Jones v. Com.
| Decision Date | 27 November 1972 |
| Citation | 213 Va. 425,192 S.E.2d 775 |
| Court | Virginia Supreme Court |
| Parties | Phillip JONES v. COMMONWEALTH of Virginia. |
Claude C. Farmer, Jr., Richmond (Bremner, Byrne & Baber, Richmond, on brief), for plaintiff in error.
Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
The defendant, Phillip Jones, was proceeded against in the court below as a recidivist, having been four times convicted of felonies and sentenced to confinement in the penitentiary. The lower court adjudged that the defendant serve an additional 15 years in the penitentiary, with 7 years of that term suspended. Defendant appeals, alleging that the trial court erred in overruling his motion to dismiss the information filed against him on the ground that one of the convictions, forming the basis of the recidivist charge, was void.
Defendant was arrested in the City of Portsmouth on July 18, 1949 and charged with unlawfully and feloniously breaking and entering a storehouse and dwelling during the nighttime. Thereafter a warrant was issued by the judge of the Juvenile and Domestic Relations Court directing that defendant, who was then 17 years old, be brought before that court to answer the charge. The warrant shows that defendant was examined on July 30, 1949 and 'sent on to the September, 1949 term of the Court of Hustings for the City of Portsmouth'. Jones was subsequently indicted, convicted and sentenced to confinement in the penitentiary for a term of 18 months. He was represented at the trial by a court-appointed attorney.
At the recidivist trial defendant testified on direct examination that his parents were not present at the hearing before the juvenile court in July, 1949, and that no guardian Ad litem was appointed for him at that time. On cross-examination he admitted that he remembered very little about the hearing which occurred some 22 years ago. He recalled that the judge and prosecutor were present, as was the policeman who had arrested him, and 'there was a man there' who claimed defendant broke into his house. Defendant was asked: He answered: Jones acknowledged that counsel was appointed for him at his trial in the Hustings Court, but stated he had never seen the attorney prior to trial. He admitted that counsel could have been present at the juvenile hearing as well, although he couldn't recall the fact.
In Peyton v. French, 207 Va. 73, 147 S.E.2d 739 (1966), the juvenile court failed to appoint a guardian Ad litem to represent the interest of a juvenile offender. We held that such failure was violative of Code § 16.1--173 and was jurisdictional and not procedural, thus rendering void the subsequent proceedings in the court of record. In Pruitt v. Peyton, 209 Va. 532, 165 S.E.2d 288 (1969), and with French as our precedent, we likewise held that the failure to appoint a guardian Ad litem voided the convictions and sentences of the petitioner.
The Commonwealth contends that the burden was upon Jones to prove that his parents had not been served with a summons, and were not present, or that a probation officer or attorney was not appointed as guardian Ad litem to represent the interests of defendant and was not present at the hearing.
Defendant's first trial was had 22 years ago when he was 17 years old. Although he conceded the 'possibility' that the juvenile court could have appointed a lawyer for him at his hearing in the Juvenile and Domestic Relations Court in July, 1949, his testimony was that his parents were not present and that a guardian Ad litem was not appointed for him. Further, and more important here, the warrant upon which Jones was tried and the official records of the court are completely silent as to any notification of...
To continue reading
Request your trial
-
Nelson v. WARDEN OF KEEN MTN. CORRECTIONAL
...Gogley v. Peyton, 208 Va. 679, 160 S.E.2d 746 (1968), Pruitt v. Peyton, 209 Va. 532, 165 S.E.2d 288 (1969), and Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775 (1972), all referring back to Peyton v. As Justice Kinser's dissent in David Moore aptly points out, while we did not specify in......
-
Moore v. Com.
...proceedings void." Id. at 80, 147 S.E.2d at 743 (emphasis added). Moreover, and pertinent to the present appeal, in Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775 (1972), we recognized that there had been various amendments to the notice requirements concerning juvenile court proceeding......
-
Brown v. Cox
...7 See, Ferguson v. Slayton (D.C.Va.1972), 340 F.Supp. 276, 277. 8 This conclusion was recently restated in Jones v. Commonwealth (1972), 213 Va. 425, 192 S.E.2d 775, 777. 9 Cf., Black v. United States (1965), 122 U.S.App.D.C. 393, 355 F.2d 104, 107; In Re Ingram, 15 Md.App. 356, 291 A.2d 10......
-
Moore v. Com.
...mandatory in nature and, thus, are prerequisite to a court's lawful exercise of that jurisdiction. See, e.g., Jones v. Commonwealth, 213 Va. 425, 428, 192 S.E.2d 775, 777 (1972); Gregory v. Peyton, 208 Va. 157, 159-60, 156 S.E.2d 624, 626 (1967); Peyton v. French, 207 Va. 73, 80, 147 S.E.2d......