                    COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


JAMES ARTHUR PRICE, JR.
                                                OPINION BY
v.   Record No. 2313-96-1                 JUDGE RICHARD S. BRAY
                                             OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Verbena M. Askew, Judge

            (David G. Wittan, on briefs), for appellant.
             Appellant submitting on brief.
            Kimberley A. Whittle, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     James Arthur Price, Jr. (defendant), a juvenile transferred

to the circuit court for trial as an adult, was convicted on

indictments charging robbery and the related use of a firearm.

Defendant complains on appeal that he was denied a speedy trial

in violation of Code § 19.2-243.   Finding that defendant was

continuously in custody in excess of five months from the finding

of probable cause to the commencement of trial, contrary to

statute, we reverse the convictions.

     The pertinent procedural history is uncontroverted.

Defendant was arrested and incarcerated on September 19, 1995,

upon petitions alleging the instant offenses.      Defendant was then

on probation and subject to the attendant supervision and

jurisdiction of the Newport News Juvenile and Domestic Relations

District Court (district court) as a result of unrelated prior

offenses.
     On motion of the Commonwealth to transfer defendant to the

circuit court for prosecution as an adult, the district court

conducted a hearing in accordance with former Code § 16.1-269.1 1

on October 4, 1995.   At the conclusion of these proceedings, the

district court found "probable cause to believe [defendant]

committed the delinquent act[s] alleged," ordered him transferred

and certified to the circuit court for "proper criminal

[prosecution]," and "[r]emanded to . . . the Newport News City

Jail."   The district court also determined that defendant had

violated terms of the unrelated probation and "committed" him to

the custody of the Department of Juvenile Justice (Department).

Defendant did not appeal either disposition and remained in

custody on both.
     Defendant was indicted in the circuit court (trial court)

for the subject crimes on November 13, 1995, and trial was

scheduled for December 15, 1995.   Subsequently, the prosecutor

discovered that the trial court had entered no order "advising

the attorney for the Commonwealth that he may seek an indictment"

in accordance with Code § 16.1-269.6(B), and, on December 15,
                                                             2
1995, moved the court to "quash" the November indictments.
     1
      The 1996 amendments to Code §§ 16.1-269.1 and 16.1-269.6
expressly apply only "to offenses committed and to records
created and proceedings held with respect to those offenses on or
after July 1, 1996." See 1996 Va. Acts chs. 755, 914. Unless
otherwise specified, this opinion references the controlling
former statutes, enacted in 1994.
     2
      Rule 3A:9(a) of the Rules of the Virginia Supreme Court
provides that "[d]efenses and objections made before trial that
heretofore could have been made by other pleas or by demurrers



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Defendant, though still in custody, did not appear for argument

on the motion; however, his counsel was present, voiced no

objection, and the court granted the motion.   The record reflects

no related consideration or modification of defendant's

continuing custodial status pursuant to the transfer order of

October 4, 1995.

     Shortly thereafter, defendant's probation officer, Gregory

Haywood, learned of the December 15, 1995 proceedings, contacted

the prosecutor on December 18, 1995, and reminded him that

defendant was in the custody of the Department.   Haywood

testified that, as a result of the instant offenses, the

Department had "classified" defendant as a "major offender,"

thereby changing his "length of stay" from "several months" on

the unrelated probation violation to "indeterminate," pending a

disposition by the trial court.
     On January 3, 1996, the trial court entered an order

properly authorizing the Commonwealth to seek indictments and

directing that defendant "be transferred from the juvenile

detention facility to the Newport News City Jail."   Accordingly,

defendant was again indicted on January 8, 1996, and thereafter

arrested on a capias and "remanded to jail," although already in

custody dating from arrest on September 19, 1995.    He remained in

and motions to quash shall be made only by motion to dismiss or
to grant appropriate relief, as provided in these Rules."
Because the parties and the trial court referenced the
Commonwealth's "motion to quash" the indictments, this opinion
adopts such terminology.




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custody until trial on July 11, 1996.

     Code § 19.2-243, oftentimes referenced as the "speedy trial

statute," provides, in pertinent part, that
          [w]here a general district court has found
          that there is probable cause to believe that
          the accused has committed a felony, the
          accused, if he is held continuously in
          custody thereafter, shall be forever
          discharged from prosecution for such offense
          if no trial is commenced in the circuit court
          within five months from the date such
          probable cause was found by the district
          court; . . . .
               If there was no preliminary hearing in
          the district court, or if such preliminary
          hearing was waived by the accused, the
          commencement of the running of the five and
          nine months periods, respectively, set forth
          in this section, shall be from the date an
          indictment or presentment is found against
          the accused.
               If an indictment or presentment is found
          against the accused but he has not been
          arrested for the offense charged therein, the
          five and nine months periods, respectively,
          shall commence to run from the date of his
          arrest thereon. 3 . . .


     On May 9, 1996, defendant moved to dismiss the prosecutions

as violative of the speedy trial statute.   The trial court denied

the motion and convicted defendant at trial on July 11, 1996.

Defendant argues on appeal that "even after the [initial]

indictments were quashed, the underlying transferred charges

still rested in the bosom of the [circuit] court, awaiting action

by the judge in accordance with Code § 16.1-269.6(B)."    Thus,

defendant reasons that he remained in continuous custody on the
     3
      The provisions of Code § 19.2-243 do not apply to delays
occasioned by certain causes not in issue here.




                              - 4 -
offenses from the finding of probable cause by the district court

on October 4, 1995, until trial on July 11, 1996, a period

substantially in excess of the five months prescribed by Code

§ 19.2-243.

     In response, the Commonwealth suggests that the district

court proceedings did not constitute a "preliminary hearing" and

lacked the determination of probable cause contemplated by the

speedy trial statute.    The Commonwealth, therefore, maintains

that defendant was prosecuted on the indictments of January 8,

1996, following a nolle prosequi of the previous indictments,

thus triggering the speedy trial time clock on January 8, 1996,

not October 4, 1995. 4   Moreover, the Commonwealth attributes

defendant's "continuous custody" to "other charges," which

excluded the instant prosecution from the limitations of Code

§ 19.2-243.    The Commonwealth's arguments, however, overlook the

procedural course of the prosecution.

     Defendant, a juvenile, came before the district court, the

court having "exclusive, original jurisdiction," upon petitions

alleging commission of the offenses.    See Code § 16.1-241;

Burfoot v. Commonwealth, 23 Va. App. 38, 45, 473 S.E.2d 724, 728

(1996) (citing Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739,

742 (1966)).   On motion of the Commonwealth, the district court

conducted a transfer hearing pursuant to Code § 16.1-269.1, which

     4
      If the speedy trial computation begins on January 8, 1996,
it is undisputed that the trial was timely.




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provided, in relevant part, that:
          If a juvenile fourteen years of age or older
          is charged with an offense which would be a
          felony if committed by an adult, the court
          shall, on motion of the attorney for the
          Commonwealth and prior to a hearing on the
          merits, hold a transfer hearing and may
          retain jurisdiction or transfer such juvenile
          for proper criminal proceedings to the
          appropriate circuit court having criminal
          jurisdiction of such offenses if committed by
          an adult. Any transfer to the appropriate
          circuit court shall be subject to the
          . . . condition[] [that] . . . [t]he juvenile
          court finds that probable cause exists to
          believe that the juvenile committed the
          delinquent act as alleged or a lesser
          included delinquent act which would be a
          felony if committed by an adult . . . .

1994 Va. Acts chs. 859, 949 (emphasis added) (codified as Code

§ 16.1-269.1 and amended by 1996 Va. Acts chs. 755, 914).    Thus,

the jurisdiction of the circuit court over defendant was

predicated upon a proper transfer hearing in the district court

and related order.

     This statutory scheme "'afford[s] juvenile defendants . . .

the protection and expertise of the juvenile court during the
preliminary, or certification, hearing stage of a criminal

prosecution.'"   Burfoot, 23 Va. App. at 46, 473 S.E.2d at 728

(emphasis added) (quoting Payne v. Warden, 223 Va. 180, 184, 285

S.E.2d 886, 888 (1982)).   Although the transfer hearing "'is not

as limited in its scope as a preliminary hearing under the

criminal procedures applicable to an adult,'" id. at 46, 473

S.E.2d at 728 (quoting Peyton, 207 Va. at 78, 147 S.E.2d at 742),
both proceedings require the district court to find probable



                               - 6 -
cause to believe that the accused committed the alleged felonious

act as a condition to further prosecution of the offense in the

circuit court.     See Code § 16.1-269.1(A)(2); Code § 19.2-218;

Burfoot, 23 Va. App. at 45, 473 S.E.2d at 728.

     Accordingly, when the district court certified and

transferred defendant for trial as an adult in the circuit court,

the district court necessarily found the requisite probable cause

contemplated by the speedy trial statute.    Because the transfer

order directed that defendant be "[r]emanded to jail," the

prescribed five month limitation of Code § 19.2-243 commenced on

October 4, 1995.    It is immaterial that such custody coincided

with detention of defendant incidental to the unrelated

commitment.   See Funk v. Commonwealth, 16 Va. App. 694, 695-96,

432 S.E.2d 193, 194 (1993).

     Following entry of the transfer order by the district court,

Code § 16.1-269.6(A) directed that "the clerk [of the district

court] . . . forward . . . all papers connected with the case" to

the trial court, Code § 16.1-269.6(A), which "shall [then] . . .

examine all such papers, . . . and enter an order either

remanding the case to the juvenile court or advising the attorney

for the Commonwealth that he may seek an indictment."    Code

§ 16.1-269.6(B).    Upon authorizing indictment, the circuit court

must order transfer of the "juvenile from the juvenile detention

facility to an appropriate local correctional facility," Code

§ 16.1-269.6(B), and the juvenile court shall be "divest[ed]



                                 - 7 -
. . . of its jurisdiction over the case."   Code § 16.1-269.6(C).

Adherence to the statutory transfer procedure is mandatory and

jurisdictional.    Burfoot, 23 Va. App. at 48-49, 473 S.E.2d at

730; see Peyton, 207 Va. at 80, 147 S.E.2d at 743.

     Thus, irrespective of the trial court's order to quash, the

initial indictments of defendant were a nullity, obtained without

the benefit of the enabling order required by Code

§ 16.1-269.6(B).   The court simply remedied of record an error or

oversight in the proceedings, without disturbing the legal

efficacy of the pending transfer order or effecting a nolle
prosequi.   See Cheeks v. Commonwealth, 20 Va. App. 578, 586, 459

S.E.2d 107, 111 (1995) (reversed and remanded to circuit court a

conviction resulting from erroneous transfer proceedings in the

circuit court).    Otherwise, the circuit court would have been

without the procedural vehicle necessary to authorize the January

8, 1996 indictments pursuant to Code § 16.1-269.6.

     Accordingly, defendant was held continuously in custody from

the finding of probable cause in the district court on October 4,

1995, until trial on July 11, 1996, in violation of Code

§ 19.2-243, and we must reverse and dismiss the convictions.
                                          Reversed and dismissed.




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