            IN THE SUPREME COURT OF TENNESSEE

                         AT NASHVILLE             FILED
STATE OF TENNESSEE,          )                   February 7, 2000
                                     FOR PUBLICATION
                             )
      APPELLEE,              )                   Cecil Crowson, Jr.
                                     FILED: FEBRUARY 7, 2000
                             )                  Appellate Court Clerk
v.                           )       ROBERTSON CIRCUIT
                             )
CHARLES DAMIEN DARDEN,       )       HON. ROBERT W. WEDEMEYER
                             )
      APPELLANT.             )       NO. M1996-00044-SC-R11-CD



For the Appellant                               For the Appellee

Jerome M. Converse                              Paul G. Summers
Springfield, Tennessee                          Attorney General & Reporter

                                                Michael E. Moore
                                                Solicitor General

                                                Daryl J. Brand
                                                Associate Solicitor General




                                  OPINION




AFFIRMED                                                            BARKER, J.
                                 INTRODUCTION




                                      1
       We granted this appeal to decide (1) whether the circuit court had jurisdiction

over criminal charges that were not addressed in juvenile court during the transfer

hearing; and (2) whether the amendment to Tennessee Code Annotated section 37-1-
159(d) (Supp. 1999), generally eliminating the requirement for an acceptance hearing,

is unconstitutional. After examining the record and considering the arguments of the

parties and applicable law, we conclude that the circuit court properly exercised
jurisdiction over the criminal charges transferred from juvenile court as well as over the

additional charges found in the grand jury’s indictment. In addition, we conclude that

the General Assembly did not act unconstitutionally in eliminating the requirement for
an acceptance hearing. Accordingly, for the reasons herein, we affirm the Court of

Criminal Appeals.



                                     BACKGROUND



       Charles Damien Darden, the defendant, drove a vehicle from which a

passenger shot and killed Michael Westerman on January 14, 1995. The defendant,

who was seventeen years old at the time of the shooting, was charged in juvenile

court with first degree murder under Tennessee Code Annotated section 39-13-202

(1991 & Supp. 1996). At a transfer hearing, the juvenile court found reasonable

grounds to believe that the defendant committed the delinquent act of first degree
murder in violation of section -202, that the defendant was not committable to a

mental institution, and that the community’s best interests required placing the

defendant under legal restraint. Consequently, the juvenile court transferred the
defendant to the sheriff of Robertson County to be tried as an adult.



       Following the transfer, a grand jury indicted the defendant on two counts of first
degree murder: premeditated murder under section -202(a)(1) and felony murder

under section -202(a)(2). Further, the grand jury indicted the defendant for civil rights

intimidation and attempted aggravated kidnapping. The defendant filed a motion to

dismiss the counts of first degree felony murder, attempted aggravated kidnapping,
and civil rights intimidation arguing that the circuit court lacked jurisdiction over

charges not addressed in the transfer hearing. In addition, the defendant filed another

                                              2
motion to dismiss all counts of the indictment contending that he was deprived of

rights under article I, section 8 of the Tennessee Constitution and the Fourteenth

Amendment to the United States Constitution because the circuit court did not hold an
acceptance hearing. Prior to trial in the Robertson County Circuit Court, the State

moved to enter a nolle prosequi on the count of first degree premeditated murder.

The court granted the State’s motion and entered a judgment of not guilty on that
charge. The court, however, denied the defendant’s two motions to dismiss.

Following a bench trial, the court found the defendant guilty on all three remaining

counts and entered a life sentence for first degree felony murder which was to be
served consecutively to a three-year sentence for civil rights intimidation and a four-

year sentence for attempted aggravated kidnapping, which were to be served

concurrently.


                                      DISCUSSION



A. Circuit Court’s Jurisdiction



       The defendant first contends that the circuit court did not have jurisdiction over

the civil rights intimidation, attempted aggravated kidnapping, and first degree felony

murder charges. The defendant reaches this conclusion by relying on Tennessee
Code Annotated section 37-1-134(e) (Supp. 1999) (“the transfer statute”), which

provides that “[n]o child . . . shall be prosecuted for an offense previously committed

unless the case has been transferred as provided in subsection (a).” Thus, the circuit
court’s jurisdiction over the disputed charges depends on whether the transfer from

juvenile court complied with the requirements of subsection (a). See id. § 37-1-134(a).



       The defendant asserts that the juvenile court could not have effectively

transferred its jurisdiction over the charges of civil rights intimidation, attempted

aggravated kidnapping, and felony murder because the juvenile court made no

findings pursuant to subsection (a) that there were reasonable grounds to believe that
the defendant committed these delinquent acts. According to the defendant, the

circuit court’s jurisdiction extended only to the charge addressed by the juvenile court

                                             3
during the transfer hearing, i.e., the charge of first degree premeditated murder.

Consequently, when the State dismissed the charge of premeditated murder, the

defendant contends that the circuit court lost jurisdiction, which then properly rested
with the juvenile court.



         Before a juvenile may be tried as an adult in a criminal or circuit court, a
juvenile court must conduct a transfer hearing and must find, among other things,

reasonable grounds to believe that “[t]he child committed the delinquent act as

alleged.” Tenn. Code Ann. § 37-1-134(a)(4)(A) (Supp. 1999). At the transfer hearing
in this case, the juvenile court found reasonable grounds to believe that the defendant

committed the alleged delinquent act, i.e., first degree murder. Having thus complied

with the statutory requirements,1 the juvenile court properly transferred the defendant
to the sheriff of Robertson County to be held according to law and to be tried as an

adult.



         Following an effective transfer, jurisdiction over the case is vested in the

criminal or circuit court. See id. § 37-1-134(c). The transfer statute provides that the

juvenile court’s jurisdiction is terminated “with respect to any and all delinquent acts

with which the child may then or thereafter be charged, and the child shall thereafter

be dealt with as an adult as to all pending and subsequent criminal charges.” Id.

(emphasis added). The emphasized language clearly contemplates that following the

transfer hearing and the termination of the juvenile court’s jurisdiction, a defendant

may be charged in an adult court with other criminal offenses. The State obtained a
grand jury indictment charging the defendant with two counts of first degree murder

and one count each of civil rights intimidation and attempted aggravated kidnapping.

Both of the first degree murder counts are within the scope of the juvenile court’s
transfer order, and the new charges are appropriately characterized under the transfer

statute as “subsequent criminal charges” within the jurisdiction of the circuit court.

Accordingly, we conclude that the circuit court had jurisdiction over each of the counts


    1
        The juvenile court also found that the Defendant was not committable to a mental institution and
that c om mu nity inte rests requ ired th at the Def end ant b e plac ed un der le gal re strain t. Thu s, the juven ile
court made the findings necessary to comply with the transfer statute’s requirements permitting transfer
of the ca se to a cr iminal co urt. See Tenn. Code A nn. § 37-1-134(a)(4) (Supp. 1999 ).

                                                           4
of first degree murder and the counts alleging civil rights intimidation and attempted

aggravated kidnapping.



        Having determined that following the transfer from juvenile court, the circuit

court had jurisdiction over all counts charged in the grand jury indictment, we turn our

attention to the defendant’s contention that the circuit court lost its jurisdiction upon
dismissal of the charge of first degree premeditated murder. The transfer statute does

restore the juvenile court’s jurisdiction if “a child transferred pursuant to [the transfer

statute] is acquitted in circuit court on the charge or charges resulting in such transfer,
or if such charge or charges are dismissed in such court.” Id. Accordingly, we must

look to the charge or charges that resulted in the transfer to circuit court to determine

whether the juvenile court’s jurisdiction was restored.


        The charge resulting in transfer to the circuit court was a charge of first degree

murder. However, neither the juvenile court’s findings at the transfer hearing nor the

juvenile court’s order of transfer distinguished between Tennessee Code Annotated

section 39-13-202(a)(1) (1991), which proscribed premeditated murder, or section -

202(a)(2), which proscribed felony murder. The charge was only that of first degree

murder. As such, both counts of first degree murder in the grand jury indictment are

within the scope of this charge. See, e.g., Carter v. State, 958 S.W.2d 620, 624-25

(Tenn. 1997) (holding both premeditated murder and felony murder are simply

alternate means of committing the single crime of first degree murder).2 While a

judgment of not guilty was entered as to premeditated murder as a result of the nolle
prosequi, the defendant was found guilty of felony murder--a charge that resulted in

the transfer to circuit court. Acquittal or dismissal of the charges resulting in the

transfer is the predicate for the restoration of the juvenile court’s jurisdiction. Because
that predicate was not met, the circuit court properly retained jurisdiction. Therefore,

we affirm the holding of the Court of Criminal Appeals that the Robertson County

Circuit Court properly exercised jurisdiction in this case.

   2
       See also Schad v. Arizona, 501 U.S. 624, 640-41 (1991) (concluding that most first degree murder
statutes retain premeditated murder and felony murder as alternative means of satisfying the mental
state req uirem ent); Strouth v . State, 999 S.W .2d 759, 768 (Tenn. 1999 ) (Holder, J., concurring) (“A
defendant is not denied due process when charged under one theory of first degree murder but
convicted under a different theory.”).

                                                   5
B. Constitutionality of Tennessee Code Annotated section 37-1-159(d)



       The defendant next attacks the constitutionality of Tennessee Code Annotated
section 37-1-159(d) (1996) which generally eliminates the need for an acceptance

hearing. Prior to 1994, section -159(d) provided that a “criminal court, upon motion of

the child filed within ten (10) days of the juvenile court order . . . shall hold a hearing
as expeditiously as possible to determine whether it will accept jurisdiction over the

child.” Tenn. Code Ann. § 37-1-159(d) (1991). In 1994, the General Assembly

amended section -159(d) to provide for an acceptance hearing in circuit court “[i]f and
only if a nonlawyer judge presides at the transfer hearing in juvenile court.” Tenn.

Code Ann. § 37-1-159(d) (1996). According to the defendant, this amendment

deprived him of a right to immediate review of the transfer decision and constitutes a
denial of due process in violation of article 1, section 8 of the Tennessee Constitution

and the Fourteenth Amendment to the United States Constitution. We disagree.



       We have, in the past, recognized that some aspects of the juvenile transfer

process are so fundamental that their denial may amount to constitutional violations.

For example, article I, section 8 of the Tennessee Constitution guarantees to a

juvenile the right to have a lawyer judge preside over the transfer hearing. See State

ex rel. Anglin v. Mitchell, 575 S.W .2d 284, 289 (Tenn. 1979). In addition, we have
concluded that a juvenile’s right to a valid transfer order “is sufficiently fundamental to

be considered a matter of due process.” Sawyers v. State, 814 S.W.2d 725, 729

(Tenn. 1991). We have not, however, held that a juvenile’s right to an acceptance
hearing is a protected right. Indeed, the defendant has cited no authority for this

proposition, and our research has uncovered no such authority.



       While a statute may give rise to rights protected by article I, section 8 of the

Tennessee Constitution and the Due Process Clause of the Fourteenth Amendment to

the United States Constitution, the rights are not perpetual but exist only as long as

the General Assembly retains the language affording the right. Compare Toussaint v.

McCarthy, 801 F.2d 1080, 1092 (9th Cir. 1986) (“A state-created liberty interest exists

only as long as the statute or regulation creating it remains effective. If the state

                                              6
repeals the statute or eliminates the regulation, the liberty interest ceases to exist.”).

The General Assembly may enact statutes that afford such rights, but the General

Assembly is also free to amend these statutes, even where the amendment eliminates
the formerly protected interests. 3


         We conclude, therefore, that the General Assembly’s amendment of section -
159(d) did not violate article I, section 8 of the Tennessee Constitution or the

Fourteenth Amendment to the United States Constitution. The amendment, once

effective, extinguished any due process or law of the land interests a juvenile might
have had in an acceptance hearing. Because the delinquent acts and crimes with

which the defendant was charged occurred after the amendment of section -159(d),

the defendant was not unconstitutionally deprived of any right he might have had to an
acceptance hearing.



                                                CONCLUSION



         We conclude that the circuit court had jurisdiction over all charges presented in

the grand jury indictment: first degree premeditated murder, first degree felony

murder, civil rights intimidation, and attempted aggravated kidnapping. We also

conclude that the amendment of Tennessee Code Annotated section 37-1-159(d)
(1996), generally eliminating acceptance hearings, does not violate article I, section 8

of the Tennessee Constitution or the Fourteenth Amendment to the United States

Constitution. Accordingly, we affirm the judgments of the circuit court and the Court of
Criminal Appeals.




    3
        For example, in Maye s v. T ram me ll, 751 F.2d 175, 179 (6th Cir. 1984), the Sixth Circuit Court of
Appeals determined that Tennessee’s parole scheme created a liberty entitlement protected by the Due
Proc ess Clau se of the F ourte enth Am end me nt to th e Un ited S tates Con stitutio n. Th e cou rt larg ely
based its decision on Rule 1100-1-1-.06 of the Rules of Tennessee Board of Parole which provided that
“eac h res ident who is eligib le for p arole is a wo rthy ca ndida te an d thu s the Boa rd pre sum es th at he will
be released on parole when he is first eligible.” Id. at 17 8 (qu oting Ten nes see Boa rd of Paro le Ru le
1100-1-1-.06). The Board of Parole responded by amending the Rule to eliminate the presumption of
paro le rele ase . The Sixth Circ uit Co urt of App eals then reex am ined T enn ess ee’s paro le sch em e in
another case and concluded that the amendment eliminated the Rule’s former constitutionally protected
liberty interest. See W right v . Tra mm ell, 810 F.2d 589, 590-91 (6th Cir. 1987) (per curiam). A similar
result is appropriate here. Like the parole release scheme, any due process interest in the acceptance
hearing was extinguished with the elimination of the statutory language providing for such hearings.

                                                          7
                                      __________________________
                                      WILLIAM M. BARKER, JUSTICE


CONCUR:
ANDERSON, C.J.
DROWOTA, BIRCH, AND HOLDER, JJ.




                                  8
