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June 13, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Herbert B. Dixon, Jr., Motions Judge

Ferren and Terry, Associate Judges. Concurring opinion by Chief Judge Rogers.

The opinion of the court was delivered by: Ferren

Appellant challenges the trial court's denial of his motion to dismiss a misdemeanor charge for lack of jurisdiction or, in the alternative, to transfer the charge to the Family Division. On February 6, 1989, appellant was arrested on a misdemeanor cocaine possession charge, D.C. Code § 33-541 (d) (1988). On the same day he was also arrested -- pursuant to an outstanding warrant -- on a felony charge of assault with intent to murder while armed, D.C. Code §§ 22-503, -3202 (1989). *fn1 Appellant, a 17-year-old, argues that the Criminal Division does not have jurisdiction over his misdemeanor charge because, at the time of his arrest for cocaine possession, he was still a juvenile, subject to Family Division jurisdiction, despite the February 1, 1989, warrant for his arrest on the felony charge for which he would be triable as an adult.

According to D.C. Code § 16-2301 (3)(A)(i) (1989), once the United States Attorney has "charged" a defendant "who is sixteen years of age or older" with assault with intent to murder while armed, that defendant must be prosecuted as an adult for the charged felony and for all "subsequent delinquent act." D.C. Code § 16-2307 (h) (1989). The trial court ruled that the misdemeanor possession charge constituted a "subsequent delinquent act" within the meaning of § 16-2307 (h). Specifically, the court concluded, "based on the outstanding felony warrant dated February 1st, 1989, that there had been a complaint lodged" against appellant before he allegedly committed the misdemeanor offense on February 6, 1989. Appellant argues that the date of presentment in court, February 7, 1989, not the date of issuing the warrant, February 1, 1989, is the crucial time for § 16-2307 (h) purposes. He accordingly argues that because both the felony and the misdemeanor cases were presented in court the same day -- the day after he was arrested on both charges -- the misdemeanor cannot constitute a "subsequent delinquent act."

We agree with the trial court that the date on which appellant was "charged by the United States attorney" with the felony, see D.C. Code § 16-2301 (3)(A) (1989), was the date on which the Judge signed and filed the arrest "warrant" based upon a criminal "complaint" signed by a police officer and a supporting "affidavit" signed by the police officer and "approved" by an Assistant United States Attorney who has designated the felony to be charged. See Super. Ct. Crim. R. 4 (a). *fn2 For statutory purposes the "charge" was filed before the date appellant was presented in court. We therefore affirm the trial court's order and remand the case to the Criminal Division for trial.


On February 1, 1989, the court issued a warrant for the arrest of appellant -- who was then seventeen years old *fn3 -- for an assault with intent to commit murder while armed, allegedly committed on January 19, 1989. More specifically, the warrant was issued on the basis of a "complaint" and an "affidavit in support of an arrest warrant," see (supra) note 2, signed and approved on February 1, respectively, by Metropolitan Police Officer Lorren D. Leadmon and Assistant United States Attorney Sherri L. Berthrong. On the application for an arrest warrant at the bottom of the complaint form, see (supra) note 2, Ms. Berthrong had designated the charge of assault with intent to murder while armed. Judge Kramer signed the application, which commanded any authorized federal or local officer to bring the defendant before the court to answer the designated charge. Five days later, on February 6, 1989, appellant was arrested for possession of cocaine, an offense allegedly committed that same day. The next day, February 7, he was arraigned on the misdemeanor and presented on the felony in the Criminal Division. On August 22, 1989, Judge Dixon denied appellant's motion to dismiss the misdemeanor charge for lack of jurisdiction. Appellant filed a timely appeal two days later. *fn4


In general, the Family Division has jurisdiction over a juvenile who meets the statutory definition of a "child" under D.C. Code § 16-2301 (3) (1989). See D.C. Code §§ 16-2302, -2303 (1989). "Child" is defined as:

an individual who is under 18 years of age, except that the term "child" does not include an individual who is sixteen years of age or older and --

(A) charged by the United States attorney with (i) murder, forcible rape, burglary in the first degree, robbery while armed, or assault with intent to commit any such offense . . . .

D.C. Code § 16-2301 (3)(A)(i) (1989) (emphasis added). We have stated "that § 16-2301 (3)(A), by deeming an individual not to be a 'child' when certain serious offenses are charged, in effect has decreed, by operation of law, a 'transfer' of that individual to the Criminal Division. . . ." In re C.S., 384 A.2d 407, 409 (D.C. 1977) (emphasis added). Thus, we have equated the point at which "transfer" occurs (for juveniles age sixteen or over) with the point at which the individual is properly "charged" with one of the enumerated serious offenses. That definition is important for purposes of § 16-2307 (h), which provides that "transfer of a child for criminal prosecution terminates the jurisdiction of the Division over the child with respect to any subsequent delinquent act . . . ." D.C. Code § 16-2307 (h) (1989). As a result, the Criminal Division -- not the Family Division -- would have jurisdiction over Marrow's subsequent misdemeanor cocaine possession charge. *fn5

The question in this case, then, is when was appellant "charged by the United States attorney" with the felony of assault with intent to murder while armed: (1) when the criminal complaint, affidavit (showing the "charge" designated and "approved" by an Assistant United States Attorney), and warrant (based on probable cause) were signed by the Judge and filed in the warrant office, see (supra) note 2, or (2) when appellant was actually presented in court after arrest? Appellant argues for the latter interpretation. More precisely, appellant argues that because he was not "charged" with the felony until his assault case was presented in Superior Court on February 7, his misdemeanor cocaine offense and arrest of February 6 cannot be considered a "subsequent delinquent act."

Appellant cites In re M.R., 525 A.2d 614 (D.C. 1987) (per curiam), to support this proposition. We find no such support in M.R. To the contrary, our Discussion of when M.R. was criminally charged as a adult did not mention the dates on which M.R. had been arrested or his case had been presented in Superior Court. *fn6 Thus, M.R. provides no basis for claiming such dates have relevance.

Appellant's reliance on the time of presentment as the triggering event under ยง 16-2301 (3)(A) for subsequent delinquent acts appears to be rooted not in any statute but in (1) a concern that the accused receive notice at an adversarial hearing of the criminal charge before subsequent acts can be treated as criminal acts, and (2) a concern that the government sufficiently examine its decision to prosecute before criminal jurisdiction automatically attaches to subsequent acts. Both concerns, while ...

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