                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued by teleconference


CARL BURNES GORDON
                                               OPINION BY
v.   Record No. 1195-01-4              JUDGE ROSEMARIE ANNUNZIATA
                                              AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                 Herman A. Whisenant, Jr., Judge

          Lisa B. Kemler (Zwerling & Kemler, on brief),
          for appellant.

          Leah A. Darron, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     On December 13, 2000, Carl Burnes Gordon was convicted at a

jury trial in the Circuit Court of Prince William County of

transporting marijuana into the Commonwealth with intent to

distribute, in violation of Code § 18.2-248.01, and of

possession with intent to distribute more than five pounds of

marijuana, in violation of Code § 18.2-248.1(a)(3).    The trial

court sentenced him to twelve years in prison, with nine years

suspended, and fined him $60,000, with $50,000 suspended, on the

transportation conviction.

     On March 6, 2001, several months after his conviction and

sentence by the trial court, Gordon filed a motion to set aside

his conviction for transporting marijuana into the Commonwealth
for lack of jurisdiction.   The trial court found that Gordon's

argument related to venue and was, therefore, waived by his

failure to raise it before trial.    The court entered final

judgment on April 18, 2001.    For the reasons that follow, we

affirm.

                              Background

     On July 17, 2000, State Trooper James Robinson noticed a

tractor-trailer without taillights on Interstate 66 in Prince

William County.   Robinson stopped the vehicle, which Gordon

drove.    Gordon told Robinson that he knew his taillights were

not functioning properly, but he hoped to reach Maryland before

stopping.    He claimed he was delivering produce he picked up in

California.

     The trooper wrote a traffic summons for the defective

taillights and asked Gordon to step down from his truck to sign

the summons.   The trooper asked to search the truck, and Gordon

consented.    The trooper found six boxes that were different in

appearance and color from the remainder of the boxes.    He

discovered that these boxes were packed with 145 pounds of

marijuana.    He also found $7,767 in cash.   Based on this

evidence, the jury convicted Gordon of transporting marijuana

into the Commonwealth and of possession of marijuana with intent

to distribute.




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                               Analysis

     In his post-trial motion and on appeal, Gordon argues that

the Circuit Court of Prince William County lacked jurisdiction

to try him for transporting marijuana into the Commonwealth

because it failed to prove that his offense occurred within the

"jurisdiction" or boundaries of Prince William County.      He bases

his claim on Code § 19.2-239, which provides the circuit courts

with "exclusive jurisdiction for the trial of all presentments

and informations for offenses committed within their respective

circuits."    He does not base his claim on Code § 19.2-244, which

governs the venue of trial, 1 or Code § 17.1-513, which governs

the subject matter jurisdiction of the circuit courts. 2 The

circuit court treated Gordon's claim as one involving improper

venue, and not subject matter jurisdiction, and found the claim

to be untimely.    Although we find that the claim is one of

     1
         Code § 19.2-244 provides:

             Except as otherwise provided by law, the
             prosecution of a criminal case shall be had
             in the county or city in which the offense
             was committed. Except as to motions for a
             change of venue, all other questions of
             venue must be raised before verdict in cases
             tried by a jury and before the finding of
             guilty in cases tried by the court without a
             jury.
     2
         Code § 17.1-513 provides, in pertinent part:

             The circuit courts shall have . . . original
             jurisdiction of all indictments for felonies
             and of presentments, informations and
             indictments for misdemeanors.

                                 - 3 -
territorial jurisdiction, not venue, we affirm Gordon's

conviction because his objection to the circuit court's

territorial jurisdiction under Code § 19.2-239 was untimely.

     Gordon claims that the import of the term jurisdiction in

Code § 19.2-239 is analogous to that of subject matter

jurisdiction and is therefore not subject to waiver.   We

disagree.

     "Subject matter jurisdiction is the authority granted to a

court by constitution or by statute to adjudicate a class of

cases or controversies."    Earley v. Landslide, 257 Va. 365, 371,

514 S.E.2d 153, 156 (1999) (citation omitted); accord Morrison

v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). 3


     3
       In Morrison, where the Supreme Court was faced with a
similar attempt to classify a procedural error as one of subject
matter jurisdiction, the Court noted:

            The term jurisdiction embraces several
            concepts including 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 by the unwritten or statute law as
            the prerequisites of the authority of the
            court to proceed to judgment or decree."
            Farant Investment Corp. v. Francis, 138 Va.
            417, 427-28, 122 S.E. 141, 144 (1924).

            While these elements are necessary to enable
            a court to proceed to a valid judgment,

                                - 4 -
Subject matter jurisdiction over the class of felonies that the

court may hear is provided by Code § 17.1-513.       See Code

§ 17.1-513; Thomas v. Commonwealth, 36 Va. App. 326, 330 n.1,

549 S.E.2d 648, 650 n.1 (2001) (noting that Code § 17.1-513

provides the Circuit Courts with jurisdiction over all felonies

committed in the Commonwealth).   There is no question that the

Circuit Court of Prince William County had subject matter

jurisdiction to the felony case at issue here.




          there is a significant difference between
          subject matter jurisdiction and the other
          "jurisdictional" elements.

                 *    *    *      *    *   *     *

          [T]he lack of subject matter jurisdiction
          can be raised at any time in the
          proceedings, even for the first time on
          appeal by the court sua sponte. Thacker v.
          Hubard, 122 Va. 379, 386, 94 S.E. 929, 930
          (1918). In contrast, defects in the other
          jurisdictional elements generally will be
          considered waived unless raised in the
          pleadings filed with the trial court and
          properly preserved on appeal. Rule 5:25.

          One consequence of the non-waivable nature
          of the requirement of subject matter
          jurisdiction is that attempts are sometimes
          made to mischaracterize other serious
          procedural errors as defects in subject
          matter jurisdiction to gain an opportunity
          for review of matters not otherwise
          preserved. See Restatement (Second) of
          Judgments, § 11 (1980).

Morrison, 239 Va. at 169-70, 387 S.E.2d at 755-56.



                               - 5 -
     Rather, Gordon's claim that the Commonwealth did not prove

that his offense occurred within the "jurisdiction" of the

Circuit Court of Prince William County, is essentially a claim

that the trial court lacked territorial jurisdiction.    The term,

"jurisdiction," as used in Code § 19.2-239, refers to the

circuit court's "authority over persons, things, or occurrences

located in a defined geographic area," which is properly

categorized as "territorial jurisdiction" rather than "subject

matter jurisdiction."     Morrison, 239 Va. at 169, 387 S.E.2d at

755; see Thomas, 36 Va. App. at 333, 549 S.E.2d at 651 (finding

defendant's claim that his offense did not occur within the

county of the circuit court in which he was convicted, in

violation of Code § 19.2-239, "was, in the strictest sense, an

issue of territorial[, and not subject matter,] jurisdiction

. . . . "); accord Foster-Zahid v. Commonwealth, 23 Va. App.

430, 440, 477 S.E.2d 759, 764 (1996); Curtis v. Commonwealth, 13

Va. App. 622, 629, 474 S.E.2d 421, 425 (1992).

     As the Supreme Court noted in Morrison, a defendant's claim

that the trial court lacked territorial jurisdiction is

generally waivable.     See 239 Va. at 170, 387 S.E.2d at 756.

However, where the defendant claims that the evidence failed to

prove that the offense occurred in the Commonwealth, we have

found the claim is not subject to waiver.     See Thomas, 36

Va. App. at 332-33, 549 S.E.2d at 651 (finding territorial

jurisdiction claim not waived by defendant's failure to raise it

                                 - 6 -
pre-verdict because the Commonwealth failed "to prove that

[Thomas'] offenses occurred within the Commonwealth of

Virginia"); see also Healy v. The Beer Institute, 491 U.S. 324,

336 n.13 (1989) (noting that "to assert extraterritorial

jurisdiction over persons or property would offend sister States

and exceed the inherent limits of the State's power" (internal

quotation and citation omitted)).   In this case, it is

undisputed that Gordon's offenses occurred in Virginia.    Gordon

claims only the trial court lacked territorial jurisdiction to

try him because the Commonwealth failed to prove that his

offense occurred within the territorial jurisdiction of the

Circuit Court of Prince William County.   Therefore, his claim,

like that based on improper venue, is "waived unless raised in

the pleadings filed with the trial court and properly preserved

on appeal."   Morrison, 239 Va. at 170, 387 S.E.2d at 756 (citing

Rule 5:25).   Accordingly, we affirm his convictions.



                                                           Affirmed.




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