Burfoot v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia

ANNE MARIE BURFOOT
OPINION BY
v. Record No. 1591-95-2 JUDGE JOHANNA L. FITZPATRICK
AUGUST 6, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
Joseph W. Kaestner (John B. Moriarty, Jr.;
Kaestner & Pitney, P.C., on briefs), for
appellant.

Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Anne Marie Burfoot (appellant), a juvenile, was transferred

to the circuit court for trial as an adult and was convicted in a

bench trial of malicious wounding in violation of Code § 18.2-51.

The sole issue on appeal is whether the circuit court erred in

exercising jurisdiction over appellant when: (1) the

Commonwealth nolle prossed the initial indictment and directly

indicted her on the charge without filing a second petition in

the juvenile and domestic relations district court, and (2) no

additional transfer hearing was conducted. For the reasons that

follow, we reverse the conviction.
BACKGROUND

On November 27, 1993, the complainant, Michael Eric Jenkins

(Jenkins), was injured during a fight at a party in Dinwiddie

County. A petition was filed in the juvenile and domestic
relations district court on December 8, 1993, charging appellant 1

with malicious wounding of Jenkins. A transfer hearing was held

in the juvenile and domestic relations district court on March

29, 1994, and on May 17, 1994, appellant was certified for trial

in the circuit court. The grand jury returned an indictment for

malicious wounding on May 19, 1994, and trial was scheduled for

June 24, 1994. Several witnesses for the Commonwealth failed to

appear on the day of trial, and the Commonwealth nolle prossed

the indictment against appellant.
Appellant was again indicted on the same malicious wounding

charge on November 21, 1994. No additional petition was filed in

the juvenile and domestic relations district court, and no

transfer hearing was held. At the trial on April 13, 1995, the

circuit court judge sua sponte asked whether appellant had a

problem with the transfer or "any difficulty from a procedural

standpoint to proceeding today." Appellant's attorney asked

whether the Commonwealth nolle prossed the indictment because its

witnesses failed to appear and conceded that, "[i]f that was the

reason, the transfer is appropriate." The Commonwealth's

attorney confirmed that a nolle prosequi of the indictment was

entered when several witnesses failed to appear. Appellant's

attorney stated: "That being the circumstances, no, I don't

1
Appellant was born on September 16, 1976 and was seventeen
years old at the time of the offense. Code § 16.1-241 provides
that "[t]he ages specified in this law refer to the age of the
child at the time of the acts complained of in the petition."

2
[have a problem with the transfer]." Appellant was convicted of

malicious wounding as charged in the second indictment.

At the sentencing hearing on July 17, 1995, appellant moved

to set aside the verdict, arguing that, when the Commonwealth

nolle prossed the first indictment, the prosecution of appellant

on the charge of malicious wounding terminated. Appellant

asserted that, because of her status as a juvenile, any further

proceedings had to begin with the filing of a second petition in

the juvenile and domestic relations district court, and a second

transfer hearing should have been conducted. The circuit court

denied appellant's motion and found that the jurisdictional

requirements were satisfied. The court sentenced appellant to

twenty years in the state penitentiary, with fifteen years

suspended for twenty years.
EFFECT OF NOLLE PROSEQUI ON JURISDICTION

Appellant argues that the circuit court erred in exercising

jurisdiction over her after the Commonwealth nolle prossed the

initial indictment. She contends that, to reinstitute criminal

proceedings against her, the Commonwealth was required to file a

new petition in the juvenile and domestic relations district

court, and the court was required to conduct a new transfer

hearing.

The effect of a nolle prosequi of an indictment on the

jurisdiction of the circuit court over a juvenile who has been

transferred for trial as an adult is an issue of first impression

3
in the Commonwealth. In light of the specific statutory

procedures applicable to the prosecution of a juvenile for a

crime and the jurisdictional prerequisite of a valid juvenile

transfer hearing, we hold that a nolle prosequi terminates the

prosecution of a juvenile and that the only way to initiate a new

prosecution is to file a second petition in the juvenile and

domestic relations district court. 2

2
At the time of the proceedings in this case, Code
§ 16.1-269 provided the procedures for juvenile transfer. Code
§ 16.1-269 was repealed in 1994 and replaced by Code
§§ 16.1-269.1 to 16.1-269.6. Code § 16.1-269.6(C) provides, in
pertinent part, as follows:

The circuit court order advising the
attorney for the Commonwealth that he may
seek an indictment shall divest the juvenile
court of its jurisdiction over the case as
well as the juvenile court's jurisdiction
over any other allegations of delinquency
arising from the same act, transaction or
scheme giving rise to the charge for which
the juvenile has been transferred. In
addition, upon conviction of the juvenile
following transfer and trial as an adult, the
circuit court shall issue an order
terminating the juvenile court's jurisdiction
over that juvenile with respect to any future
criminal acts alleged to have been committed
by such juvenile and with respect to any
pending allegations of delinquency which have
not been disposed of by the juvenile court at
the time of the criminal conviction.

(Emphasis added). Under the new statute, the juvenile and
domestic relations district court loses jurisdiction for all time
over a juvenile defendant when the Commonwealth is authorized by
the circuit court to seek an indictment. Thus, if the
Commonwealth enters a nolle prosequi of that indictment, the
circuit court retains jurisdiction over the juvenile.
Accordingly, our decision in this case only applies to a case in
which Code § 16.1-269 governed the initial transfer hearing.

4
 Considering the effect of a nolle prosequi in the double

jeopardy context, this Court has held that, "'[u]nder Virginia

procedure, a nolle prosequi is a discontinuance which discharges

the accused from liability on the indictment to which the nolle

prosequi is entered.'" Arnold v. Commonwealth, 18 Va. App. 218,

221, 443 S.E.2d 183, 185 (quoting Miller v. Commonwealth, 217 Va.

929, 935, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016

(1978)), aff'd en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994).

When the trial court enters a nolle prosequi of an indictment, it

lays "to rest that indictment and the underlying warrant without

disposition, as though they had never existed." Arnold, 18 Va.

App. at 222, 443 S.E.2d at 185 (emphasis added). To reinstitute

criminal proceedings against an adult defendant after an

indictment has been nolle prossed, the Commonwealth may seek a

"new indictment[, which] is a new charge, distinct from the

original charge or indictment." Id. at 221, 443 S.E.2d at 185.

After a nolle prosequi of an indictment, the slate is wiped

clean, and the situation is the same as if "the Commonwealth

[had] chosen to make no charge." Id. at 222, 443 S.E.2d at 185.

Thus, whether a defendant is an adult or a juvenile, the

Commonwealth must comply with statutory procedures for initiating

criminal proceedings when it seeks to reinstitute prosecution of

the defendant after a nolle prosequi of an earlier indictment.

When the Commonwealth seeks to prosecute an adult for a

felony, it has several options how to proceed, including direct

5
indictment, presentment, information, or arrest warrant followed

by a preliminary hearing. See Code §§ 19.2-217, -218. An adult

defendant charged with a crime is not always entitled to a

preliminary hearing. Payne v. Warden of the Powhatan

Correctional Ctr., 223 Va. 180, 184, 285 S.E.2d 886, 888 (1982).

"'The primary purpose of a preliminary hearing is to ascertain

whether there is reasonable ground to believe that a crime has

been committed and the person charged is the one who has

committed it.'" Id. at 183, 285 S.E.2d at 888 (quoting Webb v.

Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 28 (1963)). See

also Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190

(1977) ("The preliminary hearing is essentially a screening

process. Its primary purpose is to determine whether there is

'sufficient cause' for charging the accused with the crime

alleged . . . ."). "[W]here an adult accused is directly

indicted by a grand jury, without having been previously arrested

and charged, the jurisdiction of the circuit court is thereby

invoked, and no preliminary hearing is required, even though the
victim of the crime involved may be a juvenile." Payne, 223 Va.

at 184, 285 S.E.2d at 888 (emphasis added). 3
3
Cf. Jones v. Commonwealth, 220 Va. 666, 670-72, 261 S.E.2d
538, 540-41 (1980) (holding that a preliminary hearing in the
juvenile and domestic relations district court is a prerequisite
to the circuit court acquiring jurisdiction over an adult charged
with a crime against a juvenile victim). In Payne, the Supreme
Court distinguished Jones and noted that, in Jones, "[t]here was
no occasion for [it] to consider or decide what would have been
Jones' status had he been indicted directly by a grand jury."
223 Va. at 183, 285 S.E.2d at 887.

6
 However, the juvenile and domestic relations district courts

have exclusive, original jurisdiction over criminal offenses

alleged to have been committed by a juvenile. Code

§ 16.1-241(A)(1); Peyton v. French, 207 Va. 73, 79, 147 S.E.2d

739, 743 (1966). "All matters alleged to be within the

jurisdiction of the court[, including the prosecution of a

juvenile for a criminal offense,] shall be commenced by the

filing of a petition" in the juvenile and domestic relations

district court. Code § 16.1-260(A) (emphasis added). Thus, the

sole avenue available to prosecute a juvenile defendant charged

with a criminal offense begins with the Commonwealth filing a

petition in the juvenile and domestic relations district court.

No statute allows the Commonwealth to directly indict a juvenile

for a criminal offense; process must be initiated by filing an

appropriate petition in the juvenile and domestic relations

district court.
Additionally, the juvenile and domestic relations district

court must conduct a transfer hearing before the circuit court

may obtain jurisdiction over a juvenile alleged to have committed

a criminal offense. Peyton, 207 Va. at 79-80, 147 S.E.2d at 743.

"The legislative purpose of Code § 16.1-241 is to afford

juvenile defendants . . . the protection and expertise of the

juvenile court during the preliminary, or certification, hearing

stage of a criminal prosecution. . . . Juvenile courts are

staffed with trained personnel who have the necessary expertise

7
to deal with juveniles." Payne, 223 Va. at 184, 285 S.E.2d at

888. Additionally, "[a] hearing held under the Juvenile and

Domestic Relations Court Law is not as limited in its scope as a

preliminary hearing under the criminal procedures applicable to

an adult." Peyton, 207 Va. at 78, 147 S.E.2d at 742. Code

§ 16.1-269(A), in effect at the time of appellant's juvenile

transfer hearing, 4 provided the conditions for juvenile transfer
4
As noted, Code § 16.1-269 was repealed in 1994. Code
§ 16.1-269.1(A) sets forth the conditions for transferring a
juvenile to the circuit court as follows:
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
following conditions:
1. Notice as prescribed in §§ 16.1-263
and 16.1-264 shall be given to the juvenile
and his parent, guardian, legal custodian or
other person standing in loco parentis; or
attorney;
2. The 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;
3. The juvenile is competent to stand
trial. The juvenile is presumed to be
competent and the burden is on the party
alleging the juvenile is not competent to
rebut the presumption by a preponderance of
the evidence; and
4. Except as provided in subsection B,
the court finds by a preponderance of the

8
as follows:
If a child fifteen years of age or older
is charged with an offense which, if
committed by an adult, could be punishable by
confinement in a state correctional facility,
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 child
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
following conditions:
1. The child was fifteen or more years
of age at the time of the alleged commission
of the offense.
2. Notice as prescribed in §§ 16.1-263
and 16.1-264 shall be given to the child and
his parent, guardian, legal custodian or
other person standing in loco parentis or
attorney.
3. The court finds:
a. There is probable cause to
believe that the child committed the
delinquent act as alleged or a lesser
included delinquent act which would be a
felony if committed by an adult;
b. The child is not, in the opinion
of the court, amenable to treatment or
rehabilitation as a juvenile through
available facilities, considering the
nature of the present offense or such
factors as the nature of the child's
prior delinquency record, the nature of
past treatment efforts and the nature of
the child's response to past treatment
efforts; provided, however, when the
alleged delinquent act is armed robbery,
rape as provided in § 18.2-61 or murder,
or when the child has previously been
tried as an adult and convicted of a
felony and is presently alleged to have
committed an act which would be a felony
(..continued)
evidence that the juvenile is not a proper
person to remain within the jurisdiction of
the juvenile court.

9
 if committed by an adult, the court may
certify the child without making the
finding required by this subdivision;
c. The child is competent to stand
trial. The child is presumed to be
competent and the burden is on the party
alleging the child is incompetent to
rebut the presumption by a preponderance
of the evidence; and
d. The interests of the community
require that the child be placed under
legal restraint or discipline.

(Emphasis added). One of the primary purposes of the transfer

hearing is to determine whether, at the time of the transfer

hearing, a juvenile is amenable to treatment as a juvenile and a

proper person to remain within the jurisdiction of the juvenile

court, in addition to a determination of probable cause to

believe that the juvenile has committed a delinquent act. At a

juvenile transfer hearing, the court hears evidence of the

current status of the juvenile, including the juvenile's age, the

alleged offenses, and the record and history of the juvenile.

Thus, in a subsequent transfer hearing after the nolle prosequi

of an indictment, the juvenile may be more or less amenable to

treatment as a juvenile than at the time of an earlier

certification hearing.
We hold that the jurisdiction of the circuit court in this

case was dependent upon a proper transfer hearing being conducted

in accordance with Code § 16.1-269 and upon the juvenile and

domestic relations district court making the findings required by

that section. See Peyton, 207 Va. at 80, 147 S.E.2d at 743

(holding that a preliminary hearing in the juvenile and domestic

10
relations district court is jurisdictional); Matthews v.

Commonwealth, 216 Va. 358, 361, 218 S.E.2d 538, 541 (1975)

(holding that "the findings required by the transfer statute are

jurisdictional"). In Peyton, the Supreme Court addressed the

jurisdictional effect of both the petition and the transfer

hearing in cases involving juvenile defendants and stated as

follows:
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 16.1-269.1] be complied with. Indeed the
very language of the statutes makes it
mandatory that . . . [they] be followed
before criminal jurisdiction in a proper
court of record comes into being.

207 Va. at 79, 147 S.E.2d at 743 (emphasis added). Thus, if the

juvenile and domestic relations district court fails to hold a

transfer hearing or to make the required findings, then the

circuit court proceedings against a juvenile are void for lack of

jurisdiction to try him or her as an adult. Peyton, 207 Va. at

80, 147 S.E.2d at 743; Matthews, 216 Va. at 359, 218 S.E.2d at

540.

In the instant case, when the Commonwealth nolle prossed the

initial indictment against appellant, the charge against

11
appellant for malicious wounding was terminated. See Arnold, 18

Va. App. at 221, 443 S.E.2d at 185. At that point in time, if

appellant were an adult, the Commonwealth would have had the

option of seeking a direct indictment. However, to proceed

against appellant, a juvenile, on a new charge of malicious

wounding, at the time of appellant's proceedings, the

Commonwealth was required to file a second petition in the

juvenile and domestic relations district court. The court was

required to follow the statutory requirements by conducting a

transfer hearing in accordance with Code § 16.1-269 and making

the findings required by that section based on the circumstances

as they existed at that time. Because no second petition was

filed or transfer hearing conducted, the circuit court erred in

exercising jurisdiction over appellant, and the proceedings

before the circuit court are void for lack of jurisdiction.
The Commonwealth argues that the transfer hearing conducted

under Code § 16.1-269 is the equivalent of a preliminary hearing

for an adult and that, once a juvenile is certified for trial as

an adult, the Commonwealth may proceed against her by direct

indictment in the same manner as against an adult defendant by

direct indictment. However, the Commonwealth's argument is

without merit in light of the jurisdictional effect of a juvenile
5
transfer hearing. See Peyton, 207 Va. at 80, 147 S.E.2d at 743.
5
But see Code § 16.1-269.6(C) (providing that the juvenile
and domestic relations district court's jurisdiction over a
juvenile ends when the Commonwealth is authorized to seek an
indictment).

12
 The Commonwealth also contends that, under former Code

§ 16.1-269(E), the juvenile and domestic relations district

court's jurisdiction "terminated" when the grand jury returned an

indictment against appellant. Code § 16.1-269(E), in effect at

the time of the transfer hearing in this case, provided, in

pertinent part, as follows:
The circuit court shall, within a reasonable
period of time after receipt of the case from
the juvenile court, . . . enter an order
either remanding the case to the juvenile
court or advising the attorney for the
Commonwealth that he may seek an indictment.
If the grand jury returns a true bill upon
such indictment the jurisdiction of the
juvenile court as to such case shall
terminate.

(Emphasis added). However, this argument fails to take into

account the effect of entering a nolle prosequi of an indictment.

When the Commonwealth nolle prossed the initial indictment

against appellant, it discontinued the prosecution of appellant

on that indictment, as though the indictment had never existed.
See Arnold, 18 Va. App. at 222, 443 S.E.2d at 185. Thus,

although the juvenile and domestic relations district court lost

jurisdiction when the grand jury indicted appellant, the circuit

court's jurisdiction as to such case was terminated when the

Commonwealth nolle prossed the indictment. At that point, the

juvenile and domestic relations district court again was the only

forum with jurisdiction over appellant for any charges arising

prior to her eighteenth birthday.

13
 WAIVER OF JURISDICTION

Lastly, the Commonwealth asserts that appellant waived the

jurisdictional issue by failing to object to the jurisdiction of

the circuit court before arraignment on the second indictment.

Code § 16.1-269.6(E) provides that "[a]ny objection to the

jurisdiction of the circuit court pursuant to this article shall

be waived if not made before arraignment." However, this section

assumes that the Commonwealth initiated the proceeding in

accordance with Code § 16.1-260(A) by filing a petition in the

juvenile and domestic relations district court and that a valid

transfer hearing was conducted in accordance with Code
§ 16.1-269.1. Code § 16.1-269.6(E) simply provides that any

further challenge to the jurisdiction of the circuit court after

the proper initiation of prosecution by petition and the holding

of a valid transfer hearing must be made before arraignment. The

"objections" contemplated by Code § 16.1-269.6(E) are arguments

concerning deficiencies in the transfer process involving a

particular juvenile. We agree with appellant's contention that

the circuit court never acquired jurisdiction because no petition

was filed or transfer hearing was held, not that the transfer

process was defective.

The Commonwealth's waiver argument fails to take into

account the well-established principle that "the lack of subject

matter jurisdiction can be raised at any time in the proceedings,

even for the first time on appeal by the court sua sponte."

14
Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756 (1990)

(emphasis added). No party can "waive a subject matter

jurisdictional requirement." Pope v. Commonwealth, 19 Va. App.

130, 133, 449 S.E.2d 269, 270 (1994) (holding that the general

district court acted in the absence of jurisdiction by certifying

an adult defendant for trial in the circuit court when the victim

was a family member). Additionally, "'a void decree or order is

a nullity and may on proper application be vacated at any time.'"
Matthews, 216 Va. at 359, 218 S.E.2d at 540 (emphasis added)

(quoting Cofer v. Cofer, 205 Va. 834, 837, 140 S.E.2d 663, 665-66

(1965)). Thus, appellant's failure to object to the circuit

court's exercise of jurisdiction before arraignment cannot

constitute a waiver of jurisdiction.

Accordingly, we reverse the decision of the trial court and

vacate appellant's conviction. Under Code § 16.1-241, the

juvenile and domestic relations district court retains

jurisdiction of appellant because the "ages specified in this law

refer to the age of the child at the time of the acts complained

of in the petition." Therefore, the case is remanded to the

circuit court with instruction to remand the matter to the

juvenile and domestic relations district court for further

proceedings if the Commonwealth be so advised.6

Reversed and remanded.

____________________
6Code § 16.1-269.1 was amended in 1996. The new version of
Code § 16.1-269.1 provides, in pertinent part, as follows:

15
 A. Except as provided in subsections B
and C, if a juvenile fourteen years of age or
older at the time of an alleged offense 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
following conditions:
1. Notice as prescribed in §§ 16.1-263
and 16.1-264 shall be given to the juvenile
and his parent, guardian, legal custodian or
other person standing in loco parentis; or
attorney;
2. The 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;
3. The juvenile is competent to stand
trial. The juvenile is presumed to be
competent and the burden is on the party
alleging the juvenile is not competent to
rebut the presumption by a preponderance of
the evidence; and
4. The court finds by a preponderance of
the evidence that the juvenile is not a
proper person to remain within the
jurisdiction of the juvenile court. . . .

* * * * * * *

C. The juvenile court shall conduct a
preliminary hearing whenever a juvenile
fourteen years of age or older is charged
with . . . malicious wounding in violation of
§ 18.2-51, . . . provided the attorney
for the Commonwealth gives written notice of
his intent to proceed pursuant to this
subsection at least seven days prior to the
preliminary hearing. If the attorney for the
Commonwealth elects not to give such notice,
or if he elects to withdraw the notice prior
to certification of the charge to the grand
jury, he may proceed as provided in

16
 subsection A.
D. Upon a finding of probable cause
pursuant to a preliminary hearing under
subsection B or C, the juvenile court shall
certify the charge, and all ancillary
charges, to the grand jury. Such
certification shall divest the juvenile court
of jurisdiction as to the charge and any
ancillary charges.
If the court does not find probable
cause to believe that the juvenile has
committed the violent juvenile felony as
charged in the petition or warrant or if the
petition or warrant is terminated by
dismissal in the juvenile court, the attorney
for the Commonwealth may seek a direct
indictment in the circuit court. If the
petition or warrant is terminated by nolle
prosequi in the juvenile court, the attorney
for the Commonwealth may seek an indictment
only after a preliminary hearing in juvenile
court.
* * * * * * *

E. An 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. If an
indictment is terminated by nolle prosequi,
the Commonwealth may reinstate the proceeding
by seeking a subsequent indictment.

(Emphasis added).

17