COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

EUGENE ARTHUR PORTER, JR. 

v. Record No. 0757-95-2 OPINION 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA MAY 28, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

W. Park Lemmond, Jr., Judge 

 Reginald M. Barley for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Eugene Arthur Porter, Jr. (appellant) appeals from his bench 

trial first degree murder conviction by the Circuit Court of the 

City of Hopewell (trial court). Appellant contends that the 

trial court lacked jurisdiction over him because in a transfer 

hearing held in the Juvenile and Domestic Relations District 

Court (J&D court) the detention order recited that: 

The Court finds that the evidence presented 

at the transfer hearing was insufficient to 

establish probable cause to believe that the 

juvenile committed the alleged delinquent 

act, and therefore the case is retained in 

this Court for trial at a later date.1

For the reasons that follow, we affirm. 

 

 1The order further directed that appellant "be detained in an 

appropriate secure juvenile detention facility." 
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 The record discloses the following procedures and findings: 

 On December 15, 1993, a petition was issued in the J&D court 

against appellant, then seventeen years old, charging him with 

murder. 

 On December 17, 1993, pursuant to Code § 16.1-269 (since 

repealed), the Commonwealth moved to transfer the case to the 

circuit court for trial of appellant as an adult. A transfer 

hearing was held in the J&D court on February 4, 1994. That 

court denied the Commonwealth's motion, finding that "the 

evidence presented at the transfer hearing was insufficient to 

establish probable cause to believe that the juvenile committed 

the alleged delinquent act, and therefore, the case is retained 

in this Court for trial at a later date." On February 25, 1994, 

the Commonwealth, pursuant to former Code § 16.1-269(E), filed a 

notice of removal in the circuit court. 

 On April 13, 1994, appellant filed a motion to dismiss in 

response to the Commonwealth's notice of removal, claiming that 

the circuit court lacked jurisdiction (1) "to review the issue of 

transfer since no decision on such issue was made by [the J&D 

court]" and (2) "to determine the issue of probable cause since 

such determination lies within the exclusive original 

jurisdiction of the appropriate [J&D] court." After a hearing on 

the Commonwealth's motion to remove the case and upon appellant's 

motion to dismiss the proceedings, the circuit court held that 

the requirements of former Code § 16.1-269(E) had been satisfied 
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and authorized the Commonwealth to seek an indictment against 

appellant. 

 On April 20, 1994, appellant was indicted for murder. 

 On July 29, 1994, appellant filed an application for a writ 

of prohibition with this Court alleging that the circuit court 

lacked jurisdiction to permit the Commonwealth to seek an 

indictment because the J&D court had failed to find probable 

cause. This Court denied the application, stating that "the 

relief sought [was] not cognizable for review by a petition for 

writ of prohibition." 

 On November 9, 1994, appellant was tried and convicted. 

 The issue appellant raises on appeal is not entirely 

consistent with the finding of the J&D court. The hearing held 

in that court was a transfer hearing, not a preliminary hearing 

to determine probable cause of guilt. Former Code § 16.1-269 

provided a vehicle by which the J&D court may hold a hearing for 

the sole purpose of determining whether a juvenile charged with a 

crime should be retained in the J&D court for trial or 

transferred to the circuit court for criminal proceedings as if 

the juvenile were an adult. That vehicle was appropriately 

referred to as a "transfer hearing," and the finding made there 

did not determine guilt or innocence, only whether the case 

should be transferred to the circuit court or retained in the J&D 

court for trial. 

 When the J&D court denied the motion to transfer and ordered 
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that the juvenile's case be retained in that court, subsection 

(E) of former Code § 16.1-269 provided the Commonwealth with a 

method of review by the circuit court of the J&D court's 

decision. That subsection provided that in such cases, when the 

attorney for the Commonwealth "deems it to be in the public 

interest," the Commonwealth may seek a removal of the case to the 

proper circuit court. After notice as provided in former Code 

§ 16.1-269(E), the circuit court must then 

within a reasonable period of time after 

receipt of the case from the juvenile court, 

(i) examine all such papers, reports and 

orders and (ii) conduct a hearing to take 

further evidence on the issue of transfer, to 

determine if there has been compliance with 

this section, but without redetermining 

whether the juvenile court had sufficient 

evidence to find probable cause, 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. 

The record before us discloses that the transfer hearing and 

review thereof were conducted in accordance with the requirements 

of former Code § 16.1-269. 

 The issue as stated by appellant fails to recognize that the 

hearing in the J&D court was for the purpose of determining 

whether a transfer of the case should be made. The J&D court 

ruled that the case should be retained. While the J&D court 

cited a lack of "probable cause" as the basis for denying the 

Commonwealth's motion to transfer appellant's case, the record 

makes clear that the J&D court concluded that the Commonwealth 
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had failed to demonstrate probable cause or cause to justify a 

transfer under former Code § 16.1-269. If the J&D court had, in 

fact, found probable cause lacking against appellant, it would 

not have retained the case for trial at a later date; rather, it 

would have dismissed the charge against appellant outright. On 

the issue whether proper procedure was followed in transferring 

the case to the circuit court, it is clear that no constitutional 

or statutory right has been abridged. Appellant was accorded all 

rights and protections required by law. 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

 Affirmed.