Andre Vashawn Carter, a/k/a Dre v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: January 27, 2000
• Docket: 0076981
• Status: Published

Opinion

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

-2- 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, -3- 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 -4- 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). -5-