FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MICHAEL JAY SMITH    KAREN M. FREEMAN-WILSON
Wabash, Indiana    Attorney General of Indiana

CHRISTOPHER L. LAFUSE
Deputy Attorney General
Indianapolis, Indiana


IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF B.D.T.,                 )
A Child Alleged to be a Delinquent Child,     )
                                              )
Appellant-Respondent,                         )
                                              )
vs.                                           )    No. 85A04-0005-JV-212
                                              )
STATE OF INDIANA,                             )
                                              )
Appellee-Petitioner.                          )


APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Daniel J. Vanderpool, Judge
Cause No. 85C01-9902-JD-15



November 22, 2000

OPINION - FOR PUBLICATION



RILEY, Judge

STATEMENT OF THE CASE

    Appellant-Respondent, B.D.T., appeals an adjudication finding him to be a delinquent child for committing sexual battery, Ind. Code § 35-41-1-16, an act which would be a Class D felony if committed by an adult.
    Judgment vacated.
ISSUES

    B.D.T. raises two issues on appeal, one of which we find dispositive See footnote : whether the juvenile court had jurisdiction over a 16-year old juvenile who was alleged to have committed criminal deviate conduct.
FACTS AND PROCEDURAL HISTORY

    On August 1, 1998, M.F., age 15, went to her stepsister’s house to get ready to watch a parade. While at the house, M.F.’s stepbrother, B.D.T., age 16, took her shoe and threw it in his bedroom. M.F. went into B.D.T.’s bedroom to retrieve her shoe. B.D.T. followed her into the room and shut the door. M.F. testified that B.D.T. “wanted to kiss me and I said ‘No.’” (R. 173). M.F. further testified that B.D.T. kissed her regardless of her saying “No.” At some point, the bedroom door became jammed. B.D.T. and M.F. realized that they could not get out of the room. M.F. testified that, while locked in the bedroom, B.D.T. “began to touch me … he put his hands up my shirt … and down my pants. (R. 176). When asked “were you able to get him to stop at some point,” M.F. replied “No. I asked him to, but he wouldn’t stop.” (R. 176).
    B.D.T. was charged with criminal deviate conduct, Ind. Code § 35-42-4-2, an act which would be a Class B felony if committed by an adult. On October 13, 1999, the juvenile court found that B.D.T. was not a delinquent child by reason of the offense of criminal deviate conduct. Rather, the juvenile court found that B.D.T. was a delinquent child by reason of the offense of sexual battery as an included offense to the charged crime of criminal deviate conduct. On November 15, 1999, the juvenile court ordered B.D.T. to serve 14 days in the Wabash County Jail upon turning age 18 and ordered that he have no contact with M.F. On December 15, 1999, B.D.T. filed a motion to correct errors. The motion was denied on February 7, 2000. B.D.T. now appeals.
DISCUSSION AND DECISION

    B.D.T. argues that the juvenile court committed fundamental error in failing to transfer jurisdiction of the case to the criminal docket because he was charged with the offense of criminal deviate conduct. We agree.
Ind. Code § 31-30-1-4 states in pertinent part that:
(a) The juvenile court does not have jurisdiction over an individual for an alleged violation of:
* * *

(4) IC 35-42-4-2 (criminal deviate conduct);
* * *

if the individual was at least sixteen (16) years of age at the time of the alleged violation.

(b) Once an individual described in subsection (a) has been charged with any crime listed in subsection (a)(1) through (a)(15), the court having adult criminal jurisdiction shall retain jurisdiction over the case even if the individual pleads guilty to or is convicted of a lesser included offense. A plea of guilty to or a conviction of a lesser included offense does not vest jurisdiction in the juvenile court.

B.D.T. was charged with criminal deviate conduct, which is an offense listed in the above statute. B.D.T. was adjudged a delinquent child by reason of the offense of sexual battery as an included offense to the charged crime of criminal deviate conduct. On the date of the alleged offense, B.D.T. was 16-years old.
A judgment made when the court lacks subject matter jurisdiction is void. Clark v. State, 727 N.E.2d 18, 20 (Ind. Ct. App. 2000).
Jurisdiction is the legal power to entertain any matter or proceeding, and the power to act must be derived from the Constitution or from some statute. Jurisdiction, in this state, embraces three essential elements: (1) jurisdiction of the subject matter, (2) jurisdiction of the person, and (3) jurisdiction of the particular case. Subject matter jurisdiction concerns whether or not the particular court has jurisdiction over the general class of actions to which the particular case belongs. Subject matter jurisdiction must be derived from the Constitution or a statute and cannot be conferred by the consent or agreement of the parties. Neither can an objection to subject matter jurisdiction be waived.

Twyman v. State, 459 N.E.2d 705, 707 (Ind. 1984) (citations omitted).
    Because B.D.T. was 16-years old when the alleged offense occurred, the juvenile court, by Ind. Code § 31-30-1-4, lacked the requisite subject-matter jurisdiction to hear his case. Consequently, the juvenile court’s judgment is void. Therefore, the juvenile court’s judgment is vacated.
B.D.T. also argues that jeopardy having attached, the case against him should be dismissed. The State acknowledges that the juvenile court did not have jurisdiction over B.D.T.’s case. However, the State maintains that B.D.T. was not placed in jeopardy, because “‘[a]n accused is not put in jeopardy by a judgment of conviction which is void for lack of jurisdiction. When discharged thereunder he may again be arrested and prosecuted on the original indictment.’” Majors v. State, 252 Ind. 672, 677, 251 N.E.2d 571, 574 (1969) (quoting Slack v. Grigsby, 229 Ind. 335, 97 N.E.2d 145, 148 (1951)).
    In United States v. Ball, 163 U.S. 662, 669 (1896), the United States Supreme Court held that “[a]n acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” Our state has accepted the general proposition that jeopardy does not attach to a judgment void for lack of jurisdiction. Majors, 251 N.E.2d at 574.
    Consequently, B.D.T. was not put in jeopardy by the juvenile court’s judgment, because the judgment is void.

CONCLUSION

    Based on the foregoing, we conclude that the juvenile court committed fundamental error in failing to transfer jurisdiction of B.D.T.’s case to the criminal docket.
    Judgment vacated.
BARNES, J., and BAILEY, J., concur.


Footnote: Because we find that the juvenile court lacked subject-matter jurisdiction, we refrain from discussing whether the juvenile court erred in finding that B.D.T. committed sexual battery as a lesser included offense of criminal deviate conduct.