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CARTER v. COMMONWEALTH (52832)



NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


CARTER

v.

COMMONWEALTH


January 27, 2000.

Record No. 0076-98-4

Circuit Court Nos. CR41111 through CR41114

Andre Vashawn Carter, a/k/a Dre,

Appellant,

v.

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

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, 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 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.

 

FOOTNOTES:

[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
Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).

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