Aye v. State

• Decision Date: 31 January 1973
• Docket Number: No. 301,301
• Citation: 299 A.2d 513,17 Md.App. 32
• Parties: Stanley Horace AYE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 32

17 Md.App. 32

299 A.2d 513

Stanley Horace AYE v. STATE of Maryland.

No. 301.

Court of Special Appeals of Maryland.

Jan. 31, 1973.

[299 A.2d 515] Gerald Adler, Glen Burnie, for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Domenic Iamele, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and CARTER and GILBERT, JJ.

ORTH, Chief Judge.

WAIVER OF JUVENILE JURISDICTION

(1)

A court conferred with jurisdiction in juvenile causes (juvenile court), see Code, Art. 26, § 51, may waive the exclusive jurisdiction over a delinquent child ¹ conferred

upon it by § 70-2 and, pursuant to § 70-16, may order the child held for trial under regular procedures of the court which would have jurisdiction over the offense if committed by an adult. It may do so upon a hearing ² at which the child is entitled to representation by counsel, § 70-18(d), after a petition has been filed alleging delinquency but before an adjudicatory hearing thereon, Matter of Brown, 13 Md.App.[299 A.2d 516] 625, 284 A.2d 441, after notice prescribed by Maryland Rule 911a. See § 70-16(a). We set all this out in Matter of Waters, 13 Md.App. 95, 97, 281 A.2d 560, and went no to discuss the factors to be considered by a juvenile court in making its determination whether to waive or not and the burden of proof required. Id. at 97-98, 281 A.2d 560. We further discussed factors relevant to a determination of waiver vel non and the procedure to be followed by a juvenile court in its consideration of the question in Matter of Ingram, 15 Md.App. 356, 291 A.2d 78. See Maryland Rule 911.

(2)

A court exercising criminal jurisdiction ordinarily has neither the right nor the power to try a child who is within the jurisdiction of a juvenile court and who has not been sent to it for trial by the juvenile court under the statutory waiver procedures. Franklin v. State, supra. Austin and Williams v. State, 12 Md.App. 629, 630-631, 280 A.2d 17. Nevertheless, there are certain types of proceedings involving a child in which the waiver of a juvenile court is not necessary in order to prosecute the child in a criminal action. This is so because a juvenile court does not have jurisdiction over those proceedings. See Bean v. State, 234 Md. 432, 199 A.2d 773; Briscoe v. Warden, 3 Md.App. 182, 238 A.2d 304.

A juvenile court has no jurisdiction over:

(1) a proceeding involving a child who has reached his 14th birthday, alleged to (2) a proceeding involving a child who has reached his 16th birthday, alleged to have done an act concerning the crime of robbery with a deadly weapon, § 70-2(d)(3),

have done an act which, if committed by an adult, would be a crime punishable by death ³, or life imprisonment (including a lesser offense or an offense arising out of an act alleged to have been committed), § 70-2(b)(1), or

unless the court exercising jurisdiction, believing a waiver of its jurisdiction to be in the interests of the child or society, orders the case transferred to the juvenile court, Code, Art. 27, § 594A;

(3) a proceeding involving a child who has reached his 16th birthday, alleged to have done an act in violation of Code, Art. 66 1/2, Title 'Vehicle Laws', or any other traffic law or ordance, other than:

(i) manslaughter by automobile,

(ii) possession of a stolen motor vehicle,

(iii) unauthorized use or occupancy of a motor vehicle,

(iv) tampering with a motor vehicle,

(v) driving a motor vehicle while, intoxicated, or while driving ability is impaired by consumption of alcohol, or while under the influence of drugs, § 70-2(d)(2).

There is an instance in which a juvenile court has exclusive jurisdiction over a child but is limited in its power to waive that jurisdiction. When a child has not reached his 14th birthday the juvenile court may waive its jurisdiction only when the child is charged with committing an act which, if committed by an adult, would be punishable by death, or life imprisonment, § 70-16(a). See note 3 supra.

(3)

An aggrieved party ⁴ may appeal to the Court of Special Appeals of Maryland from any final order of a juvenile court, § 70-25. Therefore, an order waiving jurisdiction may be so appealed because it is a final order, § 70-16(c). ⁵

We find it to be the clear statutory intent that an attack on an order of a juvenile court waiving its jurisdiction over a child be by appeal to this Court in the manner prescribed by the Maryland Rules for taking appeals. We have entertained such appeals. For the reasons given in our opinions, we affirmed the waiver order in Matter of Murphy, 15 Md.App. 434, 291 A.2d 867; Matter of Flowers, 13 Md.App. 414, 283 A.2d 430; Matter of Waters, supra; and Hazell v. State, 12 Md.App. 144, 277 A.2d 639. We reversed the waiver order in Matter of Ingram, supra, Matter of Toporzycki, supra, and Matter of Brown, 13 Md.App. 625, 284 A.2d 441.

Not only is an order of waiver a final order, but it terminates the jurisdiction of the juvenile court over the case, § 70-16(c). Jurisdiction over the person of the child then vests in the court having jurisdiction over the criminal offense with which that child is charged. ⁶

If an appeal is noted from an order of waiver in accordance with the Maryland Rules, the criminal court, pending the determination of the appeal has no jurisdiction over the case. This Court is then vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of the lower court with reference thereto are suspended. Thomas v. State, 10 Md.App. 458, 461, 271 A.2d 197. See Stacy v. Burke, 259 Md. 390, 401, 269 A.2d 837; Bullock v. Director, 231 Md. 629, 633, 190 A.2d 789 and cases there set out in note 3. This is so even though the general rule is that an appeal in a juvenile proceeding shall not stay the order, judgment, or decree appealed from. § 70-25. ⁷. We have construed a provision in the former law, Code, Art. 26, § 65, comparable in effect to the stay provision in the present law, as not contemplating an appeal from a waiver of jurisdiction as within its ambit. Thomas v. State, supra. We said, 10 Md.App. at 461, 271 A.2d at 199: 'To permit a child to be tried in the criminal court before a timely sought determination of the validity of a waiver giving that court jurisdiction was resolved on appellate review was not the legislative intent.' We pointed out the stay provision in the new law, § 70-25, in a footnote, note 6 at 461, and expressed our thought that the legislature did not contemplate that it affected an order waiving jurisdiction.

As we have indicated, a valid order of waiver terminates the jurisdiction of the juvenile court and vests jurisdiction over the person of the child in the criminal court having jurisdiction over the crime charged. The waiver shall be noted on the docket of the juvenile court and the clerk shall deliver a certificate of the waiver to 'As the law provided for a direct appeal * * * from an order of the juvenile court waiving jurisdiction, the only obligation of the criminal court when no appeal was taken from such order was to determine whether the waiver order was valid on its face. If so it need not look behind it.'

                the proper prosecuting authority.  Rule 911c.  The State's attorney shall immediately procure an indictment, or, where permitted,[299 A.2d 518]  shall prepare and file an information against the accused.  Rule 705.  8  Unless the authority over and control of the criminal case are suspended by an appeal to this Court from the order of waiver, the criminal court may, upon termination of the period within which such appeal may be filed, then proceed to hear, try and determine the case against the child.  At that point, if the order of waiver is valid on its face, it may not be otherwise challenged before the trial court.  We said in Thomas v. State,  supra, at 461, 271 A.2d at 199, decided under the law in effect prior to 1 June 1969
                

We affirmed our position in Wheeler v. State, 10 Md.App. 624, 272 A.2d 96, decided under the present law, enacted by ch. 432, Acts 1969. Indicating that the appeal provisions under the old law and the new law were comparable in their effect, we said, at 626-627, 272 A.2d at 98:

'Thus under the new law as under the old, if a direct appeal was not taken from the order waiving jurisdiction, the only obligation of the criminal court is to determine if the waiver order is valid on its face. If so it need not look If a waiver of jurisdiction is attacked pursuant to statutory requirements by a direct appeal thereform to this Court and found to be ineffective, no jurisdiction over the subject child is bestowed on the criminal court and jurisdiction remains in the juvenile court. Then the child shall not be prosecuted for criminal offense until the case is transferred to the criminal court by virtue of valid waiver proceedings. Code, Art. 26, § 70-16(d).

behind it and the child, the jurisdiction over whom has been waived by the juvenile court, may be properly tried under regular criminal procedures in the criminal court.'

If a waiver of jurisdiction is not challenged by direct appeal therefrom, but the order of waiver is invalid on its face, it ordinarily would be null and void and could, therefore, neither bestow jurisdiction on the criminal court nor divest the juvenile court of jurisdiction. In either case, when the order of waiver is reversed on direct appeal, or when it is invalid on its face, the general rule is that a criminal court would have no more right and power to try the child over whom the juvenile court had jurisdiction than it has when no waiver proceeding is conducted and no order of waiver entered. See Franklin v. State, supra, at 67 of Md., 285 A.2d 616. If the criminal court to which jurisdiction over a child had been waived by a juvenile court determines the order of waiver to be invalid on its face, it should refer...