COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
JAMARYL GILBERT
MEMORANDUM OPINION * BY
v. Record No. 1515-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Jamaryl Gilbert (appellant) was convicted in two separate
bench trials of possession of cocaine, breaking and entering,
robbery, abduction and three firearm charges. The sole issue
raised on appeal is whether the provisions of Code
§ 16.1-269.1(E) cured a defect in the felony proceedings by
failing to properly notify appellant's biological mother and
father of the juvenile proceedings. We conclude that appellant
waived any objection to the jurisdiction of the circuit court by
failing to raise any such objection prior to indictment.
Accordingly, we affirm.
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The evidence established that on October 5, 1998, a
petition was filed in the juvenile court, charging appellant,
then 14 years old, with possession with intent to distribute
cocaine, in violation of Code § 18.2-248. On October 6, 1998,
summonses were issued to appellant, Katherine Gilbert
(appellant's grandmother), Newton Lowery (appellant's father),
and Marguerite Mayfield (appellant's mother). Appellant's
grandmother had legal custody of him. The summonses indicated
they were personally served on appellant and his grandmother,
but they were silent as to service on Lowery and Mayfield. The
juvenile court certified the charge to the circuit court, and
the grand jury returned an indictment on March 1, 1999. In a
bench trial on April 29, 1999, appellant was convicted of
possession of cocaine, in violation of Code § 18.2-250, and
sentenced to two years imprisonment.
On December 28, 1998, petitions were issued in the juvenile
court, charging appellant with breaking and entering, robbery,
abduction and three firearm charges. On January 4, 1999,
summonses for the offenses were issued to appellant and his
grandmother, in person, and to Lowery and Mayfield, appellant's
biological parents. The summonses to the parents indicated that
both were incarcerated in the Newport News City Jail. The
juvenile court certified the charges to the circuit court, and
on March 1, 1999, the grand jury returned indictments for all
six felonies. Following a bench trial on April 20, 1999, the
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trial court convicted appellant on the offenses charged and
sentenced him to a total of fifty-eight years, forty-five
suspended.
Appellant did not challenge the circuit court's
jurisdiction or raise an objection to the proceedings based upon
the lack of notice to his biological parents in the juvenile
court. On appeal, he contends the circuit court lacked
jurisdiction because the Commonwealth failed to comply with the
mandatory notice provisions of Code §§ 16.1-263 and -264. He
argues that jurisdiction can be raised at any time and,
therefore, trial counsel's failure to raise the issue at trial
did not constitute a waiver.
This case is controlled by the Supreme Court's recent
decision in Moore v. Commonwealth, 259 Va. ___, ___ S.E.2d ___
(2000) (No. 990776). In Moore, the Supreme Court affirmed the
defendant's four felony convictions, despite the Commonwealth's
failure to comply with the notice requirements of Code
§§ 16.1-263 to -264.
The Commonwealth's failure to notify
the defendant's biological father of the
initiation of juvenile court proceedings, as
required by former Code §§ 16.1-263 and
-264, created a defect in those proceedings.
However, under Code § 16.1-269.1(E), that
defect was cured when the grand jury
returned indictments against the defendant
on the offenses certified to it by the
juvenile court. This curative statutory
provision permitted the circuit court to
exercise its subject matter jurisdiction and
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to try the defendant on the offenses set
forth in the indictments.
Id. at ___, ___ S.E.2d at ___ (citation omitted) (emphasis
added).
In the instant case, the Commonwealth notified appellant's
grandmother, his legal custodian, of the juvenile court
proceedings. Assuming that the Commonwealth was required to
notify both biological parents under former Code §§ 16.1-263 and
-264, any failure to do so was cured when the grand jury
returned indictments on all seven charges on March 1, 1999.
Accordingly, appellant's convictions are affirmed.
Affirmed.
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