It would be difficult to conclude that when jurisdiction is modified by the terms "exclusive" and "original," it does not mean, at least in some respect, subject matter jurisdiction. Mother also asserts that the former version of ORS 419B.100(1), former ORS 419.476 (1991), repealed by Or. Laws 1993, ch. 33, § 373, and related case law, namely, State v. Scurlock , 286 Or. 277, 593 P.2d 1159 (1979), and Delaney v. State of Oregon , 58 Or. App. 442, 648 P.2d 1302 (1982), support her understanding of "exclusive original jurisdiction" for juvenile dependency proceedings. In 1993, the legislature reorganized the juvenile code into three chapters, ORS chapter 419A for general provisions and definitions, ORS chapter 419B for juvenile dependency, and ORS chapter 419C for juvenile delinquency.

In those cases [where the defendants were subject to adult court jurisdiction], the defendants had not been charged until after reaching the age of 18, although the acts were committed when they were 17. The rule is different, however, where the delay in charging a defendant is intentional. In State v. Scurlock, 286 Or 277, 593 P2d 1159 (1979), the district attorney had intentionally delayed bringing charges until after the defendant's 18th birthday in order to avoid the jurisdiction of the juvenile court. The Supreme Court, relying on [ former] ORS 419.573(1) [(1979), repealed by Or Laws 1993, ch 33, § 373], which provides that the jurisdiction of the juvenile court `shall attach from the time the child is taken into custody,' held that the legislature intended that the juvenile court, not the district attorney, determine whether an individual should be retained under juvenile court jurisdiction or remanded to an adult court. It held that exclusive jurisdiction in that case lay in the juvenile court, because the defendant would have been taken into custody before reaching age 18 if the district attorney had acted in accordance with that policy.

In those cases, the defendants had not been charged until after reaching the age of 18, although the acts were committed when they were 17. The rule is different, however, where the delay in charging a defendant is intentional. In State v. Scurlock, 286 Or. 277, 593 P.2d 1159 (1979), the district attorney had intentionally delayed bringing charges until after the defendant's 18th birthday in order to avoid the jurisdiction of the juvenile court. The Supreme Court, relying on ORS 419.573(1), which provides that the jurisdiction of the juvenile court "shall attach from the time the child is taken into custody," held that the legislature intended that the juvenile court, not the district attorney, determine whether an individual should be retained under juvenile court jurisdiction or remanded to an adult court. It held that exclusive jurisdiction in that case lay in the juvenile court, because the defendant would have been taken into custody before reaching age 18 if the district attorney had acted in accordance with that policy.

In other words, this court necessarily concluded that the allegations of the indictment were sufficient to bring the case within the exclusive subject matter jurisdiction of the juvenile court. We reached a similar conclusion in State v. Scurlock , 286 Or. 277, 279, 593 P.2d 1159 (1979), in which the district attorney indicted an 18-year old for first-degree assault after intentional delay in pursuing allegations of criminal conduct related to a motor vehicle collision that occurred when the individual was under 18. Without any determination on the merits of the criminal allegations against the individual, the circuit court concluded that the matter fell within the juvenile court's exclusive original jurisdiction and dismissed the indictment.

As a rule, if a person is over age 18 when he or she is charged with a criminal offense, that person will be tried as an adult. See State v. Scurlock, 286 Or. 277, 282-83, 593 P.2d 1159 (1979). That is true even if the person committed the charged offense before he or she turned 18.

As a general rule, if a person is over 18 when he or she is charged with a criminal offense, that person will be tried as an adult. See State v. Scurlock, 286 Or. 277, 282-83, 593 P.2d 1159 (1979). That is true even if the person committed the charged offense before he or she became 18. State v. Watchman, 20 Or. App. 709, 711, 533 P.2d 361 (1975).

Defendant contends that the lapse of time between the initial investigation and the indictment prejudiced his ability to formulate a defense and to locate exculpatory witnesses. He makes those contentions, even though he was indicted within the period of limitations and even though he concedes that "the primary guarantee against bringing overly stale criminal charges is [the] [S]tatute of [L]imitations." See State v. Serrel, supra, 265 Or at 219; State v. Scurlock, 286 Or. 277, 282 n 4, 593 P.2d 1159 (1979). Nonetheless, he argues that his rights under the Due Process Clauses of the Fifth and Fourteenth Amendments were violated by the delay.

Assuming, on the other hand, that the petition was never considered on the merits, we conclude nonetheless that the state cannot circumvent juvenile court jurisdiction by indicting defendant in circuit court after its motions to remand had twice been denied. The Supreme Court recently addressed a similar question in State v. Scurlock, 286 Or. 277, 593 P.2d 1159 (1979), which controls our decision in this case. There, defendant allegedly committed an assault three months after his 17th birthday.

Adult courts lack subject matter jurisdiction over offenses committed by juveniles unless the jurisdiction of the juvenile court has been waived in a due process hearing. In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 1445-46, 18 L.Ed.2d 527 (1967); State v. Scurlock, 286 Or. 277, 593 P.2d 1159 (1979); Delaney v. State, 58 Or.App. 442, 648 P.2d 1302 (1982); Brady v. Gladden, 232 Or. 165, 374 P.2d 452 (1962). The record in this case discloses no such hearing.

The Court of Appeals chose to consider the constitutional theory first, contrary to the long-established rule that there is no occasion to decide whether the state's law violates the constitution until it is determined that the state's law in fact denies the claimed right. See, e.g., Planned Parenthood Association, Inc. v. Department of Human Resources of the State of Oregon, 297 Or. 562, 687 P.2d 785 (1984); State v. Spada, 286 Or. 305, 309, 594 P.2d 815 (1979); State v. Scurlock, 286 Or. 277, 281, 593 P.2d 1159 (1979). This led the Court of Appeals into the labyrinth of "police power" doctrine and the conditions under which damage or destruction of private property for public purposes may become a compensable "taking."