Mario Ballard, s/k/a Mario Maurice Ballard v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Lemons∗
Argued at Chesapeake, Virginia
MARIO BALLARD, S/K/A
MARIO MAURICE BALLARD
MEMORANDUM OPINION∗∗ BY
v. 	Record No. 0075-99-1 	JUDGE DONALD W. LEMONS
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
(David B. Olson; Cope, Olson & Yoffy, P.L.C.,
on brief), for appellant. 	Appellant
submitting on brief.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
∗ Justice Lemons prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the
Supreme Court of Virginia.
∗∗ Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On June 3, 1997, petitions were issued by the Juvenile and
Domestic Relations District Court of the City of Newport News
charging appellant with four felonies: 	two counts of robbery
and two counts of use of a firearm in the commission of a
robbery. 	The felonies were alleged to have occurred on May 3,
1997. 	The Commonwealth filed a notice of intent to certify the

robbery charges and the ancillary firearm charges pursuant to
Code § 16.1-269.1(C).
On September 24, 1997, the juvenile court, pursuant to Code
§ 16.1-263(E)(2), certified that the location or mailing address
of Ballard's father was not reasonably ascertainable. 	The
matter was continued and on October 17, 1997, after posted
service on Ballard's mother, who failed to appear, the juvenile
court found probable cause that Ballard committed the offenses,
that he was 14 years of age or older at the time of the alleged
offenses, that proper notice had been given, and certified the
charges to the grand jury. 	Ballard's legal guardian, his aunt
Sarah Aytch, was notified and present during the proceedings.
On June 3, 1998, the defendant was arraigned, waived his
right to trial by jury and was convicted in the Circuit Court of
the City of Newport New of all four offenses. 	Ballard maintains
on appeal that because his father was not served with process in
the juvenile court proceeding, the circuit court lacked
jurisdiction to hear the matter upon transfer from the juvenile
court.
The Supreme Court of Virginia recently decided the case of
Moore v. Commonwealth, 259 Va. ___, ___ S.E.2d ___ (2000) (No.
990776) and noted,
[s]ince the defendant committed the
. . . offenses after July 1, 1996, the
provisions of Code § 16.1-269.1(E) are
applicable to the resolution of his case
. . . . 	[T]hat section provides in relevant
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part: 	"An indictment in the circuit court
cures any error or defect in any proceeding
held in the juvenile court except with
respect to the juvenile's age." 	Under the
plain language of this statute, an
indictment by a grand jury cures any defect
or error, except one regarding a juvenile's
age, which has occurred in any juvenile
court proceeding.
Id. at ___, ___ S.E.2d at ___.
Consequently, any defect that may have occurred in
Ballard's transfer proceedings in the juvenile and domestic
relations district court was cured by his indictment in the
circuit court.
Finding no error, the convictions are affirmed.
Affirmed.
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