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COURT OF APPEALS OF VIRGINIA






Present:  Judges Elder, Lemons and Senior Judge Cole

Argued at Richmond, Virginia





JEROME ANTONIO WOODFORK

                       OPINION BY

v.      Record No. 1923-98-2    JUDGE LARRY G. ELDER

                                                                   DECEMBER 7, 1999

COMMONWEALTH OF VIRGINIA





FROM THE CIRCUIT COURT OF NEW KENT COUNTY

Thomas B. Hoover, Judge



               Charles E. Adkins for appellant.



               Michael T. Judge, Assistant Attorney General

(Mark L. Earley, Attorney General, on brief),

for appellee.





       Jerome Antonio Woodfork (appellant) appeals from his bench

trial convictions for malicious wounding and attempted grand

larceny.  On appeal, he contends that his circuit court

convictions are void due to defects in his original transfer

hearing in the juvenile and domestic relations district court.  

We find no defect requiring reversal, and we affirm the

convictions, subject to remand to correct a clerical error.

I.

FACTS

       On October 1, 1997, appellant appeared in the New Kent

County Juvenile and Domestic Relations District Court (district

court) on charges of abduction in violation of Code   18.2-47

and malicious wounding in violation of Code   18.2-51 (case

numbers J-2735-01 and J-2735-02) allegedly committed against

Lisa Diane Kinaitis on February 28, 1997.  In completing the

felony certification form, the district court checked the box

indicating a "find[ing] that the evidence is insufficient to

establish probable cause to believe that the juvenile committed

the alleged offense(s)" and dismissed the charges.  It did not

check the box indicating a "find[ing] that the juvenile was not

fourteen (14) years of age or older at the time of the alleged

offense(s)."  Although no transcript of the October 1, 1997

proceedings appears in the record, the parties agree that the

Commonwealth's evidence failed to prove appellant was fourteen

years of age or older at the time of the alleged offenses and

that appellant introduced no evidence to prove he was under

fourteen.

       Also on October 1, 1997, the sheriff's department issued

petitions charging appellant with aggravated malicious wounding

in violation of Code   18.2-51.2 and attempted grand larceny in

violation of Code   18.2-95 and 18.2-26 (case numbers J-2735-03

and J-2735-04), also involving Lisa Diane Kinaitis on February

28, 1997.

       On October 31, 1997, appellant appeared in district court

for a hearing on those petitions.  The Commonwealth introduced

into evidence a copy of appellant's birth certificate showing a

birth date of November 23, 1980, making appellant sixteen years

of age on February 28, 1997, the date of the charged offenses.  

The court found "from the evidence presented that [appellant]

was fourteen (14) years of age or older at the time of the

alleged offense and that there is probable cause to believe that

the juvenile committed [aggravated malicious wounding]."  It

ordered the charges certified to the grand jury, and on November

17, 1997, the grand jury issued indictments on both charges.

       When appellant appeared in circuit court on February 13,

1998 for his scheduled trial, his attorney requested a

continuance to obtain a competency evaluation.  During those

proceedings, the trial court inquired of appellant's counsel

whether he had any "objection to the procedure that was followed

by . . . [the Commonwealth or the district court] to transfer

the case here."  Appellant's counsel agreed that the statute had

been complied with and contended only that it was "in

[appellant's] best interest to remain in juvenile court."

       When the parties again appeared for trial on April 27,

1998, the court arraigned appellant on the aggravated malicious

wounding and attempted grand larceny charges.  Subsequently, the

Commonwealth moved the court to make part of the record the

district court order certifying the case to the circuit court

for trial.  The circuit court also received into evidence a copy

of appellant's birth certificate offered by the Commonwealth.  

When the circuit court asked appellant's counsel whether he had

any objection to the transfer proceeding, counsel said, "Well,

Judge, I believe this fell under the discretionary transfer by

the Commonwealth, and it wouldn't have been appropriate for me

to object to that."

       After hearing the parties' evidence, the circuit court

reduced the charge of aggravated malicious wounding to malicious

wounding and convicted appellant of malicious wounding and

attempted grand larceny.  Following his convictions but prior to

the court's entry of its sentencing order, appellant moved the

court to declare the convictions void, contending that the

Commonwealth's inability to prove appellant's age at the first

transfer hearing required that the Commonwealth proceed against

appellant as a juvenile and that the circuit court never

acquired jurisdiction over him.  After hearing argument from

both parties, the trial court denied the motion.

II.

ANALYSIS

       Appellant argues on appeal that the district court had

exclusive original jurisdiction over the charges against him and

that defects in the first transfer hearing prevented the circuit

court from obtaining the subject matter jurisdiction necessary

for his convictions.  As a result, he contends, the convictions

are void, thereby permitting him to attack them for the first

time on appeal.

       We hold that appellant's objections are without substantive

merit under Code   16.1-269.1.  Appellant originally was charged

with malicious wounding in violation of Code   18.2-51 and

abduction in violation of Code   18.2-47.  Under Code

 16.1-269.1(C), the district court was required to conduct the

preliminary hearing on the malicious wounding charge once the

Commonwealth elected to seek to have appellant transferred to

the circuit court for trial as an adult, as long as the

Commonwealth provided the requisite notice and proved that

appellant was fourteen years of age or older at the time of the

alleged offense.  Here, the record indicates the district court

found "the evidence [was] insufficient to establish probable

cause to believe that the juvenile committed the alleged

offense(s)" and it dismissed the case, an act which was within

its discretion at that time.

       Appellant contends that the evidence at the first transfer

hearing failed to prove appellant was fourteen or older at the

time of the alleged offense.  As a result, he argues, the

district court erred in dismissing the original charges and not

directing that they "proceed as otherwise provided for by law,"

as required by the last paragraph of Code   16.1-269.1(D).  

Appellant contends that the district court should have tried him

as a juvenile on the charges then before it and that the

erroneous dismissal prevented the circuit court from obtaining

jurisdiction over him in the subsequent proceeding.

       We hold that appellant misconstrues the language of Code

 16.1-269.1(D).  Before the court is required under

 16.1-269.1(D) to see that "the case shall proceed as otherwise

required by law," it must first "find[] that the juvenile was

not fourteen years of age or older at the time of the alleged

commission of the offense."   Code   16.1-269.1(D) (emphasis

added).  Here, the record contains no evidence that the district

court made such a finding.  Appellant furnished no transcript or

statement of facts detailing the evidence introduced at the

original transfer hearing, and the district court's order

indicates it found only "that the evidence is insufficient to

establish probable cause to believe that the juvenile committed

the alleged offense(s)."  See, e.g., McBride v. Commonwealth, 24

Va. App. 30, 35, 480 S.E.2d 126, 128 (1997) (holding that "[a]

court speaks through its orders and those orders are presumed to

accurately reflect what transpired"); see also Stamper v.

Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979)

(noting that presumption ordinarily applies where order

conflicts with transcript of related proceedings).  The court

did not find "that the juvenile was not fourteen (14) years of

age or older at the time of the alleged offense(s)."

       Appellant next contends that, because the district court

erred in dismissing the charges at issue in the original

transfer hearing, the second transfer hearing could not vest

jurisdiction in the circuit court, regardless of whether the

second hearing otherwise was conducted in compliance with the

transfer statute.  He also argues, citing Code   16.1-269.1(E),

that indictment in the circuit court did not remedy this

jurisdictional problem because such indictment does not "cure[]

any error or defect . . . with respect to the juvenile's age."  

       We hold that these claimed errors did not prevent the

circuit court from obtaining jurisdiction over the second set of

charges.  First, we already have held that the district court

did not err in dismissing the original charges against appellant

because the court did not find that appellant was not fourteen

years of age or older.

       Second, we need not decide whether the district court's

dismissal of the original charges based on the lack of evidence

of appellant's age constitutes an "error or defect" in the

hearing which may not be cured by indictment in the circuit

court.  This is so because the charges for which appellant was

convicted do not depend on Code   16.1-269.1(E) for their

legitimacy.  Rather, the Commonwealth initiated the second round

of charges against appellant by preliminary hearing in the

district court, and the district court treated the matter as if

no prior transfer hearing had occurred.

       In this second hearing, on October 31, 1997, the district

court received into evidence a copy of appellant's birth

certificate, which supported its finding that appellant was

fourteen years of age or older at the time of the alleged

offense.  Further, it found that probable cause existed to

believe appellant committed aggravated malicious wounding, a

finding appellant does not challenge on appeal.  As a result, it

certified both charges to the grand jury, which returned

indictments on both offenses.  Because the second round of

charges proceeded to the circuit court for trial only after a

new transfer hearing in which the district court made the

requisite findings regarding age and probable cause, appellant's

challenge to the circuit court's jurisdiction must fail.

       For these reasons, we affirm appellant's convictions for

malicious wounding and attempted grand larceny.  However, due to

the clerical error in the conviction and sentencing orders

regarding the statute under which appellant was convicted, see

supra note 1, we remand this matter to the trial court for the

sole purpose of amending the conviction and sentencing orders to

reflect that appellant was convicted under Code   18.2-51 rather

than Code   18.2-51.2.

                                                  Affirmed on the merits

                                                  and remanded with instructions.



 Appellant was indicted for aggravated malicious wounding

pursuant to Code   18.2-51.2.  The order of conviction entered

May 14, 1998 indicates that the court found appellant guilty of

malicious wounding in violation of Code   18.2-51.2.  However,

Code   18.2?51.2 proscribes the offense of aggravated malicious

wounding; a different statute, Code   18.2-51, proscribes

malicious wounding.  The sentencing order entered August 11,

1998 also does not make clear the offense for which appellant

was convicted.  It repeats the inconsistent offense and

statutory citation contained in the conviction order and imposes

a sentence of twenty years, which would be appropriate for

either offense.  However, the trial transcript of April 27, 1998

makes clear that the trial court convicted appellant under Code

 18.2-51 rather than   18.2-51.2, for it granted appellant's

motion to strike the evidence of aggravated malicious wounding,

directed that the case would proceed on the charge of malicious

wounding, and found appellant guilty of that charge.  Therefore,

we remand the matter to the trial court for the sole purpose of

correcting the clerical errors in the trial court's conviction

and sentencing orders.  See Tatum v. Commonwealth, 17 Va. App.

585, 592, 440 S.E.2d 133, 138 (1994).

 In fact, because appellant was charged with aggravated

malicious wounding, the Commonwealth had no discretion.  Code

 16.1-269.1(B) required that the district court conduct the

preliminary hearing and transfer the case if it found probable

cause.



 Pursuant to the statute, the court also is required to

direct that the case proceed as required by law if it finds

"that the conditions specified in subdivision 1, 2, or 3 of

subsection A have not been met."  Because appellant does not

contend on appeal that the conditions specified in subsection

(A) have not been met, we do not consider that portion of the

statute in this appeal.
















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