Dwayne M. Reid v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
DWAYNE M. REID
MEMORANDUM OPINION * BY
v. Record No. 1175-95-1 JUDGE SAM W. COLEMAN III
JULY 2, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Timothy E. Miller, Public Defender (Office of
the Public Defender, on brief), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The sole issue in this appeal is whether the circuit court
lacked jurisdiction over this case because the juvenile and
domestic relations district court judge failed to transfer all
papers connected with the case to the circuit court within three
days after receiving notice of the appeal of the transfer
decision as required by Code § 16.1-269(E). We hold that the
three-day requirement is not jurisdictional. Therefore, we
affirm the convictions.
Dwayne M. Reid was convicted in a bench trial of capital
murder, robbery, and two counts of the use of a firearm in the
commission of a felony after his case was transferred to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
circuit court from the juvenile and domestic relations court
(juvenile court). Reid contends that the circuit court did not
have jurisdiction to try him because the juvenile court did not
forward all of the papers connected with the case to the circuit
court within three days of receiving notice of the defendant's
appeal of the transfer decision, as required by Code
§ 16.1-269(E). 1 The principles and rationale set forth by the
Supreme Court in Jamborsky v. Baskins, 247 Va. 506, 442 S.E.2d
636 (1994), control our decision here. Based on the Baskins
decision, we hold that the three-day requirement of Code
§ 16.1-269(E) is directory and procedural, not mandatory and
jurisdictional, and that the defendant was not prejudiced by the
delay in forwarding the papers to the circuit court.
That portion of Code § 16.1-269(E) that requires the
juvenile court judge to forward all papers connected with the
1
Former Code § 16.1-269(E) provided, in pertinent part:
Within three days after receipt of [notice of
an appeal of the transfer decision] the judge
of the juvenile court shall forward to [the]
circuit court all papers connected with the
case, including the report required by this
section, as well as a written order setting
forth the reasons for the juvenile court's
opinion that the case should be retained in
[or transferred from] that court.
Subsequent to the proceedings in the juvenile court and the
circuit court in this case, the General Assembly replaced Code
§ 16.1-269 with Code § 16.1-269.6. The new statute provides that
the juvenile court shall forward to the circuit court all of the
papers connected with the case "[w]ithin seven days after receipt
of notice of an appeal from the transfer decision." Code
§ 16.1-269.6(A).
- 2 -
case after appeal of the transfer decision to the circuit court
"is procedural in that it does not convey a substantive right."
Id. at 511, 442 S.E.2d at 638. Baskins dealt with the provision
in former Code § 16.1-269(E) which stated that the circuit court
"shall" examine the transfer decision within twenty-one days to
determine compliance; this case deals with a provision of the
same statute that has the same purpose -- expeditious review of
the juvenile's transfer to circuit court, which "shall" be done
within three days. In Baskins, the Supreme Court reaffirmed that
"the use of 'shall,' in a statute requiring action by a public
official, is directory and not mandatory unless the statute
manifests a contrary intent." Id. Because "Code § 16.1-269(E)
contains no prohibitory or limiting language that prevents the
[juvenile] court from" forwarding the papers connected with the
case to the circuit court more than three days after receiving
notice of an appeal of the transfer decision, failure to comply
with the three-day requirement is not jurisdictional. Thus, in
the absence of evidence that the defendant was prejudiced by the
delay in forwarding the papers, the judgment of the circuit court
will not be disturbed on appeal. Id. at 511, 442 S.E.2d at
638-39.
Here, all of the papers connected with the case were on file
with the circuit court and were available to the defendant prior
to the circuit court hearing on the transfer decision. The two
continuances that were granted in the circuit court were the
- 3 -
defendant's motions and were not because of the delay in
forwarding the papers. Therefore, the circuit court did not err
by holding that the delay in forwarding the papers did not
prejudice the defendant and by retaining jurisdiction of the
case. Accordingly, we affirm the defendant's convictions.
Affirmed.
- 4 -