D.D.A. v. State

• Decision Date: 17 June 1994
• Citation: 650 So.2d 571
• Parties: D.D.A. v. STATE. CR 92-2011.
• Court: Alabama Court of Criminal Appeals

Page 571

650 So.2d 571

D.D.A. v. STATE.

CR 92-2011.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Rehearing Denied Aug. 19, 1994.

Certiorari Denied Oct. 21, 1994

Alabama Supreme Court 1931723.

Joseph H. Hilley and William N. Clark, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Cecil Brendle, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

The appellant, 17-year-old D.D.A., was charged by petition with intentionally causing the death of another during a drive-by shooting, a capital offense under Ala.Code 1975, § 13A-5-40(a)(18). After a hearing on the State's motion to transfer, the Juvenile Court of Etowah County found probable cause to believe that the appellant had committed the offense of reckless murder and ordered him transferred to circuit court for criminal prosecution as an adult. The appellant raises five issues in this appeal from the juvenile court's order.

I.

The appellant contends that the juvenile court erred in denying his motion to dismiss the delinquency petition on the grounds that the court had previously entered a "consent decree" and had allowed the delinquency petition to expire.

Section 12-15-1(6), Ala.Code 1975, defines a consent decree in juvenile proceedings as "[a]n order, entered after the filing of a delinquency petition and before the entry of an adjudication order, suspending the proceedings and continuing the case of the child under supervision in the child's own home, under terms and conditions agreed to by all parties concerned."

Rule 16, A.R.Juv.P., states:

"(A) At any time after the filing of a delinquency or in need of supervision petition and before the entry of an adjudication order, the court, following advisement of rights to the child and his parents or custodian including the right to counsel at this and other stages of the proceeding, may suspend the proceedings, and continue the child under supervision under terms and conditions negotiated with probation services and agreed to by all parties affected; provided, however, that the judge may continue the child under supervision over the objection of the prosecutor. The court's order continuing the child under supervision shall be known as a consent decree.

"(B) Where the child objects to a consent decree, the court shall proceed to findings, adjudication and disposition. Where the child does not object, but an objection is made by the prosecutor after consultation with probation services, the court shall, after considering the objections and reasons therefor, proceed to determine whether it is appropriate to enter a consent decree.

"(C) A consent decree shall remain in force for six months unless the child is discharged sooner by the court. Upon application of probation services or other agency supervising the child, made before expiration of the six-month period, a consent decree may be extended by the court for an additional six months.

"(D) If prior to discharge by the probation services or expiration of the consent decree, a new delinquency or in need of supervision petition is filed against the child, or the child otherwise fails to fulfill express terms and conditions of the decree the petition under which the child was continued under supervision may be reinstated and the case may proceed to adjudication just as if the consent decree had never been entered.

"(E) The petition of a child who is discharged or who completes a period of continuance under supervision without reinstatement of the original delinquency or in need of supervision petition shall be dismissed and the child shall not again be proceeded against in any court for the same offense based upon the same conduct."

The commentary to Rule 16 states:

"This rule permits the court on its own motion or on the motion of the party to suspend the proceedings and continue the child under supervision at any time before the entry of finding with respect to the allegations in the petition. This will not only expedite the administration of justice but also can eliminate the need of a finding of delinquency which may cause problems for the child later in life. A number of provisions included are designed not only to protect the child but also to protect the public. This section should eliminate the necessity of the court carrying cases on an informal or unofficial basis after a petition has been filed."

The juvenile court entered an order on August 13, 1992, postponing the commencement of proceedings in the case. The appellant argues that this order was a consent decree within the meaning of Rule 16, A.R.Juv.P., and as such allowed the delinquency petition to expire after six months in the absence of a renewal by the State. The appellant asserts that "once the original six months expired the delinquency petition was automatically dismissed and the juvenile court was without jurisdiction to reinstate the original petition or to conduct further hearings or proceedings on the original petition." Appellant's brief at 36.

The delinquency petition charging the appellant with the offense of capital murder was filed on August 13, 1992, and the case was set for a "detention hearing." ¹ C.R. 8, 1. However, before this hearing began the appellant and the State agreed to continue the proceedings. The juvenile court issued the following order:

"Case being set for a detention hearing, and after consultation by counsel with their clients, counsel for all parties, including the State, agree that this detention hearing be continued as to such time as any of the parties may move for a hearing on such motion as they may file. It is further stipulated that the child shall remain in detention pending further hearings and orders of the Court for the reason that his release may result in substantial harm to the child. By this agreement and stipulation there is no admission of probable cause on the part of the child." C.R. 1.

Apparently, there is no transcript of the proceedings held on August 13, 1992.

In November 1992, the appellant filed a motion to suppress and a motion to require production or disclosure. C.R. 12-18. Both of those motions anticipated the appellant's trial. The appellant also filed a motion to dismiss the petition on various constitutional grounds. C.R. 19-21.

On February 26, 1993, the State filed a "motion requesting transfer of child for criminal prosecution." C.R. 21. On March 23, 1993, the appellant again moved to dismiss the petition. C.R. 31. In that motion the appellant argued that the August 13, 1992, order of the juvenile court was a consent decree within the meaning of Rule 16, A.R.Juv.P., and that since more than six months had expired without the filing of a new petition or without any attempt by the State to extend the continuance beyond the original six months, the petition had to be dismissed with prejudice.

The appellant's motion to dismiss was heard by the juvenile court on March 26, 1993, prior to the commencement of the transfer hearing. At the conclusion of that hearing, the juvenile court denied the motion to dismiss:

"[I]t is a fact that the statute, the Code, defines consent decree, and in this particular situation, that order entered on the 13th of August of '92 does not meet the definition of a consent decree. Not only doesn't meet the definition, I don't think it's the spirit of that order. I don't really see how either side could argue it's the spirit of that order that it be a consent decree. A consent decree, of course, being a decree that's entered by the Court that does outline some specific conditions, somewhat like a suspended prosecution, like a child if you are able to do 'A,' 'B,' 'C,' 'D,' 'E,' and 'F,' then there's a commitment on behalf of the State that these proceedings will not go any further than that. That would be the end of this, that the hearing would not be carried to an adjudication that would result in a juvenile record of conviction. That order that Judge Lewis has entered on the 13th of August is not that kind of an order. There's another rule in the Rules of Juvenile Procedure, and again, we're talking about rules of procedure here as well, that says that the proceedings must go along at a reasonable pace. And in light of what has been said and what is in the file, it is felt like that this proceeding has progressed at a reasonable pace.

"Now, that's certainly a flexible term, it's akin to trying to argue the speedy trial issues in a case. What is reasonable depends on a lot of circumstances. But the circumstances in this case give no indication that this court--that this matter has not progressed at a reasonable pace, and that by definition, that order of 8/13 is not a consent decree. So, the motion would be denied on this case." R. 42-43, March 26, 1993. ²

We agree with the conclusion of the trial judge.

On April 16, 1993, the appellant filed a petition for a writ of mandamus raising this issue in the Court of Criminal Appeals. That petition was denied on May 4, 1993, on authority of Ex parte Spears, 621 So.2d 1255, 1258 (Ala.1993), which held that "mandamus review will generally be restricted in the future to those cases where one of the recognized exceptions applies, or to those extraordinary cases where the rights of the parties cannot be adequately protected by appellate review of a final judgment." See Ex parte D.D.A., 636 So.2d 482 (Ala.Cr.App.1993) (Table). The Alabama Supreme Court, without opinion, denied certiorari review on August 27, 1993.

In the present case, the juvenile court's August 13 order did "suspend" the proceedings to the extent that it ordered that the proceedings be "continued as to such time as any of the parties may move for a hearing." However, that order did not contain any "terms and conditions negotiated with probation services and agreed to by all parties affected" regarding the appellant's supervision in lieu of adjudication by the trial court. See Rule 16(A), A.R.Juv.P. There is no indication in the record that a...