State v. Keys

                                       514

       Argued and submitted July 30, 2018, reversed February 26, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    CLIFFORD DARRELL KEYS,
                        Defendant-Appellant.
                     Marion County Circuit Court
                        16CR24492; A163519
                                  

    Defendant appeals a judgment of conviction for felony possession of methamphetamine. On appeal, defendant argues that his conviction is void. Defendant
contends that the trial court lacked jurisdiction to enter the felony conviction
because defendant was charged by information rather than indictment, he did
not have a preliminary hearing, and he did not knowingly waive his right to
indictment or a preliminary hearing. Held: Defendant was charged by information in the absence of a preliminary hearing and did not knowingly waive his
right to indictment or a preliminary hearing. The trial court therefore never
obtained jurisdiction to try defendant for the crime with which he had been
charged or to enter a conviction on that charge. Parties cannot stipulate to that
kind of jurisdiction or waive objection to its absence. To the extent that Barnes v.
Cupp, 

, 

, rev den, 

 (1980), cert den, 

 (1981), suggests otherwise, it is overruled. Accordingly, the trial court erred
when it entered the judgment of conviction.
    Reversed.



    Sean E. Armstrong, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jamie Contreras, Assistant Attorney General, argued the
cause for respondent. Ellen F. Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General, and Rolf C. Moan,
Assistant Attorney General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
    HADLOCK, J. pro tempore.
    Reversed.
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           HADLOCK, J. pro tempore
         Defendant appeals a conviction for unlawful possession of methamphetamine, a felony, arguing that his
conviction is void. Specifically, defendant contends that the
trial court lacked jurisdiction to enter the felony conviction
because defendant was charged by information and was not
indicted, he did not have a preliminary hearing, and he did
not knowingly waive his right to indictment or preliminary
hearing. We agree with defendant and, therefore, reverse.1
         The pertinent facts are procedural and undisputed.
Defendant was arrested for possession of methamphetamine in violation of ORS 475.894, and an information was
filed charging him with that felony crime. At defendant’s
arraignment, the court greeted defendant and stated that it
was “going to be appointing [a particular lawyer] to be your
attorney and she is going to assist you with this arraignment this morning.” The lawyer and defendant had a brief
interaction, which was transcribed, after which the lawyer
purported to waive defendant’s right to a pretrial hearing:
         “[DEFENSE COUNSEL]: Good morning, Mr. Keys.
    … I’m going to represent you in this matter. Is this a correct spelling of your name?
        “THE DEFENDANT: Yes, it is.
       “[DEFENSE COUNSEL]:                   And were you born on [a
    particular date]?
        “THE DEFENDANT: Yes, I was.
        “[DEFENSE COUNSEL]: We will acknowledge receipt
    of the Information, waive any further reading or advice of
    rights. His name and date of birth are correctly set out on
    that document. We are prepared to waive preliminary hearing at this time, reserving the right to assert that in the
    future should that become necessary.”

(Emphasis added.)
     1
       This opinion overrules existing Court of Appeals precedent. The panel specifically advised all members of the court of the effect of its decision, but neither
the chief judge nor a majority of the regularly elected or appointed judges referred
the cause to be considered by the en banc court pursuant to ORS 2.570(5).
516                                                              State v. Keys

         Defendant asserts, and the state does not contest,
that the transcript shows that neither the court nor defense
counsel explained the purpose or benefits of a preliminary
hearing to defendant at the April hearing. Defendant also
notes that neither the court nor defense counsel confirmed
that defendant understood what rights were being waived on
his behalf. After a series of status conferences and a hearing
on a suppression motion, which the court denied, defendant
waived his right to a jury trial and the court convicted him
on stipulated facts.2
         On appeal, defendant argues that the trial court
lacked jurisdiction to enter the judgment of conviction “[i]n
the absence of an indictment, a preliminary hearing, or
the defendant’s knowing, intentional, and personal waiver
of indictment or preliminary hearing.” Defendant relies on
Article VII (Amended), section 5, of the Oregon Constitution,
which provides that a person may be charged with a felony
only by indictment or a finding of probable cause following a
preliminary hearing before a magistrate, unless the defendant knowingly waives the right to those procedures.3 He
also relies on Huffman v. Alexander, 

, 

 (1952), reh’g den, 

 (1953), in which the court,
relying on an analogous then-applicable constitutional provision, held that, absent an indictment or valid waiver of
indictment in a criminal case, any resulting conviction is
void.4
    2
      Defendant has not assigned error to the denial of his suppression motion.
    3
      The current version of Article VII (Amended), section 5, was enacted in
1974 following a legislative referral. See State v. Reinke, 

, 

, adh’d to as modified on recons, 

 (2013) (discussing history of the
constitutional provision). It provides, in pertinent part:
         “(3) Except as provided in subsections (4) and (5) of this section, a person
    shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.
         “(4) The district attorney may charge a person on an information filed in
    circuit court of a crime punishable as a felony if the person appears before the
    judge of the circuit court and knowingly waives indictment.
         “(5) The district attorney may charge a person on an information filed in
    circuit court if, after a preliminary hearing before a magistrate, the person
    has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it,
    or if the person knowingly waives preliminary hearing.”
    4
      Huffman was decided under Article VII (Original), section 18, of the
Oregon Constitution, which provided that no person could be charged with “any
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         The state’s responsive argument is narrow. Significantly, the state does not contend that, under the circumstances, defense counsel’s purported waiver of preliminary
hearing was effective for purposes of Article VII (Amended),
section 5. Indeed, that would be a challenging argument to
make, given that counsel purported to waive her client’s constitutional right without having advised or consulted him on
the point. Under the circumstances—and in the absence of
any argument from the state that counsel’s waiver had legal
effect—we, like the parties, base our analysis on an understanding that counsel’s purported waiver did not constitute
a “knowing” waiver by defendant for purposes of Article VII
(Amended), section 5.
         In arguing that the court had jurisdiction to enter
the judgment in this case despite the lack of an express
waiver of indictment or preliminary hearing, the state
acknowledges—and does not challenge—Huffman’s holding that “judgment rendered upon an information without
waiver of indictment would be void.” 

. Instead,
the state relies on State v. Sheppard, 

,

 (1978), rev den, 

 (1979), in which we
(1) rejected an argument that a circuit court lacked jurisdiction in a felony case in which the defendant had had a
preliminary hearing on the original information, but there
was no preliminary hearing on a later, second information,
and (2) held that the defendant waived any nonjurisdictional
objection to the absence of a preliminary hearing on the second information when he entered his plea. The state asserts
that Sheppard stands for the proposition that any error in
proceeding in the absence of indictment, preliminary hearing, or express waiver is not a jurisdictional error. Moreover,
the state contends, Sheppard establishes that defendant did
waive his rights to indictment or preliminary hearing when
he entered a not-guilty plea and “submitt[ed] to the subsequent trial without making any objection, despite having
the assistance of counsel throughout.”

crime or misdemeanor … except upon indictment found by a grand jury;
… provided further, however, that if any person appear before any judge of
the circuit court and waive indictment, such person may be charged in such
court with any such crime or misdemeanor on information filed by the district
attorney.”
518                                                           State v. Keys

         Our evaluation of the parties’ arguments starts
with the Oregon Constitution, which gives circuit courts
“subject matter jurisdiction over all actions unless a statute
or rule of law divests them of jurisdiction.” State v. Terry, 

, 

 (2001), cert den, 

 (2002);
see Or Const, Art VII (Original), § 9 (“All judicial power,
authority, and jurisdiction not vested by this Constitution,
or by laws consistent therewith, exclusively in some other
Court shall belong to the Circuit Courts[.]”); Or Const, Art
VII (Amended), § 2 (“The courts, jurisdiction, and judicial
system of Oregon, except so far as expressly changed by
this amendment, shall remain as present constituted until
otherwise provided by law.”). Thus, the circuit courts have
subject matter jurisdiction over all criminal matters except
to the extent that “a statute or rule of law” provides otherwise, somehow limiting or constraining the courts’ jurisdiction. Terry, 

.
         Defendant essentially contends that, as pertinent
here, Article VII (Amended), section 5, of the Oregon
Constitution sets out such a limiting “rule of law.” It provides
that a person may be charged with a felony only upon indictment, on an information if a preliminary hearing results
in a probable cause determination, or on the defendant’s
knowing waiver of the indictment or preliminary hearing.
Or Const, Art VII (Amended), § 5(3), (4), (5). “Thus, absent
a waiver, the state cannot charge a defendant with a felony
unless persons outside the office of the prosecutor—either
grand jurors, in the context of an indictment, or a magistrate, in the context of an information—determine that the
state has probable cause to move forward with that charge.”
State v. Kuznetsov, 

, 

 (2008).
         Defendant asserts that, in Huffman, the Supreme
Court held that a court lacks jurisdiction to try a defendant
on criminal charges when the defendant was not indicted
and did not validly waive indictment.5 Indeed, the Huffman
court described its task in just those terms: “Our first question is whether an Oregon court has jurisdiction to try a
    5
      As noted, Huffman was decided under Article VII (Original), section 18, of
the Oregon Constitution, which did not provide for preliminary hearings. See 302
Or App at 516 n 4.
Cite as 

 (2020)                                               519

defendant on an information in the absence of a waiver of
indictment.” 

. The Huffman defendant had
signed a waiver of indictment and later pleaded guilty to
“larceny by bailee,” but he contended in subsequent habeas
corpus proceedings that his waiver had been obtained
through false representations, that he had not understood
the meaning of the paper when he signed it, and that he had
never intended to waive indictment. 

. The court
undertook to determine what the effect would be if, in fact,
the waiver had not been valid.
        The court cited with approval United States Supreme
Court cases that discussed the significance of the Fifth
Amendment grand jury requirement and described the
absence of an indictment as depriving a court of jurisdiction:6
    “ ‘It is of no avail, under such circumstances [where an
    indictment was changed without resubmission to a grand
    jury] to say that the court still has jurisdiction of the person and of the crime, for, though it has possession of the
    person, and would have jurisdiction of the crime, if it were
    properly presented by indictment, the jurisdiction of the
    offense is gone, and the court has no right to proceed any
    further in the progress of the case for want of an indictment. If there is nothing before the court which the prisoner, in the language of the Constitution, can be “held to
    answer,” he is then entitled to be discharged so far as the
    offense originally presented to the court by the indictment
    is concerned.’ ”
Huffman, 

 (quoting Ex parte Bain, 

, 

, 

 (1887) (emphasis added));7 see 

at 300-01 (citing additional cases).
    6
      The Fifth Amendment to the United States Constitution provides, in part:
“No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury ….”
    7
      The Court has overruled Ex parte Bain, characterizing that case as having
involved a “defective” indictment (one that had been amended without resubmission to a grand jury), not an absence of indictment. United States v. Cotton, 

, 

, 

 (2002). Under Cotton, “defects
in an indictment do not deprive a court of its power to adjudicate a case.” 

. The overruling of Ex parte Bain does not affect our analysis. Huffman was
decided under the Oregon Constitution, not the federal constitution, and it did
not involve a mere “defect” in an indictment. In any event, as discussed later
in this opinion, the Oregon Supreme Court has also recognized a distinction
between defective indictments and an absence of indictment that, at bottom, is
consistent with Cotton.
520                                               State v. Keys

         Huffman held that “the same rule must be applied
under Article VII [(Original)], section 18 of the Oregon
constitution.” Id. at 301. Thus, “unless a defendant validly
waives indictment he cannot be tried upon information filed
by the district attorney” and, significantly, any “judgment
rendered upon an information without waiver of indictment would be void.” Id. After considering the complexities
of then-applicable habeas corpus procedures, the court held
that the defendant (petitioner in habeas corpus) should have
had an opportunity to establish that his waiver had not been
“valid” because it was not voluntarily or understandingly
made. Id. at 322.
          Thus, Huffman holds that a court lacks “jurisdiction” over an “offense” when there has been no indictment
and the defendant has not voluntarily and knowingly waived
indictment. The difficulty is trying to discern what, exactly,
the court meant by the term “jurisdiction” in that context (or,
more precisely, what the Huffman court thought the federal
courts had meant when they used that term in the cases on
which Huffman relied). The opinion is not drafted in terms
of “subject matter jurisdiction” as we generally understand
that principle. So, we are left to ask, did Huffman conceive
of “jurisdiction” in something like the “subject matter jurisdiction” sense—meaning that a circuit court would lack
jurisdiction to try a defendant for an “offense” or to enter
a conviction at all in the absence of indictment or waiver,
and that a defendant may raise that lack of jurisdiction
on appeal, despite having failed to alert the court below?
See State v. Miller, 

, 

 (2018)
(“[T]he question of the court’s subject-matter jurisdiction can
be raised at any time, even for the first time on appeal[.]”).
Conversely, did Huffman use the term “jurisdiction” more
loosely, referring simply to a court’s lack of authority to enter
a judgment in the absence of indictment or waiver—a lack
of authority to which a defendant could waive objection by
allowing the case to proceed to trial or entry of a guilty plea,
resulting in the defendant’s inability to raise the issue on
appeal? Cf. State v. Molette, 

, 

, rev den, 

 (2013) (declining to address unpreserved argument that trial court lacked statutory authority
to impose a particular sentence).
Cite as 

 (2020)                                521

          Huffman itself does not provide a completely clear
answer to that question. The court’s use of the word “void”
(to describe a judgment rendered in the absence of indictment or waiver) is evocative, although the court suggested
that the “voidness” of the conviction may result from something other than a lack of subject matter jurisdiction. See
Huffman, 

 (suggesting that, in some circumstances (not necessarily those involved in Huffman), a judgment will be “void, even though the court had jurisdiction,
in the narrow sense, over person and subject matter at the
inception of the proceedings”). And the opinion relies in part
on cases and treatises that discuss a type of “jurisdiction”
or judicial authority that differs from either subject matter
jurisdiction or personal jurisdiction. See 

 (differentiating “ ‘jurisdiction to render the particular judgment
assailed’ ” from subject-matter and personal jurisdiction)
(quoting Garner v. Alexander, 

, 

(1941), cert den, 

 (1942) (Garner quoting Forest
G. Ferris, The Law of Extraordinary Legal Remedies § 18,
36 (1926))); id. at 299-300 (explaining that “ ‘if the crime of
which the defendant has been convicted is one for which
he could be held to answer only upon the presentment or
indictment of a grand jury, and he has not been indicted or
presented, his conviction is void, and he may be released on
habeas corpus’ ”) (quoting Habeas Corpus, 25 Am Jur § 38
at 171 (1936)); id. at 309 (stating that “ ‘jurisdiction of the
person and the subject matter is not alone conclusive, but
… the jurisdiction of the court to make or render the order
or judgment that serves as the basis of the imprisonment
is a proper subject of inquiry’ ” in habeas corpus and that,
“ ‘[a]ccording to this view, if jurisdiction is lacking in respect
of any one of these essentials, the judgment is fatally defective and open to collateral attack’ ”) (quoting Habeas Corpus,
25 Am Jur § 27 at 161 (1936)).
         Post-Huffman cases do not provide complete clarity,
either. In one post-conviction case, we held, citing Huffman,
that the absence of an indictment or valid waiver would mean
not only that a resulting conviction would be void, but that
the circuit court would have lacked jurisdiction to act in
the criminal case “at all.” Brady v. Calloway, 

, 

 (1972) (holding that, if a post-conviction
522                                              State v. Keys

court determined that the petitioner had not been competent to waive indictment, then relief would be “vacation of
the judgment of conviction and dismissal of the complaint”
because the “jurisdiction of the court to have acted at all in
the [criminal] matter” depended on the existence of a valid
waiver, in the absence of indictment). However, in another
post-conviction case decided only a few years later, we held
that the lack of indictment, preliminary hearing, or waiver
did not render the underlying judgment of conviction void,
because “[w]hatever adverse impact failure to hold a preliminary hearing might have had in this case was removed by
petitioner’s plea of guilty” and the petitioner had not alleged
that police lacked probable cause to hold him or that his decision to plead guilty was materially influenced by the lack of a
preliminary hearing. Barnes v. Cupp, 

, 

, rev den, 

 (1980), cert den, 

 (1981).
Barnes did not cite either Huffman or Brady. Sheppard, on
which the state relies, and which we discuss in greater detail
below, also did not cite either of those two cases.
         Statements in more recent cases, although not
necessary to the holdings, provide some help. In Terry, the
Supreme Court considered the effect of a deficiency in an
indictment. In that case, the defendant had been convicted
of aggravated murder and sentenced to death. Terry, 

. He argued in the Supreme Court that his death
sentence must be set aside because the indictment had not
alleged that he had acted “deliberately”—a point related to
the jury’s penalty-phase consideration. 

. The defendant contended “that the state’s failure to plead ‘deliberation’
in the indictment deprived the trial court of subject matter
jurisdiction.” 

. The Supreme Court disagreed, holding that, even if “deliberation” were an element of the crime,
its absence from the indictment would not deprive the circuit court of jurisdiction. 

. Broadly, the court
held that a defect in an indictment does not present a jurisdictional problem. 

; see also State v. Daniel, 

, 

 (2008) (under Terry, “a defect in
the indictment is not a jurisdictional error”).
        In reaching that conclusion, the Terry court discussed the meaning of subject matter jurisdiction and when
courts have such jurisdiction in criminal cases:
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 (2020)                                 523

       “Subject matter jurisdiction defines the scope of proceedings that may be heard by a particular court of law
   and is conferred by statute or the constitution. Under
   the Oregon Constitution, circuit courts have subject matter jurisdiction over all actions unless a statute or rule
   of law divests them of jurisdiction. See Or Const, Art VII
   (Amended), § 2 (not changing jurisdictional scheme set out
   in original Article VII); Or Const, Art VII (Original), § 9
   (all jurisdiction not vested by law in another court shall
   be vested in circuit courts). In particular, the Oregon
   Constitution states that, once a person has been indicted
   by a grand jury, that person can be charged ‘in a circuit
   court with the commission of any crime punishable as a
   felony.’ Or Const, Art VII (Amended), § 5(3). The trial court
   therefore had subject matter jurisdiction to try defendant
   for the crime of aggravated murder, even if the indictment
   arguabl[y] was defective.”

 (emphasis added; footnote and some citations
omitted).
         The emphasized part of the quoted excerpt from
Terry can fairly be read to mean that a circuit court obtains
jurisdiction to try a criminal defendant only “once [that] person has been indicted by a grand jury,” 

 given the structure of the paragraph in which the reference to indictment
is included. Indeed, we have interpreted Terry to mean just
that, citing it for the proposition that “subject matter jurisdiction in a criminal case attaches as a result of the issuance
of the indictment or information.” State v. Young, 

, 

, rev den, 

 (2003) (emphasis
added). See also Garner, 

 (“[T]he indictment
is a sufficient foundation for the jurisdiction of the court in
which it is returned, if jurisdiction otherwise exists”; errors
in the qualification of the grand jury that returned an indictment may have made the indictment “voidable,” but they did
not deprive the court of jurisdiction.).
         Reading Terry, Young, and Huffman and the pertinent constitutional provisions together, we draw the following conclusions. Circuit courts generally have subject matter jurisdiction over criminal cases. However, under Article
VII (Amended), section 5, a circuit court obtains jurisdiction to try or convict a defendant in a felony case only upon
524                                               State v. Keys

issuance of an indictment, an information supported by a
probable-cause determination made following preliminary
hearing, or the defendant’s knowing waiver of indictment or
preliminary hearing. Any defect in the indictment or information does not deprive the court of jurisdiction. However, in
the absence of indictment, preliminary hearing, or waiver,
the circuit court lacks jurisdiction to try the defendant and
any judgment rendered in that case is void. Whether or not
that particular type of jurisdiction is labeled “subject matter
jurisdiction,” it is the kind of jurisdiction that must exist for
a court to try or convict a defendant and, like the absence
of subject matter jurisdiction, its absence may be raised for
the first time on appeal. To the extent that Barnes suggests
otherwise, it is overruled.

         Sheppard, on which the state relies, does not alter
our conclusion. The Sheppard defendant initially was
charged with arson, under ORS 164.325, involving only
damage to property. 

. A preliminary hearing
was held and a finding of probable cause made; the defendant was then “bound over to the circuit court” from the district court. 

 A “second district attorney’s information” was
then filed in the circuit court, again charging arson under
ORS 164.325, this time based both on damage to property
and on recklessly placing individuals in danger of physical
injury. 

. The defendant was arraigned on the second
information but no second preliminary hearing was held.
Following presentation of the state’s case at trial, the defendant moved to dismiss on the ground that the court lacked
jurisdiction because of the absence of a preliminary hearing
on the second information. The court denied the motion and
the jury convicted on a lesser charge. 

         On appeal, the defendant argued that, “under the
provisions of Amended Art VII, § 5(5), Oregon Constitution,
the prosecutor must proceed to trial on the same charge on
which defendant was bound over to the circuit court by the
magistrate.” Id. at 71. The court did not decide that question, however, because it determined that the defendant’s
failure to object to the lack of a preliminary hearing on the
second information constituted a waiver. Id. The court noted
that the original information and the second information
Cite as 

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implicated different subsections of ORS 164.325 and raised
the possibility that “such a procedure” might “constitute[ ]
error.” Id. at 73. Even if that procedure was flawed, however,
the court concluded that defendant’s absence of objection to
it, along with his entry of a plea, constituted a waiver of
the need for a preliminary hearing on the second information. Id. The court then addressed the defendant’s argument
“that the alleged irregular procedure constitute[d] a jurisdictional defect which cannot be waived,” and it rejected
that argument without any discussion. Id.

         Given the brevity of the Sheppard court’s analysis,
along with its lack of citation to Huffman or Brady, its reasoning is difficult to discern. However, we find it significant
that the court discussed the procedural posture of the case
and the fact that a preliminary hearing had occurred on
the original information. Indeed, the court explained the
significance of such a preliminary hearing, that is, the magistrate’s determination that “there is a substantial objective basis for believing that more likely than not a crime
has been committed and that the defendant committed it.”
Id. at 72-73. The court also noted that, having determined
that probable cause existed, the magistrate was statutorily
required “to forward to the court, in which the defendant
would be triable [there, the circuit court], the information
holding the defendant for further proceedings.” Id. (emphasis added); see ORS 135.185 (1977) (providing that a magistrate who made a probable cause determination “shall make
a written order holding the defendant for further proceedings on the charge”); ORS 135.225 (1977) (providing that, in
those circumstances, the magistrate “shall at once forward
to the court in which the defendant would be triable” the
information and other materials).

         The Sheppard court’s emphasis of that statutory
process leads us to conclude that the court must have determined that the existence of the initial preliminary hearing
was enough to vest the circuit court with jurisdiction to try
the case, and that any flaw in not holding another preliminary hearing on the second information did not divest the
court of the jurisdiction it had already obtained. That is, it
seems that we necessarily conceived of proceedings on the
526                                                             State v. Keys

second information as “further proceedings” following the
initial probable-cause determination.8 Sheppard, 

. Viewed that way, the absence of a preliminary hearing
on the second information was akin to a defect in a charging
instrument, like the defective indictment in Daniel or the
allegedly defective indictment in Terry, rather than constituting the absence of an indictment or valid waiver of indictment, as in Huffman. And because a defect in a charging
instrument does not result in a lack of jurisdiction, the court
correctly concluded that reversal was not required, given
the defendant’s failure to raise the procedural defect in the
trial court (essentially, the defendant had failed to preserve
a challenge to a potential procedural problem that was not
jurisdictional in nature). At least, that reading of Sheppard
makes its holding consistent with Huffman, as well as Terry
and Young, and we therefore construe it that way.
         In this case, defendant was charged by information
in the absence of a preliminary hearing and did not knowingly waive his right to preliminary hearing or indictment.9
The trial court therefore never obtained jurisdiction to try
defendant for the crime with which he had been charged.
Because parties cannot stipulate to that kind of jurisdiction
or waive objection to its absence, we reject the state’s argument that defendant waived any objection by proceeding to
trial. The judgment of conviction is void.
     8
       That we conceived the circuit court process as “further proceedings” on the
original information is supported by a footnote in Sheppard, which notes that
the record in the case “does not expressly distinguish which information was the
subject of defendant’s plea” and that it was “counsel’s … argument” that made
it clear “that the plea was directed to the second information filed in the circuit
court.” 

 n 2.
     9
       In a footnote in its appeal brief, the state notes that three status conferences and a plea hearing were held but not transcribed for purposes of appeal. It
suggests that defendant “theoretically” might have waived his right to a preliminary hearing during one of those untranscribed hearings. We are not persuaded.
First, given that jurisdiction does not attach until there is an indictment, preliminary hearing, or knowing waiver, the state’s argument would not answer the
question of when, exactly, the court obtained jurisdiction (assuming that defendant expressed a knowing waiver during one of those hearings) and what the
significance would be of the court having acted without jurisdiction before that
point. Second, the trial court file includes notes from each of those untranscribed
hearings, and none of those notes mentions anything about defendant waiving
the right to preliminary hearing. We find it implausible to conclude that such
a matter of significance occurred, at hearings not meant to address that topic,
without any memorialization in the trial court file.
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 (2020)                              527

         We recognize the significance of this holding. It is
no small thing to hold that a conviction is void when the
defendant did not raise any objection to the lack of indictment or preliminary hearing during the months of trial proceedings and when, on appeal, the defendant has not challenged any of the trial court’s rulings or the sufficiency of
the evidence on which the conviction is based. But neither
is it a small thing for the government to proceed against a
person on a felony charge when nobody outside the executive branch has determined that there is probable cause to
believe that the person has committed the charged crime.
See Kuznetsov, 

 (“The constitutionally required
roles of the grand jury and the magistrate in felony cases
operate as a check on the power of the district attorney and
serve a critical function in protecting individual liberties.”).
We understand Huffman to signify that any resulting conviction is void despite the lack of objection below.
        Reversed.