MICHAEL DAVIS v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
AUGUST 25, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002860-MR
MICHAEL DAVIS
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 98-CR-00352
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING WITH DIRECTIONS
** ** ** ** **
BEFORE: JOHNSON, MCANULTY AND MILLER, JUDGES.
MILLER, JUDGE:
Michael Davis brings this appeal from a November
10, 1998, judgment of the Kenton Circuit Court.
We reverse and
remand with directions.
Davis was charged in the Juvenile Session of the Kenton
District Court with second-degree wanton endangerment (Kentucky
Revised Statutes (KRS) 508.070), first-degree trafficking in a
controlled substance (KRS 218A.1412), and resisting arrest (KRS
520.090).
The Commonwealth moved the district court to transfer
jurisdiction to the Kenton Circuit Court under KRS 635.020(3) and
KRS 640.010(2).
First, the Commonwealth argued that Davis was
eligible for transfer pursuant to KRS 635.020(3), which provides
for removal when a juvenile (1) has reached 16 years of age, (2)
is charged with a Class C or D felony, and (3) has on one prior
separate occasion been “convicted” as a public offender for a
felony offense.
It is undisputed that Davis was sixteen years of
age at the time of the offense and was charged with a Class C
felony.
The remaining element was whether Davis had a prior
felony offense within the meaning of KRS 635.020(3).
Davis’
record included a juvenile adjudication in 1997 for possession of
marijuana while in possession of a firearm.
KRS 218A.992.
KRS 218A.1422 and
The Commonwealth claimed that such juvenile
adjudication constituted a prior felony conviction within the
meaning of KRS 635.020(3).
Second, the Commonwealth maintained
that Davis met the requirements for transfer to circuit court as
a youthful offender pursuant to KRS 640.010(2).
The district court concluded that Davis was indeed
eligible for transfer under KRS 635.020(3). The court then
considered the factors of KRS 640.010(2) and determined that
Davis should be transferred to the circuit court.
In support
thereof, the court cited these factors: (1) the child’s prior
record; (2) the prospects of adequate protection of the public;
and (3) the likelihood of reasonable rehabilitation of the child
by use of procedures, service and facilities currently available
to the juvenile justice system.
KRS 640.010(2).
-2-
Subsequent to transfer, Davis was indicted by the
Kenton County Grand Jury on the charges of first-degree
trafficking in a controlled substance (KRS 218A.1412 and KRS
635.020) and tampering with physical evidence (KRS 524.100 and
KRS 635.020).
At a jury trial in October, 1998, he was found
guilty of these charges.
The circuit court sentenced Davis to
thirteen years' imprisonment.
This appeal followed.
Davis contends the circuit court did not have subject
matter jurisdiction.
Specifically, Davis maintains that his 1997
juvenile adjudication for possession of marijuana while in
possession of a firearm was improperly considered a prior felony
“conviction” under KRS 635.020(3).
Davis admits that the issue
was not brought to the attention of the district or circuit
courts.
Rather, he raises the issue of subject matter
jurisdiction for the first time on appeal.
The Commonwealth
urges this Court not to consider the jurisdictional issue as
Davis waived same in the lower courts.
We disagree.
KRS 610.010 places exclusive subject matter
jurisdiction over juvenile matters in the district court unless
otherwise exempted by KRS Chapters 600 to 645.
Thereunder, the
district court may validly waive jurisdiction to the circuit
court in accordance with statutory mandates.
In Schooley v.
Commonwealth, Ky. App., 556 S.W.2d 912, 915-916 (1977), the Court
recognized that “[c]ircuit courts also have general jurisdiction
to try juvenile felony offenders if there has been a valid
transfer order. . . .” (Emphasis added.)
-3-
Thus, it is axiomatic
that the circuit court's subject matter jurisdiction over a
juvenile matter is premised upon a valid transfer order from the
district court.
Without same, the circuit court is simply
without subject matter jurisdiction to hear “this kind of case”
-- juvenile matters.
Cf. Ducan v. O'Nan, Ky., 451 S.W.2d 626
(1970) (citing In Re Estate of Rougeron, 17 N.Y.2d 264, 217
N.E.2d 639 (1966).
In short, we are of the opinion the circuit court is
vested with subject matter jurisdiction over juvenile matters
only if there exists a valid transfer order from district court;
if no such valid transfer order exists, the circuit court simply
lacks subject matter jurisdiction.
In Hamilton v. Commonwealth, Ky., 534 S.W.2d 802
(1976), it was observed that an appellate court will consider
whether a waiver from juvenile court to circuit court was invalid
even if the issue had not been raised at trial.
Indeed, Ky. R.
Crim. P. 8.18 states that “the lack of jurisdiction . . . shall
be noticed by the court at any time during the proceedings.”
As
a valid transfer order is a priori to the circuit court's subject
matter jurisdiction, we do not think such issue was waived by
Davis' failure to argue same in the lower courts.
Hence, we now
address the validity of the district court's transfer order.
KRS 635.020(3) states as follows:
If a child charged with a Class C or Class D
felony has on one (1) prior separate occasion
been adjudicated a public offender for a
felony offense and had attained the age of
sixteen (16) at the time of the alleged
-4-
commission of the offense, the court shall,
upon motion of the county attorney made prior
to adjudication, and after the county
attorney has consulted with the
Commonwealth's attorney, that the child be
proceeded against as a youthful offender,
proceed in accordance with the provisions of
KRS 640.010.
Davis alleges that transfer under the above statute was improper
as he had no prior felony conviction.
The record reveals that
the Commonwealth utilized Davis' 1997 juvenile adjudication of
possession of marijuana while in possession of a firearm as the
prior felony conviction under KRS 635.020(3).
However, KRS
635.040 specifically mandates that “[n]o adjudication by a
juvenile session of district court shall be deemed a conviction
. . . .”
We view the language of KRS 635.040 as clear and
unambiguous.
The legislature clearly signaled its intent that
juvenile adjudications not be considered “convictions.”
Equally
clear is the language of KRS 635.020(3) requiring a juvenile to
be “convicted” of a prior felony to qualify for transfer status
thereunder.
Juxtaposing KRS 635.020(3) and KRS 635.040, our
conclusion is inescapable -- Davis' 1997 juvenile adjudication
cannot properly be considered a “conviction.”
Simply put, we do
not believe Davis was eligible for transfer as a juvenile
offender under KRS 635.020(3), thus rendering the district
court's transfer order invalid.
As such, the circuit court was
without subject matter jurisdiction.
We deem appellant's remaining contentions as moot.
-5-
For the foregoing reasons, the judgment of the Kenton
Circuit Court is reversed and this matter is remanded with
directions that the circuit court remand same to district court
for disposition consistent with this opinion.
MCANULTY, JUDGE, CONCURRING.
JOHNSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING: I respectfully dissent.
In
my opinion, the issue of whether Davis’ previous adjudication for
possession of marijuana was by virtue of the firearm possession
elevated to a felony conviction involved a jurisdictional element
that was necessary to establish subject-matter jurisdiction in
circuit court.
This jurisdictional element was required to be
found in order to support the transfer of the juvenile from
district court to circuit court.
For Davis to succeed in
defeating the finding of this jurisdictional element, he must
successfully attack the 1997 juvenile adjudication.
However,
since Davis failed to challenge the 1997 juvenile adjudication at
the trial level in the case sub judice, I do not believe that it
can now be attacked in this appeal.
Davis argues that since subject-matter jurisdiction may
be challenged at any time in a proceeding,1 his failure to raised
the issue before the circuit court does not prevent him from
1
Louisville & Nashville Railroad Co. v. Mottley, 211 U.S.
149, 154, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).
-6-
raising it on appeal.
I do not disagree with this basic tenet,
but as the often-cited case of Duncan v. O’Nan2 explains, there
is much more to be considered in the meaning of subject-matter
jurisdiction:
As we pointed out in Commonwealth Dept.
Of Highways v. Berryman (citation omitted):
“The word ‘jurisdiction’ is more easily used
than understood.” That case recognized the
general elementary principle that subjectmatter jurisdiction cannot be waived. A
party will not be estopped to show lack of
subject-matter jurisdiction at any time. The
parties may not confer subject-matter
jurisdiction by agreement. The problem,
however, is in delineating the concept
‘jurisdiction of the subject matter.’ Chief
Judge Desmond of the Court of Appeals of New
York undertook to do so in In Re Estate of
Rougeron, 17 N.Y.2d 264, 271, 270 N.Y. S.2d
578, 583, 217 N.E.2d 639, 643, in this
language:
“In other words the rule that
subject-matter jurisdiction cannot
be born of waiver, consent or
estoppel has to do with those
cases only where the court has not
been given any power to do
anything at all in such a case, as
where a tribunal vested with civil
competence attempts to convict a
citizen of a crime. In other
words, ‘subject matter’ does not
mean ‘this case’ but ‘this kind of
case.’”
. . .
The circuit court had general
jurisdiction of the subject matter. It had
the power to try this kind of case. A
jurisdictional element of this particular
case was a judgment complying with formal
requisites properly entered in county court.
2
Ky., 451 S.W.2d 626, 631-32 (1970).
-7-
. . .
Once it is understood that the circuit
court had subject-matter jurisdiction in the
pervasive sense and that the mechanics of
perfecting invocation of that jurisdiction
were jurisdictional elements, then the
emphasis shifts from a power concept to a
policy concept.3
As was stated in Schooley v. Commonwealth,4 “[c]ircuit
courts have general jurisdiction to try felony cases. . . [and]
to try juvenile felony offenders if there has been a valid
transfer order.”5
“The circuit court had general jurisdiction of
the subject matter.
It had the power to try this kind of case.”6
“[W]here a court has general jurisdiction of the subject matter,
a lack of jurisdiction of the particular case, as dependent upon
the existence of particular facts, may be waived.
Courts, § 109, p. 166.”
21 C.J.S.,
Accordingly, in my opinion, Davis has
failed to preserve this issue for appellate review.7
3
Duncan, supra at 631. Cf. Gordon v. NKC Hospitals, Inc,
Ky., 887 S.W.2d 360 (1994).
4
Ky.App., 556 S.W.2d 912 (1977).
5
Id. at 915-16.
6
Duncan, supra at 631.
7
Regional Jail Authority v. Tackett, Ky., 770 S.W.2d 225,
229 (1989).
-8-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy G. Arnold
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
