C. T. F., In Interest of

• Decision Date: 17 March 1982
• Docket Number: No. 66573,66573
• Citation: 316 N.W.2d 865
• Parties: In the Interest of C.T.F., A Child, Appellant.
• Court: Iowa Supreme Court

Page 865

316 N.W.2d 865

In the Interest of C.T.F., A Child, Appellant.

No. 66573.

Supreme Court of Iowa.

March 17, 1982.

James Prescott and Roy Schlachtenhaufen, Des Moines, of Polk County-Des Moines Offender Advocate Office, for appellant.

Thomas J. Miller, Atty. Gen., John G. Black, Sp. Asst. Atty. Gen., Brent D. Hege, Asst. Atty. Gen., Dan Johnston, Polk County Atty. and Rebecca Ann Belcher, Asst. Polk County Atty., for appellee.

Considered by UHLENHOPP, P. J., and McCORMICK, ALLBEE, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

The sole issue presented in this appeal is whether a juvenile has a statutory or constitutional right to a speedy trial in a juvenile delinquency proceeding. The juvenile court determined that a juvenile does not have a right to a speedy trial. We hold that a juvenile has a constitutional, but not a statutory, right to a speedy trial. Since the juvenile in this appeal failed to show that he was denied his constitutional right to a speedy trial, however, we affirm the juvenile court.

On July 1, 1980, a petition was filed alleging that on June 16, 1980, C.T.F., a juvenile, committed a delinquent act, second-degree burglary in violation of sections 713.1 and 713.3, The Code. On July 11, a deputy clerk of the juvenile court mailed an original notice, with an attached copy of the petition, to both the juvenile and his father. The notice stated that they would be notified at a later date of the time and place of the hearing on the petition. On July 17 the juvenile's father filed an application on behalf of the juvenile for appointment of counsel. On October 8 the juvenile court appointed the juvenile's present attorney to act as his attorney and guardian ad litem.

On October 11 the attorney filed a motion to dismiss the petition, alleging that the juvenile's right to a speedy trial under the federal and Iowa constitutions and Iowa R.Cr.P. 27(2)(b) had been abridged. On October 15 the juvenile court scheduled a hearing on the petition for November 7. Prior to the commencement of the hearing on the petition, the juvenile court orally overruled the motion to dismiss on the basis that a juvenile does not have a right to a speedy trial in a juvenile delinquency proceeding. No evidence was offered in support of the motion.

Following the hearing the juvenile court, by written order, found the evidence sufficient to establish that the juvenile had committed the delinquent act, as alleged in the petition. After a dispositional hearing, the court entered an order releasing the juvenile, subject to specified conditions of probation, into the custody of his father.

The juvenile filed a timely notice of appeal, asserting that the juvenile court erred in overruling his motion to dismiss. He contends: (1) the sixth amendment to the United States Constitution and article one, section ten of the Iowa Constitution provide juveniles the constitutional right to a speedy trial, and (2) Iowa R.Crim.P. 27(2)(b) and section 232.2(49), The Code, provide juveniles a statutory right to a speedy trial.

I. Statutory right to a speedy trial. The juvenile maintains that the filing of a petition charging a juvenile with commission of a delinquent act, see § 232.35, The Code, is tantamount to filing an indictment or trial information in a criminal prosecution. He argues that since the Juvenile Justice Act, ch. 232, The Code, does not establish a time limit for commencing the formal adjudicatory hearing to determine whether the juvenile committed the alleged delinquent act, it would be reasonable to adopt the speedy trial provisions of Iowa R.Crim.P. 27(2)(b). ¹ We disagree.

We have long recognized that a juvenile court proceeding is not a prosecution for crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution. State v. McGhee, 280 N.W.2d 436, 438 (Iowa 1979), cert. denied, 444 U.S. 1039, 100 S.Ct. 712, 62 L.Ed.2d 674 (1980); In re Johnson, 257 N.W.2d 47, 48 (Iowa 1977); State v. White, 223 N.W.2d 173, 175 (Iowa 1974). In McGhee and White juvenile defendants alleged violation of their right to a speedy indictment under section 795.1, The Code 1977 and 1971, respectively, current version at Iowa R.Crim.P. 27(2)(a), which provided in pertinent part: "When a person is held to answer for a public offense, if an indictment not be found against him within thirty days, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown." (Emphasis added). This court determined that section 795.1 was not applicable to a juvenile court proceeding. We held that since a juvenile proceeding was not a criminal prosecution, a juvenile was not "held to answer for a public offense" until the juvenile was transferred to the district court for prosecution as an adult. McGhee, 280 N.W.2d at 438; White, 223 N.W.2d at 175-76.

As a result of the enactment of the new Criminal Code, the provisions of section 795.1 are found in Iowa R.Crim.P. 27(2)(a). Rule 27(2)(a), by virtue of a 1980 amendment by this court, see 1980 Session, 68th G.A., ch. 1208, expressly provides that its speedy indictment requirements are inapplicable to juvenile court proceedings. ² It would therefore be inconsistent to hold that the speedy trial provisions of rule 27(2)(b) apply to such proceedings. Moreover, rule 27(2)(b) is applicable only when a defendant is "indicted for a public offense." See also Iowa R.Crim.P. 1(1) (delineating scope of rules of criminal procedure as "applicable to indictable offenses"). The filing of a petition accusing a juvenile of committing a delinquent act is not equivalent to indictment for a public offense in a criminal prosecution. A juvenile is not amenable to prosecution for a public offense under the provisions of the Criminal Code until it is ordered that the juvenile be transferred to the district court for prosecution as an adult. McGhee, 280 N.W.2d at 438-39; In re Johnson, 257 N.W.2d at 48-49. In addition, "delinquent act" is defined in relevant part as "[t]he violation of any state law or local ordinance which would constitute a public offense if committed by an adult." § 232.2(11)(a), The Code (emphasis added). Since a delinquent act does not constitute a public offense, we hold that rule 27(2)(b) does not provide a juvenile the right to a speedy trial in a juvenile court proceeding.

The juvenile also contends that section 232.2(49), The Code, provides the right to a speedy trial in a juvenile proceeding. This issue was not raised in the motion to dismiss, however. Therefore, error, if any, has not been preserved. We will not consider issues raised for the first time on appeal. In re Voeltz, 271 N.W.2d 719, 722 (Iowa 1978).

II. Constitutional right to a speedy trial. The sixth amendment to the United States Constitution provides in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial ...." Similarly, article one, section ten of the Iowa Constitution provides in part: "In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial ...." The juvenile contends that these provisions guarantee the right to a speedy trial in juvenile court proceedings.

Traditionally, juvenile delinquency proceedings were held to be special proceedings that were not subject to the provisions of either the state or federal constitutions; thus, juveniles did not enjoy the protection of constitutional rights applicable in criminal prosecutions of adults. E.g., Wissenburg v. Bradley, 209 Iowa 813, 816, 229 N.W. 205, 206-07 (1929). In 1967, however, the United States Supreme Court decided the landmark case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Court held that when delinquency proceedings may result in the detention of the child, the due process clause of the fourteenth amendment requires states to observe certain fundamental rights. The Gault Court found the following constitutional guarantees applicable in such proceedings: the right to written notice of the specific charge in advance of the hearing; notification of the right to counsel, and to appointed counsel in case of indigency; the privilege against self-incrimination; and the right to a hearing based on sworn testimony, with the corresponding right of cross-examination. Id. at 31-57, 87 S.Ct. at 1445-59, 18 L.Ed.2d at 548-63.

The Gault Court refrained from stating that all constitutional rights of an adult in a criminal prosecution are available to a juvenile in a delinquency proceeding, however. Instead, the Court prescribed a case-by-case determination of the applicability of constitutional rights available in juvenile proceedings predicated on fair treatment, tempered by the nature of the juvenile hearing. The Court stated that "[t]he problem is to ascertain the precise impact of the due process requirement upon such proceedings." Id. at 13-14, 87 S.Ct. at 1436, 18 L.Ed.2d at 538.

The Supreme Court has applied its case-by-case due process test on several occasions since Gault. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), a twelve-year-old child was charged with a delinquent act for stealing money from a woman's purse, for which the juvenile could have been confined for a maximum period of six years. The Court held that under the due process clause the juvenile had a constitutional right to the beyond-a-reasonable-doubt standard of proof in the adjudicatory hearing. Id. at 368, 90 S.Ct. at 1075, 25 L.Ed.2d at 377-78. In McKeiver v. Pennsylvania, 403 U.S. 528, 545, ...