COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Overton 

HAYWOOD LOUIS BURKE 

 OPINION BY 

v. Record No. 0061-98-1 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 23, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 (Richard C. Clark, Senior Assistant Public 

Defender; Office of the Public Defender, on 

brief), for appellant. Appellant submitting 

on brief. 

 (Mark L. Earley, Attorney General; Richard B. 

Campbell, Assistant Attorney General, on 

brief), for appellee. 

 Haywood Louis Burke ("appellant") appeals his conviction of 

malicious wounding on the ground that his preliminary hearing was 

improperly held in the juvenile and domestic relations district 

court ("juvenile court"). Appellant argues the juvenile court 

did not have jurisdiction to conduct the preliminary hearing 

because his victim was not a "family or household member" as 

specified in Code § 16.1-241(J). We find that appellant waived 

any objection to this defect in procedure because he failed to 

raise it before trial in the circuit court. Accordingly, we 

affirm his conviction. 

 Appellant was arrested and indicted for malicious wounding 

after he struck Myra Saunders in the head and face multiple 

times. Appellant and Saunders were not married but had a 

romantic relationship with one another at the time. Although the 
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couple had no children in common and maintained separate 

residences in different cities, they frequently spent weekends 

together. The juvenile court held a preliminary hearing and then 

certified appellant's case to the circuit court for trial. 

Appellant raised no objection, in either the juvenile or circuit 

court, to the juvenile court's exercise of jurisdiction over his 

preliminary hearing. Appellant was subsequently convicted in the 

circuit court and received a sentence of ten years in prison with 

six years suspended. 

 On appeal, appellant contends the juvenile court did not 

have jurisdiction over his preliminary hearing because Saunders 

was not a "family or household member," as defined by Code 

§ 16.1-228. Appellant also contends he did not waive this 

jurisdictional issue by his failure to object, citing authority 

for the proposition that the absence of subject-matter 

jurisdiction is always cognizable on appeal. Winston v. 

Commonwealth, 26 Va. App. 746, 497 S.E.2d 141 (1998); Burfoot v. 

Commonwealth, 23 Va. App. 38, 473 S.E.2d 724 (1996); Pope v. 

Commonwealth, 19 Va. App. 130, 449 S.E.2d 269 (1994). We find 

that appellant's reliance on these decisions is misplaced and 

disagree with his contentions. 

 Currently, Code § 16.1-241(J) gives the juvenile court 

"exclusive original jurisdiction" over: 

 All offenses in which one family or household 

member is charged with an offense in which 

another family or household member is the 

victim . . . . 
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 In prosecution for felonies over which the 

court has jurisdiction, jurisdiction shall be 

limited to determining whether or not there 

is probable cause. Any objection based on 

jurisdiction under this subsection shall be 

made . . . , in a nonjury trial, before the 

earlier of when the court begins to hear or 

receive evidence or the first witness is 

sworn, or it shall be conclusively waived for 

all purposes.

Code § 16.1-241(J) (emphasis added). "A primary rule of 

statutory construction is that courts must look first to the 

language of the statute. If a statute is clear and unambiguous, 

a court will give the statute its plain meaning." Loudoun County 

Dep't of Soc. Servs. v. Etzold, 245 Va. 80, 84, 425 S.E.2d 800, 

802 (1993). The above-emphasized amendment to the statute is 

clear. Code § 16.1-241(J) requires an accused to object to the 

juvenile court's jurisdiction to determine probable cause before 

his or her trial in the circuit court commences; otherwise, the 

objection is waived. 

 Notwithstanding the amendment to Code § 16.1-241(J), 

appellant urges us to find that he did not waive his objection to 

jurisdiction in this case, contending that objections to 

subject-matter jurisdiction are cognizable on appeal, even if not 

preserved below. We disagree. 

 Contrary to appellant's assertions, our decision in Pope 

does not affect the result here. In Pope, the defendant 

challenged the jurisdiction of the circuit court, alleging that, 

under Code § 16.1-241(J), he was improperly brought before the 

general district court for a preliminary hearing. 19 Va. App. at 
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131, 449 S.E.2d at 269-70. At that time, Code § 16.1-241(J) gave 

the juvenile court exclusive original jurisdiction over the 

following matters: 

 All offenses in which one family or household 

member is charged with an offense in which 

another family or household member is the 

victim. In prosecution for felonies over 

which the court has jurisdiction, 

jurisdiction shall be limited to determining 

whether or not there is probable cause. 

Pope argued that, because he committed an offense against a 

"family or household member," his preliminary hearing could only 

be held in the juvenile court. Id. A panel of this Court agreed 

and reversed Pope's conviction. 

 To the extent that a preliminary hearing was 

to be had in this case where the victim was a 

family member, it could not occur anywhere 

but in the juvenile and domestic relations 

court. Nothing in Code § 16.1-241(J) 

conferred upon the general district court 

power to act in the stead of the juvenile and 

domestic relations district court. That 

general district court acted in the absence 

of jurisdiction and thus had no power to 

certify the case to the circuit court. 

Id. at 133-34, 449 S.E.2d at 271. 

 Our decision in Pope is inapposite as it was decided under 

an earlier version of Code § 16.1-241(J). In its earlier form, 

the statute did not address the timing of an objection based on 

the juvenile court's exclusive jurisdiction to determine probable 

cause in offenses between family members. As a result, we 

declined to treat Pope's waiver of his preliminary hearing before 

the general district court as a waiver of his objection to 

jurisdiction under Code § 16.1-241(J). Id. at 133, 449 S.E.2d at 
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270. We have not previously addressed the amendment to Code 

§ 16.1-241(J), which was adopted subsequent to our decision in 

Pope. We find the amended language controls this case. 

 When new provisions are added to existing legislation by 

amendment, we presume that, in making such amendment, the 

legislature "acted with full knowledge of and in reference to the 

existing law upon the same subject and the construction placed 

upon it by the courts." City of Richmond v. Sutherland, 114 Va. 

688, 693, 77 S.E. 470, 472 (1913). We further presume that the 

legislature acted purposefully with the intent to change existing 

law. Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 

596, 600, 331 S.E.2d 476, 479 (1985); Wisniewski v. Johnson, 223 

Va. 141, 144, 286 S.E.2d 223, 224-25 (1982). 

 Appellant's analysis fails to recognize that subject-matter 

jurisdiction is a matter of legislative or constitutional 

conferral and definition. Winston, 26 Va. App. at 752, 497 

S.E.2d at 144. It follows that, when subject-matter jurisdiction 

is statutorily created, the legislature is entitled to carve out 

exceptions to the general rule governing the judicial exercise of 

jurisdiction and provide that the statutorily created 

subject-matter jurisdiction may be waived if objection is not 

made in accordance with the statute. See id. at 752 n.1, 497 

S.E.2d at 144 n.1. See also Burk v. Burk, 577 P.2d 65, 66-67 

(Okla. 1978). 

 Finally, we note that appellant's reliance on Burfoot is 

misplaced. Burfoot is distinguishable on its facts and the 
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statutes which governed its disposition. Our decision in Burfoot

applied well-established principles of law addressing the due 

process rights of juvenile defendants alleged to have committed 

criminal offenses. Burfoot, 23 Va. App. at 45-49, 473 S.E.2d at 

728-30. See Matthews v. Commonwealth, 216 Va. 358, 360-61, 218 

S.E.2d 538, 540-41 (1975); Peyton v. French, 207 Va. 73, 79, 147 

S.E.2d 739, 743 (1966). In such cases, the proceedings set forth 

in Code §§ 16.1-260 and 16.1-269.1 were determined to be 

mandatory and jurisdictional. Thus, among the statutory 

prerequisites to the circuit court's jurisdiction are the 

initiation of a proceeding by petition and the conduct of a 

transfer hearing. Burfoot, 23 Va. App. at 49, 473 S.E.2d at 730. 

 In contrast to the matter before us here, the legislature 

adopted no exception to the jurisdictional prerequisites of 

prosecuting a juvenile in the circuit court. Winston, 26 Va. 

App. at 752 n.1, 497 S.E.2d at 144 n.1 ("The waiver provision of 

Code § 16.1-269.6(E) does not apply to cases . . . in which 'no 

petition was filed or transfer hearing was held.'" (quoting 

Burfoot v. Commonwealth, 23 Va. App. 38, 51, 473 S.E.2d 724, 731 

(1990))). Furthermore, the mandated procedures to initiate a 

criminal prosecution of a juvenile in circuit court were not made 

applicable to adults charged with violations of the criminal law 

under Code §§ 16.1-241(I) or 16.1-241(J).1 This distinction is 

 

 1 In cases where an adult is charged with 

violations of the criminal law pursuant to 

subdivisions I or J of § 16.1-241, the
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ostensibly rooted in the policy considerations underlying the 

enactment of law governing the treatment of juvenile offenders.2

These considerations do not pertain to adult offenders whose 

offense may bring them within the purview of the juvenile court. 

 We hold that the legislature, when it enacted Code 

§ 16.1-241(J), created an exception to the general rule that lack 

of subject-matter jurisdiction cannot be waived. Accordingly, we 

procedure and disposition applicable in the 

 trial of such cases in general district court

shall be applicable to trial in juvenile 

court. . . .

 Proceedings in cases of adults may be 

instituted on petition by any interested 

party, or on a warrant issued as provided by 

law, or upon the court's own motion. 

Code § 16.1-259 (emphasis added). 

 2 The Supreme Court of Virginia articulated these policy 

considerations in Peyton. 

 The powers conferred [upon the juvenile and 

domestic relations district court by the 

Code] are to be exercised to effect its 

beneficial purposes, and in all proceedings 

concerning the disposition, custody and 

control of children coming within the purview 

of the law the court shall proceed upon the 

theory that the welfare of the child is the 

paramount concern of the State. . . . [T]he 

clear purpose and intent of the Juvenile and 

Domestic Relations Court Law cannot be 

achieved if it is not mandatory that the 

proceedings set forth in [Code §§ 16.1-260 

and 16.1-269] be complied with. Indeed, the 

very language of the statutes makes it 

mandatory that the aforesaid mentioned 

statutes be followed before criminal 

jurisdiction in a proper court of record 

comes into being. 
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Peyton, 207 Va. at 79, 147 S.E.2d at 743. 
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hold that appellant waived his objection to the juvenile court's 

exercise of jurisdiction over his preliminary hearing by not 

raising such objection before trial in the circuit court. 

 The appellant's conviction is affirmed.3

 Affirmed.

 

 3 Because we decide this case on the ground that appellant 

waived his objection to the jurisdiction of the juvenile court to 

determine probable cause, we do not decide whether his 

relationship to Saunders falls within the ambit of the term 

"family or household member," as the term is defined by Code 

§ 16.1-228.