on January 8, 1996,
not October 4, 1995. 4 Moreover, the Commonwealth attributes
defendant's "continuous custody" to "other charges," which
excluded the instant prosecution from the limitations of Code
§ 19.2-243. The Commonwealth's arguments, however, overlook the
procedural course of the prosecution.
Defendant, a juvenile, came before the district court, the
court having "exclusive, original jurisdiction," upon petitions
alleging commission of the offenses. See Code § 16.1-241;
Burfoot v. Commonwealth, 23 Va. App. 38, 45, 473 S.E.2d 724, 728
(1996) (citing Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739,
742 (1966)). On motion of the Commonwealth, the district court
conducted a transfer hearing pursuant to Code § 16.1-269.1, which
4
If the speedy trial computation begins on January 8, 1996,
it is undisputed that the trial was timely.
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provided, in relevant part, that:
If a juvenile fourteen years of age or older
is charged with an offense which would be a
felony if committed by an adult, the court
shall, on motion of the attorney for the
Commonwealth and prior to a hearing on the
merits, hold a transfer hearing and may
retain jurisdiction or transfer such juvenile
for proper criminal proceedings to the
appropriate circuit court having criminal
jurisdiction of such offenses if committed by
an adult. Any transfer to the appropriate
circuit court shall be subject to the
. . . condition[] [that] . . . [t]he juvenile
court finds that probable cause exists to
believe that the juvenile committed the
delinquent act as alleged or a lesser
included delinquent act which would be a
felony if committed by an adult . . . .
1994 Va. Acts chs. 859, 949 (emphasis added) (codified as Code
§ 16.1-269.1 and amended by 1996 Va. Acts chs. 755, 914). Thus,
the jurisdiction of the circuit court over defendant was
predicated upon a proper transfer hearing in the district court
and related order.
This statutory scheme "'afford[s] juvenile defendants . . .
the protection and expertise of the juvenile court during the
preliminary, or certification, hearing stage of a criminal
prosecution.'" Burfoot, 23 Va. App. at 46, 473 S.E.2d at 728
(emphasis added) (quoting Payne v. Warden, 223 Va. 180, 184, 285
S.E.2d 886, 888 (1982)). Although the transfer hearing "'is not
as limited in its scope as a preliminary hearing under the
criminal procedures applicable to an adult,'" id. at 46, 473
S.E.2d at 728 (quoting Peyton, 207 Va. at 78, 147 S.E.2d at 742),
both proceedings require the district court to find probable
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cause to believe that the accused committed the alleged felonious
act as a condition to further prosecution of the offense in the
circuit court. See Code § 16.1-269.1(A)(2); Code § 19.2-218;
Burfoot, 23 Va. App. at 45, 473 S.E.2d at 728.
Accordingly, when the district court certified and
transferred defendant for trial as an adult in the circuit court,
the district court necessarily found the requisite probable cause
contemplated by the speedy trial statute. Because the transfer
order directed that defendant be "[r]emanded to jail," the
prescribed five month limitation of Code § 19.2-243 commenced on
October 4, 1995. It is immaterial that such custody coincided
with detention of defendant incidental to the unrelated
commitment. See Funk v. Commonwealth, 16 Va. App. 694, 695-96,
432 S.E.2d 193, 194 (1993).
Following entry of the transfer order by the district court,
Code § 16.1-269.6(A) directed that "the clerk [of the district
court] . . . forward . . . all papers connected with the case" to
the trial court, Code § 16.1-269.6(A), which "shall [then] . . .
examine all such papers, . . . and enter an order either
remanding the case to the juvenile court or advising the attorney
for the Commonwealth that he may seek an indictment." Code
§ 16.1-269.6(B). Upon authorizing indictment, the circuit court
must order transfer of the "juvenile from the juvenile detention
facility to an appropriate local correctional facility," Code
§ 16.1-269.6(B), and the juvenile court shall be "divest[ed]
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. . . of its jurisdiction over the case." Code § 16.1-269.6(C).
Adherence to the statutory transfer procedure is mandatory and
jurisdictional. Burfoot, 23 Va. App. at 48-49, 473 S.E.2d at
730; see Peyton, 207 Va. at 80, 147 S.E.2d at 743.
Thus, irrespective of the trial court's order to quash, the
initial indictments of defendant were a nullity, obtained without
the benefit of the enabling order required by Code
§ 16.1-269.6(B). The court simply remedied of record an error or
oversight in the proceedings, without disturbing the legal
efficacy of the pending transfer order or effecting a nolle
prosequi. See Cheeks v. Commonwealth, 20 Va. App. 578, 586, 459
S.E.2d 107, 111 (1995) (reversed and remanded to circuit court a
conviction resulting from erroneous transfer proceedings in the
circuit court). Otherwise, the circuit court would have been
without the procedural vehicle necessary to authorize the January
8, 1996 indictments pursuant to Code § 16.1-269.6.
Accordingly, defendant was held continuously in custody from
the finding of probable cause in the district court on October 4,
1995, until trial on July 11, 1996, in violation of Code
§ 19.2-243, and we must reverse and dismiss the convictions.
Reversed and dismissed.
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