                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judges Beales and Russell
            Argued by teleconference
PUBLISHED




            SHELTON LEGRAND RIDDICK
                                                                                OPINION BY
            v.     Record No. 1059-19-1                                  JUDGE WESLEY G. RUSSELL, JR.
                                                                                 JUNE 2, 2020
            COMMONWEALTH OF VIRGINIA


                           FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                         Rufus A. Banks, Jr., Judge

                           Kathleen A. Ortiz, Public Defender, for appellant.

                           Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Shelton Legrand Riddick was convicted in the Chesapeake General District Court of

            multiple driving offenses. He appealed those convictions to the Chesapeake Circuit Court, seeking

            a trial de novo. The circuit court, in a subsequent bench trial, convicted Riddick of the following

            offenses: driving under the influence of alcohol, driving with a suspended operator’s license

            third offense, reckless driving (twenty miles per hour over the posted speed limit), refusal to

            submit to a breath test, and having an open container of alcohol in his vehicle. Although he

            raised no such objection in the circuit court, Riddick argues on appeal to this Court that his

            convictions are void because the circuit court “lacked subject matter jurisdiction” when it tried

            him without a jury. Because we conclude that it possessed subject matter jurisdiction, we affirm

            the judgment of the circuit court.
                                           BACKGROUND1

        Having been convicted of multiple offenses in the general district court, Riddick noted an

appeal to the circuit court, seeking a trial de novo on the charges. After Riddick’s appeal had

been docketed in the circuit court, the matter was set to be tried in the circuit court on February

15, 2019.

        On January 31, 2019, the circuit court entered an order continuing the trial from February

15, 2019, to April 16, 2019, because Riddick’s trial counsel was “not available” for a trial on

February 15, 2019.2 The order indicates that Riddick’s attorney moved for the “matter [to] be heard

by the [c]ourt[.]” The order further provides that the “[d]efendant fully understands and agrees that

if these cases are set for trial without a jury and the [d]efendant does not request a jury at least 30

days prior to the trial date set above, then the defendant waives his/her right to trial by jury.”

Riddick’s counsel endorsed the order, indicating “I ask for this[.]”

        Subsequently, the Commonwealth requested a continuance of the April 16, 2019 trial date

because of a scheduling problem with a witness. On February 11, 2019, the circuit court granted the

motion and entered an agreed order continuing the trial to June 20, 2019. As with the prior order,

the February 11, 2019 order indicates that the matter, when tried, “will be heard by the [c]ourt[.]”

The order also again provides that the “[d]efendant fully understands and agrees that if these cases

are set for trial without a jury and the [d]efendant does not request a jury at least 30 days prior to the




        1
          On appeal, Riddick challenges the power of the circuit court to have tried him on the
charges; he does not argue that the evidence adduced in the circuit court failed to establish that
he in fact had committed the offenses. Accordingly, we recite the procedural history that is
relevant to Riddick’s appeal and do not delineate the evidence by which the Commonwealth
proved that he had committed the offenses.
        2
         At the material times in the circuit court, Riddick was represented by retained counsel.
In a June 24, 2019 order, the circuit court appointed the Public Defender to represent Riddick on
appeal to this Court.
                                                -2-
trial date set above, then the defendant waives his/her right to trial by jury.” Riddick’s counsel

endorsed the order, indicating that it was “seen and agreed[.]”

        As scheduled, the circuit court held a bench trial on the charges on June 20, 2019. The

circuit court found Riddick guilty of all charges and imposed sentence on July 16, 2019. At no

point while the matter was pending in the circuit court did Riddick or his counsel object to the

matter being tried without a jury or otherwise indicate that Riddick wanted a jury trial.

        Riddick now appeals. Riddick asserts that the circuit “court erred by trying” him “when it

lacked subject matter jurisdiction.” He reasons that the circuit court lacked subject matter

jurisdiction to try him because the record does not reflect that he “entered a knowing and intelligent

waiver of trial by jury” as required by Article I, § 8 of the Virginia Constitution and

Code § 19.2-258. Acknowledging that he did not raise this argument in the circuit court, Riddick

argues that the matter is properly before us because a lack of subject matter jurisdiction may be

raised at any time. In response, the Commonwealth argues that the circuit court possessed subject

matter jurisdiction, any argument that Riddick may have had is procedurally defaulted, and, in any

event, the record establishes that Riddick consented to a bench trial.

                                             ANALYSIS

                                         I. Standard of review

        Riddick’s jurisdictional challenge raises a question of law that “we review de novo.”

Richardson v. Commonwealth, 67 Va. App. 436, 442 (2017). The basis for Riddick’s

jurisdictional challenge and whether it is properly before us turn on interpretations of the

Virginia Constitution, Code § 19.2-258, and the Rules of the Virginia Supreme Court. As such,

these underlying issues also represent questions of law subject to de novo review. Minor v.

Commonwealth, 66 Va. App. 728, 738 (2016).




                                                  -3-
                                          II. Jury trial right

       Article I, § 8 of the Virginia Constitution provides, in part, that a criminal defendant

“enjoys the right to a speedy and public trial, by an impartial jury of his vicinage, without whose

unanimous consent he cannot be found guilty” and that

               [i]n criminal cases . . . [i]f the accused plead not guilty, he may,
               with his consent and the concurrence of the Commonwealth’s
               Attorney and of the court entered of record, be tried by a smaller
               number of jurors, or waive a jury. In case of such waiver . . . , the
               court shall try the case.[3]

To ensure implementation of the constitutional guarantee, the Supreme Court has adopted Rule

3A:13(b), which provides that, before a circuit court can try an accused without a jury, it must

“determine . . . that the accused’s consent was voluntarily and intelligently given, and his consent

and the concurrence of the court and the Commonwealth’s attorney shall be entered of record.”

       The accused’s right to insist on a jury trial extends to cases involving misdemeanor

convictions that are appealed to circuit court. Code § 16.1-136 provides that, in such cases, “the

accused shall be entitled to trial by a jury in the same manner as if he had been indicted for the

offense in the circuit court.” See also Code § 19.2-258 (providing that “[i]f the accused plead

not guilty . . . the court, in its discretion, with the concurrence of the accused and the attorney for

the Commonwealth, may hear and determine the case without the intervention of a jury”

(emphasis added)).

       Taken together, these provisions establish that a trial by jury was the “default” method

for adjudicating the charges against Riddick in circuit court. Richardson, 67 Va. App. at 442.



       3
         Virginia has recognized the right of a criminal defendant to a jury trial since before the
founding of the United States. The current jury trial provisions found in Article I, § 8 of the
Virginia Constitution can be traced to Section 8 of the Virginia Declaration of Rights, which was
adopted on June 12, 1776. Section 8 provided, in part, “[t]hat in all . . . criminal prosecutions a
man has a right . . . to a speedy trial by an impartial jury of twelve men of his vicinage, without
whose unanimous consent he cannot be found guilty.”
                                                 -4-
The circuit court could deviate from this default method and conduct a bench trial only if

Riddick knowingly and intelligently “consented either to a waiver of his jury trial rights or to a

bench trial,” id. at 447, and such consent, along with the concurrence of the Commonwealth and

the circuit court, was “entered of record,” Cunningham v. Smith, 205 Va. 205, 207 (1964).

                                            III. Jurisdiction

          Jurisdiction has been described as “a word of many, too many, meanings.” Smith v.

Commonwealth, 281 Va. 464, 467 (2011) (quoting Ghameshlouy v. Commonwealth, 279 Va.

379, 388 (2010)). “[I]t encompasses a variety of separate and distinct legal concepts[,]” and, as a

result, “can engender much confusion[.]” Porter v. Commonwealth, 276 Va. 203, 228 (2008).

To resolve both any potential confusion and Riddick’s appeal, we must address the difference

“between two very different but semantically similar concepts: subject matter jurisdiction and,

for lack of a better expression, active jurisdiction.” Cilwa v. Commonwealth, 298 Va. 259, 266

(2019).

                                     A. Subject matter jurisdiction

          Subject matter jurisdiction “refers to a court’s power to adjudicate a class of cases or

controversies[.]” Id. (quoting In re Commonwealth, 278 Va. 1, 11 (2009)). It “is the authority

granted through constitution or statute to adjudicate a class of cases or controversies[.]”

Morrison v. Bestler, 239 Va. 166, 169 (1990). Subject matter jurisdiction “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” subject matter jurisdiction. Pure Presbyterian Church of

Washington v. Grace of God Presbyterian Church, 296 Va. 42, 49 (2018), cert. dismissed, 139

S. Ct. 942 (2019) (quoting Humphreys v. Commonwealth, 186 Va. 765, 772 (1947)).

          Absent subject matter jurisdiction, a “court cannot proceed at all in any cause.” Id. at 50

(quoting Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869)). “Once a court determines that

                                                  -5-
it lacks subject matter jurisdiction, ‘the only function remaining to the court is that of announcing

the fact and dismissing the cause.’” Id. (quoting Ex Parte McCardle, 74 U.S. (7 Wall.) at 514).

Any other order issued by a court that lacks subject matter jurisdiction “is null and void[,]” id.

(quoting Morrison, 239 Va. at 170), and thus, in essence, is “no order at all,” Cilwa, 298 Va. at

266.

         Because a court order entered in the absence of subject matter jurisdiction is void from

the time of its entry, many of the normal rules regarding challenging orders, such as the

contemporaneous objection rule, do not apply. An order entered by a court lacking subject

matter jurisdiction “may be ‘impeached directly or collaterally by all persons, anywhere, at any

time, or in any manner.’” Singh v. Mooney, 261 Va. 48, 52 (2001) (quoting Barnes v. Am.

Fertilizer Co., 144 Va. 692, 705 (1925)). As a result, a challenge asserting a circuit court lacked

subject matter jurisdiction may be raised for the first time on appeal. Pure Presbyterian, 296 Va.

at 50.

                                        B. Active jurisdiction

         Although subject matter jurisdiction is necessary for a court to adjudicate a cause, it is not

sufficient because other jurisdictional elements are also needed to vest a circuit court with “the

authority to adjudicate a particular case upon the merits[.]” Id. at 49. Combined with subject

matter jurisdiction, the presence of these other jurisdictional elements vests a court with what the

Supreme Court has “termed ‘active jurisdiction[.]’” Id. (quoting Farant Inv. Corp. v. Francis,

138 Va. 417, 427 (1924)).

         “‘[A]ctive jurisdiction’—pragmatically called the ‘jurisdiction to err’—involves not the

power of the court but the proper exercise of its authority[.]” Cilwa, 298 Va. at 266 (footnote

omitted) (quoting Farant Inv. Corp., 138 Va. at 427). To have active jurisdiction, a court must

possess

                                                 -6-
               subject matter jurisdiction, which is the authority granted through
               constitution or statute to adjudicate a class of cases or
               controversies; territorial jurisdiction, that is, authority over
               persons, things, or occurrences located in a defined geographic
               area; notice jurisdiction, or effective notice to a party or if the
               proceeding is in rem seizure of a res; and the other conditions of
               fact must exist which are demanded . . . as the prerequisites of the
               authority of the court to proceed to judgment or decree.

Pure Presbyterian, 296 Va. at 49 (internal quotation marks omitted) (quoting Morrison, 239 Va.

at 169).

       Because active jurisdiction goes “not [to] the power of the court but the proper exercise

of its authority[,]” Cilwa, 298 Va. at 266, the normal rules governing challenges to orders apply.

Thus, except for its subject matter jurisdiction element, “[d]efects in active jurisdiction can be

waived[.]” Id. at 270. Accordingly, a claim that a court lacks active jurisdiction cannot be raised

for the first time on appeal and is subject to the contemporaneous objection rule. See Rule 5A:18

(“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection

was stated with reasonable certainty at the time of the ruling[.]”).

                               IV. Riddick’s jurisdictional challenge

       On appeal, Riddick asserts for the first time that the circuit court lacked jurisdiction to try

and convict him, specifically arguing that the “court erred by trying” him “when it lacked subject

matter jurisdiction.” (Emphasis added). Because, as noted above, a challenge asserting a circuit

court lacked subject matter jurisdiction may be raised for the first time on appeal, Pure

Presbyterian, 296 Va. at 50, it does not matter that he failed to raise the argument below.4

Accordingly, we turn to the merits of Riddick’s argument that the circuit court lacked subject

matter jurisdiction.


       4
          Any challenge Riddick may have had based on the circuit court lacking active, as
opposed to subject matter, jurisdiction was waived when he failed to raise a contemporaneous
objection in the circuit court. See Rule 5A:18; Cilwa, 298 Va. at 270 (holding that “[d]efects in
active jurisdiction can be waived”).
                                               -7-
        The subject matter jurisdiction of circuit courts is “entirely prescribed by statute.” Kelley

v. Stamos, 285 Va. 68, 75 (2013). Code § 17.1-513 is the primary grant of subject matter

jurisdiction to the circuit courts. It provides, in part, that circuit courts “shall have appellate

jurisdiction of all cases, civil and criminal, in which an appeal, writ of error or supersedeas may,

as provided by law, be taken to or allowed by such courts, or the judges thereof, from or to the

judgment or proceedings of any inferior tribunal.” In turn, Code § 16.1-132 provides that “[a]ny

person convicted in a district court of an offense not felonious shall have the right . . . to appeal

to the circuit court.” Together, these statutes grant circuit courts subject matter jurisdiction over

appeals of general district court convictions such as the ones at issue here.

        At oral argument in this Court, Riddick acknowledged this statutory reality. When asked

which Virginia court had been given statutory authority to adjudicate appeals of general district

court convictions in criminal and traffic cases, he responded “the circuit court.” He further

acknowledged that Code § 17.1-513 granted the circuit court jurisdiction over his appeal of the

general district court convictions, a jurisdiction that he himself invoked when he noted his appeal

of the general district court convictions to the circuit court.

        The statutory grant of jurisdiction to the circuit court to hear appeals of criminal and

traffic convictions rendered by the general district court is fatal to Riddick’s appeal to this Court.

As noted above, subject matter jurisdiction arises from such statutory grants of authority, Pure

Presbyterian, 296 Va. at 49; Morrison, 239 Va. at 169, and thus, no amount of argument by

Riddick can alter the fact that the circuit court possessed subject matter jurisdiction in this




                                                  -8-
matter.5 Waivable procedural errors affecting a court’s active jurisdiction do not divest the court

of its subject matter jurisdiction. Thus, even assuming the circuit court erred in conducting a

bench trial, it could not and did not err in the manner asserted by Riddick, i.e., conducting a

proceeding for which it “lacked subject matter jurisdiction.”6

        At oral argument in this Court, Riddick asked us to go beyond the assignment of error as

written and consider whether the circuit court erred in conducting a bench trial even if it had subject

matter jurisdiction over the case. Citing the exception to the contemporaneous objection rule found




        5
          Riddick’s primary argument in this regard is based on Cave v. Cunningham, 203 Va.
737 (1962). In Cave, the Supreme Court held that the trial “court was without jurisdiction to try
the case . . . because of the failure of the record to show that the Commonwealth’s attorney
concurred in the waiver of trial by jury.” Id. at 738-39. Having reached this conclusion, the
Supreme Court declared the conviction order in Cave “void[.]” Id. at 739. Riddick reasons that
only orders entered without subject matter jurisdiction are “void,” and therefore, that the jury
trial requirements of Article I, § 8 necessarily go to a circuit court’s subject matter jurisdiction.
We disagree. Significantly, although it referred to jurisdiction generally, the Supreme Court did
not use the phrase “subject matter jurisdiction” in Cave. Thus, Cave does not expressly support
Riddick’s position, leaving him to ask us, as he put it during oral argument in this Court, to
“work backwards” from the Cave Court’s declaration that the order was “void” to reach the
conclusion that the jury trial requirements go to subject matter jurisdiction. We cannot adopt this
reading of Cave or such a view of subject matter jurisdiction because doing so simply cannot be
reconciled with the defining qualities and outer boundaries of subject matter jurisdiction recently
espoused by the Supreme Court in Pure Presbyterian and Cilwa, which we conclude control here.
        6
          Our recent decision in Richardson, 67 Va. App. 436, which was not cited by either party,
does not suggest a different conclusion. In Richardson we did conclude that, because the circuit
“court’s conviction orders do not reflect that [the defendant] consented either to a waiver of his
jury trial rights or to a bench trial,” the circuit “court did not have jurisdiction to proceed with
[the defendant’s] bench trial.” Id. at 447. Unlike Riddick, Richardson raised the jury trial issue
in the trial court, id. at 441, so Richardson was not dependent on a subject matter jurisdiction
argument to preserve the issue for appellate review. Furthermore, although the opinion does not
expressly state the fact, it is clear that our discussion of jurisdiction in Richardson relates to the
circuit court’s active jurisdiction as opposed to its subject matter jurisdiction. Specifically, after
noting that the term “jurisdiction” has been used to mean many things, “including subject matter
jurisdiction . . . territorial jurisdiction . . . notice jurisdiction . . . and the other conditions of fact
[that] must exist as the prerequisites of the authority of the court to proceed to judgment or
decree[,]” id. at 442 n.2 (internal quotation marks and citations omitted), we stated that “[w]e
here use the word ‘jurisdiction’ in its broadest sense[,]” i.e., active, not subject matter,
jurisdiction. Id.
                                                       -9-
in Rule 5A:18, he asserts we can and should do so to serve the “ends of justice.” We cannot recast

his assignment of error in this fashion.

        Rule 5A:12(c)(1)(i) provides that “[o]nly assignments of error assigned in the petition for

appeal will be noticed by this Court.” Thus, we are “limited to reviewing the assignments of

error presented by the litigant[,]” Banks v. Commonwealth, 67 Va. App. 273, 289 (2017), and

cannot “consider issues touched upon by [Riddick]’s argument but not encompassed by his

assignment of error,” id. at 290; see also Carroll v. Commonwealth, 54 Va. App. 730, 737

(2009). Furthermore, “unlike Rule 5A:18, Rule 5A:12 contains no ‘good cause’ or ‘ends of

justice’ exceptions” that would permit the rewriting and expansion of Riddick’s assignment of

error in the manner he requests. Thompson v. Commonwealth, 27 Va. App. 620, 626 (1998).

Accordingly, contrary to Riddick’s request, we only can review and consider the assignment of

error Riddick presented to us, that the circuit court lacked subject matter jurisdiction; we cannot

recast the assignment of error to allow Riddick to make a different argument, that the circuit

court had subject matter jurisdiction but otherwise erred in conducting the trial in this matter.7

                                           CONCLUSION

        For the reasons stated above, the circuit court had subject matter jurisdiction pursuant to

Code §§ 16.1-132 and 17.1-513 to try Riddick’s appeals of his general district court convictions.

As a result, the circuit court did not err in the manner asserted by Riddick. Accordingly, the

judgment of the circuit court is affirmed.

                                                                                           Affirmed.



        7
          The Commonwealth also urges affirmance on the alternative ground that the record
establishes that Riddick voluntarily and intelligently consented to a bench trial. Because we
need not address that issue to resolve the appeal, we offer no opinion as to whether the record
supports such a conclusion. See Commonwealth v. White, 293 Va. 411, 419 (2017) (recognizing
that “judicial restraint dictates that we decide cases on the best and narrowest grounds available”
(citation omitted)).
                                                 - 10 -
