Winston v. Com.
| Citation | 497 S.E.2d 141,26 Va.App. 746 |
| Decision Date | 17 March 1998 |
| Docket Number | No. 0373-97-2,0373-97-2 |
| Court | Court of Appeals of Virginia |
| Parties | Jamal Shagun WINSTON, a/k/a Jamal Shaquan Winston v. COMMONWEALTH of Virginia. Record |
Maureen L. White, Richmond, for appellant.
John H. McLees, Jr., Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
Present: FITZPATRICK, C.J., and ELDER and OVERTON, JJ.
Jamal S. Winston ("appellant") appeals his convictions of possession of cocaine in violation of Code § 18.2-250, possession of a firearm while simultaneously possessing cocaine in violation of Code § 18.2-308.4, carrying a concealed weapon in violation of Code § 18.2-308, and grand larceny. He contends the trial court erred when it denied his motion to set aside his convictions for lack of subject matter jurisdiction. He also contends the evidence was insufficient to support his convictions of carrying a concealed weapon and of grand larceny. For the reasons that follow, we affirm.
Appellant was charged with committing five crimes: grand larceny of an automobile, possession of cocaine, possession of a firearm while in possession of cocaine, carrying a concealed weapon, and possession of tools with intent to commit larceny. All of these crimes were allegedly committed on January 31, 1996. The proceedings against appellant were not initiated in a juvenile and domestic relations district court. Appellant was tried by the circuit court ("trial court") on April 24, 1996. During appellant's arraignment, the trial court asked appellant to state his name, age, and his date of birth. Appellant replied that his name was "Jamal Shagun Winston," that he was nineteen years old, and that he was born on August 6, 1976.
At the conclusion of the Commonwealth's case and again after resting without presenting evidence, appellant moved to strike three of the charges against him: grand larceny, carrying a concealed weapon, and possession of tools with the intent to commit larceny. The trial court denied appellant's motions with respect to the charges of grand larceny and carrying a concealed weapon, but granted appellant's motion to strike regarding the charge of possession of tools with intent to commit larceny. Following appellant's motions to strike, the trial court convicted appellant of the remaining four charges against him.
Appellant subsequently filed a timely notice of appeal and a timely petition for appeal. On November 5, 1996, appellant filed a motion in this Court to set aside his convictions for lack of subject matter jurisdiction. On November 20, 1996, this Court remanded appellant's convictions to the trial court "for factual findings regarding appellant's age at the time of the alleged offense and disposition as appropriate."
On December 16, 1996 and January 17, 1997, the trial court held hearings to receive evidence regarding appellant's age. Following the hearings, the trial court denied appellant's motion to set aside the verdicts for lack of subject matter jurisdiction. The trial court made two findings. The trial court first found that appellant's age "cannot be determined by the exhibits introduced by [appellant]." Then, relying on the evidence presented by the Commonwealth, it found that both appellant and his mother "held [appellant] out to be an adult [on January 31, 1996] and have produced no evidence to convince this Court otherwise." The trial court also stated that appellant was not "permitted to come before the court and claim a juvenile status so as to benefit from his perjury and his alleged willful misrepresentations as to his age before the court."
Appellant contends the trial court erred when it denied his motion to set aside the convictions for lack of subject matter jurisdiction. He argues the trial court erred when it found that he failed to prove he was a juvenile on the date the offenses were committed. We disagree.
A criminal conviction is void ab initio if it has been entered by a court that did not have subject matter jurisdiction over the charge against the defendant. See Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 893-94 (1947) (); see also Brown v. Commonwealth, 215 Va. 143, 145, 207 S.E.2d 833, 835-36 (1974).
Under Code § 16.1-241(A), the juvenile and domestic relations district courts ("J & DR courts") have "exclusive original jurisdiction" over "all cases, matters and proceedings" involving a juvenile who is alleged to be delinquent. See Burfoot v. Commonwealth, 23 Va.App. 38, 45, 473 S.E.2d 724, 728 (1996). A juvenile is defined by Code § 16.1-228 to be "a person less than eighteen years of age." "Delinquent acts" include "an act designated a crime under the law of this Commonwealth...." Code § 16.1-228 (defining "delinquent act"). The ages specified in the Juvenile and Domestic Relations District Court Law "refer to the age of the child at the time of the acts complained of...." Code § 16.1-241.
Pursuant to Code § 16.1-269.1, a circuit court may obtain jurisdiction to try a juvenile charged with certain criminal offenses after a transfer hearing is held by a J & DR court. The holding of a transfer hearing and the making of the findings required by Code § 16.1-269.1 by a J & DR court are essential prerequisites of the circuit court's exercise of jurisdiction in such cases.
[I]f the [J & DR 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.
Burfoot, 23 Va.App. at 49, 473 S.E.2d at 730 (citing Matthews v. Commonwealth, 216 Va. 358, 359, 218 S.E.2d 538, 540 (1975); Peyton v. French, 207 Va. 73, 80, 147 S.E.2d 739, 743 (1966)).
As with all void judgments, a void criminal conviction may be attacked collaterally or directly in any court at any time. See Humphreys, 186 Va. at 772, 43 S.E.2d at 893; see also Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827 (1981); Broyhill v. Dawson, 168 Va. 321, 326, 191 S.E. 779, 781 (1937).
Jurisdiction of the subject matter can only be acquired by virtue of the Constitution or of some statute. Neither the consent of the parties, nor waiver, nor acquiescence can confer it. Nor can the right to object for want of it be lost by acquiescence, neglect, estoppel or in any other manner.
Humphreys, 186 Va. at 772-73, 43 S.E.2d at 894. 1 Generally, the party asserting that a We hold that the trial court did not err when it denied appellant's motion to set aside the verdicts for lack of subject matter jurisdiction. The trial court's finding that appellant failed to meet his burden of proving he was a juvenile on January 31, 1996, the date the offenses were committed, is supported by credible evidence in the record.
judgment is void for lack of subject matter jurisdiction has the burden of proving that fact. Cf. Shelton v. Sydnor, 126 Va. 625, 633-34, 102 S.E. 83, 86-87 (1920); Carter's Adm'r v. Skillman, 108 Va. 204, 215-16, 60 S.E. 775, 779-80 (1908). In a proceeding to attack a judgment for lack of jurisdiction, " 'the record is never conclusive as to the recital of a jurisdictional fact, and the defendant is always at liberty to show a want of jurisdiction, although the record avers the contrary.' " Slaughter, 222 Va. at 793, 284 S.E.2d at 827-28 (quoting Broyhill, 168 Va. at 327, 191 S.E. at 782). "[T]he jurisdiction of a court, whether general or of limited [26 Va.App. 753] jurisdiction, may be inquired into, although the record of judgment states facts giving it jurisdiction." Broyhill, 168 Va. at 326-27, 191 S.E. at 782 (citations omitted). The party attacking the judgment is not estopped by the contents of the record "from showing[ ] by affirmative proof" that the court that entered the judgment erred when it concluded that jurisdiction was proper. Id. at 327, 191 S.E. at 782 (citations omitted). 2 Thus, if, at the hearing on his motion to set aside the verdicts, appellant met his burden of proving that he was under the age of eighteen on the date the offenses were committed, his convictions are void because the record established that the charges against appellant were not transferred from a J & DR court prior to his trial in circuit court
At the hearing to determine appellant's age on the date the offenses were committed, conflicting evidence was presented. Appellant offered two birth certificates issued by the City of Newark, New Jersey. One certificate stated that "Jaream Tyrell Winston" was born on August 17, 1976; the other certificate stated that "Jameel Shaquan Winston" was born on August 6, 1978. (Emphasis added). Appellant also offered four juvenile petitions and a social history report, all referring to "Jameel Shaquan Winston," which stated that "Jameel's" birthday was August 6, 1978. (Emphasis added). Furthermore, the trial court had the following exchange with appellant at the hearing:
The Commonwealth introduced the testimony of Officers James F. Hannah and Mark Wooten, which established that appellant told them following his arrest on January 31, 1996, that he was born on August 6, 1976 and that he was nineteen years old. In...
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