261 S.E.2d 538 (Va. 1980), 781665, Jones v. Commonwealth

Docket Nº:781665.
Citation:261 S.E.2d 538, 220 Va. 666
Opinion Judge:[10] Carrico
Party Name:Lester Wayne JONES v. COMMONWEALTH of Virginia.
Attorney:[7] Richard G. Poinsett for appellant.
Case Date:January 11, 1980
Court:Supreme Court of Virginia
 
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Page 538

261 S.E.2d 538 (Va. 1980)

220 Va. 666

Lester Wayne JONES

v.

COMMONWEALTH of Virginia.

No. 781665.

Supreme Court of Virginia.

January 11, 1980.

[220 Va. 667] Richard G. Poinsett, Hampton, for appellant.

James E. Kulp, Deputy Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before [220 Va. 666] CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

[220 Va. 667] CARRICO, Justice.

This appeal involves a claim of double jeopardy in a case where felonious offenses were committed by an adult defendant against a juvenile victim. The determinative issue is whether in such a case the requirement of a preliminary hearing is jurisdictional or merely procedural in nature.

The case arose out of an incident occurring December 1, 1977, in which the defendant, Lester Wayne Jones, and an accomplice robbed Joseph Viets at gunpoint. In the course of the encounter, the accomplice shot at Viets. As a result of the incident, the defendant was charged with attempted

Page 539

murder, robbery, and the use of a firearm while committing robbery.

The defendant was given a preliminary hearing on the charges in general district court, criminal division, and held for the grand jury. He was indicted by the grand jury and then tried upon his pleas of not guilty in the circuit court, sitting without a jury.

During presentation of the Commonwealth's evidence at the trial in circuit court, it was disclosed that the victim, Joseph Viets, was only 17 years old at the time the offenses were committed against [220 Va. 668] him. At the conclusion of the Commonwealth's case, the defendant moved to dismiss the indictments on the ground that, because the victim was a juvenile and the preliminary hearing had not been held in juvenile and domestic relations district court, the circuit court was without jurisdiction in the case. The court granted the motion and dismissed the indictments.

The defendant was arrested and charged with the same offenses. This time, he was given a preliminary hearing in juvenile and domestic relations district court. He was certified to the grand jury and reindicted. He then moved the circuit court to dismiss the indictments on the ground that "continued prosecution would constitute double jeopardy." The court denied the motion. In a subsequent trial, the defendant was convicted of all three charges and sentenced to a total of 21 years in the penitentiary, with 12 years suspended.

Pertinent to resolution of the issue involved here are the following provisions of Code § 16.1-241:

"(E)ach juvenile and domestic relations district court shall have . . . exclusive original jurisdiction . . . over all cases, matters and proceedings involving:

". . .

"I. The prosecution and punishment of persons charged with ill-treatment, abuse, abandonment or neglect of children or with any violation of law which causes or tends to cause a child to come within the purview of this law, or with any other offense against the person of a child except murder and manslaughter; provided, however, in such cases of murder or manslaughter where additional charges arise out of the same transaction, the juvenile judge may transfer jurisdiction over those additional charges to the general district court; provided further, that in prosecution for other felonies over which the court shall have jurisdiction, such jurisdiction shall be limited to determining whether or not there is probable cause . . . ."

On appeal, the defendant continues to assert that his initial preliminary hearing was defective under Code § 16.1-241(I) because the victim was a juvenile and the...

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