Cole, Matter of

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: HOLMAN
• Citation: Cole, Matter of, 570 P.2d 365, 280 Or. 173 (Or. 1977)
• Decision Date: 25 October 1977
• Parties: In the Matter of James Dean COLE, a Minor Child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. James Dean COLE, Petitioner. STATE of Oregon, Respondent, v. James Dean COLE, Petitioner.

Page 365

570 P.2d 365

280 Or. 173

In the Matter of James Dean COLE, a Minor Child.

STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. James Dean COLE, Petitioner.

STATE of Oregon, Respondent, v. James Dean COLE, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 8, 1977.

Decided Oct. 25, 1977.

Nely L. Johnson, Portland, argued the cause for petitioner. With her on the briefs was Kristena A. LaMar, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. On the briefs were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

HOLMAN, Justice.

Two related cases have been consolidated for purposes of this appeal. The first is an appeal by James Dean Cole, a juvenile, from orders of the Juvenile Court of Multnomah County transferring twelve charges against him to the criminal court for disposition as if he were an adult. The second is an appeal by the District Attorney of Multnomah County from the dismissals of criminal informations filed by him against Cole subsequent to the transfers to criminal court.

The genesis of these cases was a procedural nightmare. Cole had been a ward of the juvenile court since 1973, and had previously been institutionalized in MacLaren School. In late 1975 and early 1976 twelve separate charges, primarily burglary, were filed against him in juvenile court. The District Attorney moved that the charges be transferred to adult court for disposition. After a hearing upon the motion, the juvenile court so transferred the charges on January 14, 1976, without making any written findings of fact as required by ORS 419.533(2). On January 23, 1976, informations against Cole were filed by the District Attorney in criminal court. On February 9, 1976, Cole filed a notice of appeal from the transfer orders of the juvenile court.

After filing his notice of appeal, Cole successfully sought to have the juvenile court judge change her mind. She did so by an order of February 27, 1976, which purported to set aside the transfer orders. In the meantime Cole had been arraigned upon the informations in criminal court, had received a preliminary hearing and was bound over for trial, and one pre-trial conference had been held. On February 23, 1976, four days prior to the juvenile court judge's order purporting to set aside the transfer orders, the circuit judge hearing criminal matters dismissed the criminal proceedings. It is not clear why he did this, but it would appear that he anticipated the juvenile court judge's subsequent change of mind. The state appeals from the dismissals of the criminal proceedings.

The Court of Appeals affirmed the transfers of the charges against Cole for criminal disposition and reversed the dismissals of the criminal cases against him in circuit court. 28 Or.App. 367, 559 P.2d 918 (1977). This court granted review.

This court granted review for two purposes: One, to determine whether the juvenile court judge's transfer orders were invalidated because of her failure to make written findings of fact pursuant to ORS 419.533(2), showing that the retention of jurisdiction by the juvenile court "will not serve the best interests of the child because the child is not amenable to rehabilitation in facilities and programs available to the court"; and two, to determine generally whether the juvenile court has authority to revoke transfers of charges to the criminal court.

We find that we are frustrated in our latter aim because the juvenile court judge had no jurisdiction to deal further with the transfers after the appeal from her orders of transfer was taken by Cole on February 9, 1976. ¹ State v. Jackson, 228 Or. 371, 365 P.2d 294, 89 A.L.R.2d 1225 (1961). The Court of Appeals noted but ignored the juvenile court judge's lack of jurisdiction, and its opinion purported to decide the propriety of her actions as if she had had jurisdiction. No approval or disapproval by this court of the Court of Appeals' proposed solution should be assumed by our reluctance to deal with a hypothetical legal problem.

We will now consider the problem which is available to us for decision, i.e., were the juvenile court's orders transferring the charges against Cole to the criminal court for disposition invalid because the juvenile court judge failed to make written findings of fact as required by ORS 419.533(2)? The language of the subsection is as follows:

"The juvenile court shall make a specific, detailed, written finding of fact to support any determination under paragraph (c) of subsection (1) of this section."

Paragraph (c) of subsection (1) is as follows:

"The juvenile court determines that retaining jurisdiction will not serve the best interests of the child because the child is not amenable to rehabilitation in facilities or programs available to the court."

The purpose of the statutory requirement is obvious. The legislature wanted to make sure, when juvenile court judges transfer charges against juveniles to the criminal court for disposition, that the judges actually consider the criteria which the legislature has laid down for such transfer. In this case, the juvenile court judge stated as follows at the completion of the hearing on transfer:

"I agree...