Dexter P., In re

• Decision Date: 06 January 1994
• Citation: 648 A.2d 921,43 Conn.Supp. 211
• Court: Connecticut Superior Court
• Parties: In re DEXTER P. * . LEVIN, Judge. The issue of first impression in the present case is whether a juvenile who is charged with having committed serious juvenile offenses and whose order of detention has not been timely reviewed or renewed within the fifteen day period prescribed by the Practice Book is entitled to immediate release. The court holds that he is not. On

Page 921

648 A.2d 921

43 Conn.Supp. 211

In re DEXTER P. ^*

Superior Court of Connecticut,

Juvenile Matters.

LEVIN, Judge.

The issue of first impression in the present case is whether a juvenile who is charged with having committed serious juvenile offenses and whose order of detention has not been timely reviewed or renewed within the fifteen day period prescribed by the Practice Book is entitled to immediate release. The court holds that he is not.

On January 6, 1994, a petition was signed and notarized charging that on December 3, 1993, the respondent child, age fourteen, had committed the crime of use of a motor vehicle without the owner's permission, in violation of General Statutes § 53a-119b. A hearing on the petition was ordered for February 4, 1994. On February 4, 1994, apparently because service of the petition had not been made on the respondent or his parents, the court ordered that the respondent and his parents be subpoenaed to appear on February 25, 1994.

On February 25, 1994, the respondent appeared before the court and exercised his right to remain silent with respect to the allegations in the petition. A pre-trial was ordered to be held on March 24, 1994 at 10 a.m.

On Friday, March 18, 1994, the respondent was arrested and charged with having committed the crimes of sexual assault in the first degree, in violation of General Statutes § 53a-70a, and unlawful restraint in the first degree, in violation of General Statutes § 53a-95. By statutory definition, each of those crimes is a "serious juvenile offense." General Statutes § 46b-120.

On the following Monday, March 21, 1994, the respondent appeared before the court for a detention hearing. At the conclusion of that hearing, the court found that there was probable cause to believe that the respondent had committed the serious juvenile offenses charged. The court also found that "[t]here is a strong probability the child will commit or attempt to commit other offenses injurious to him ... or to the community before court disposition" and that "[t]here is probable cause to believe that the child's continued [residence] in his ... home pending disposition will not safeguard the best interests of the child and of the community because of the serious and dangerous nature of the acts set forth in the ... petition of delinquency." See General Statutes § 46b-133(d); Practice Book § 1031.1(2). ¹ The court thereupon remanded the respondent to the juvenile detention facility "until further order of this Court...." At that time, the court also ordered that the detention order be reviewed on April 4, 1994.

The parties have stipulated that, because of an oversight by a probation officer, the case was not docketed for a review of the detention order on April 4, 1994. The respondent remained detained in the detention facility. On Friday April 15, 1994, his attorney presented to this judicial officer a motion seeking the respondent's release from the detention facility because the order of detention had not been renewed. On Monday, April 18, 1994, the motion was heard by the court and the order of detention was reviewed. The respondent was ordered detained until May 2, 1994, or until further order of the court.

The basis of the respondent's motion for release is Practice Book § 1032.1, entitled "Release from detention." [43 Conn.Supp. 214] Paragraph 2 of that section provides in relevant part: "At the conclusion of the initial detention hearing, the court shall issue an order for detention on finding that at least one of the factors outlined in paragraph (1) of Sec. 1031.1 applies to the child. (a) If the child is placed in detention, such order for detention shall be for a period not to exceed fifteen days, including the date of admission, or until the dispositional hearing is held, whichever is the shorter period, unless, following a further detention hearing, the order is renewed; such hearing may not be waived." (Emphasis added.)

"The rules of statutory construction apply equally to statutes and rules of practice; Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984); and in the interpretation of statutes the word 'shall' may have a meaning that is directory rather than mandatory. Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985). The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, 143 Conn. 381, 388, 122 A.2d 789 (1956). Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply. Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969)[;] Fidelity Trust Co. v. BVD Associates, supra, at 278 ." (Internal quotation marks omitted.) Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 480-81, 595 A.2d 819 (1991), cert. denied, --- U.S. ----, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992); see Brown v. Smarrelli, 29 Conn.App. 660, 663-64, 617 A.2d 905, cert. denied, 225 Conn. 901, 621 A.2d 284 (1993); Rowe v. Godou, 12 Conn.App. 538, 542-43, 532 A.2d 978 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988); In re Adrien C., 9 Conn.App. 506, 510-11, 519 A.2d 1241, cert. denied, 203 Conn. 802, 522 A.2d 292 (1987).

Section 1032.1(2) does contain "negative words." It provides that an "order for detention shall be for a period not to exceed fifteen days...." (Emphasis added.) That however, is only one guide; it is not the test and is not dispositive. See State v. One 1976 Chevrolet Van, 19 Conn.App. 195, 198, 562 A.2d 62 (1989) (requirement that defendant be summoned to appear at a particular time that "shall not be less than six nor more than twelve days," held directory.)

First, "[i]t is well settled that one of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision. See Chesson v. Zoning Commission, 157 Conn. 520, 527, 254 A.2d 864 (1969); Donohue v. Zoning Board of Appeals, [155 Conn. 550, 554, 235 A.2d 643 (1967) ]; Winslow v. Zoning Board, [143 Conn. 381, 387, 122 A.2d 789 (1956) ]; Arrieu v. Litchfield, 17 Conn.App. 320, 324, 552 A.2d 445 (1989); see also Fidelity Trust Co. v. BVD Associates, [supra, 196 Conn. at 278, 492 A.2d 180]." Ruotolo v. Inland Wetlands Agency, 18 Conn.App. 440, 448, 558 A.2d 1021, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989); see Ghent v. Planning Commission, 219 Conn. 511, 516 n. 4, 594 A.2d 5 (1991); Yanni v. Del- 31 Conn.App. 350, 354, 624 A.2d 1175 (1993). Practice Book § 1032.1(2) does not contain language expressly invalidating an order of detention where the order is reviewed and renewed after the fifteen day period.

State v. Olds, 171 Conn. 395, 370 A.2d 969 (1976), is not "on all fours" with the present case; nonetheless, it is instructive. There, the defendant moved to dismiss charges of robbery in the first degree, unlawful restraint in the first degree and assault in the second degree. The basis of the defendant's motion to dismiss was that after being bound over to the Superior Court, he was held in a correctional center in excess of forty-five days without being presented in court, in violation of § 54-53a of the General Statutes (Rev. to 1975), which provided: "No person who has not made bail shall be detained in a community correctional center pursuant to the issuance of a bench warrant or for arraignment, sentencing or trial for an offense not punishable by death, for longer than forty-five days, unless at the expiration of such forty-five days he is presented to the court having cognizance of the offense. On each such presentment, such court may reduce, modify or discharge such bail, or may for cause shown remand such person to the custody of the commissioner of correction. On the expiration of each successive forty-five day period, such person may again by motion be presented to the court for such purpose." Practice Book § 677 contains similar language.

The trial court denied the defendant's motion to dismiss. The Supreme Court affirmed, stating: "The right to be released on bail upon sufficient security is a fundamental constitutional right, and any order made by the trial court denying or fixing the amount of bail is subject to appellate review. Conn. Const., art. I § 8; Practice Book § 694. On the other hand, § 54-53a purports to mandate only the procedure for implementing this right and provides no sanction in the event there is a violation. The denial of any right under the statute does not involve a fundamental constitutional right, and the defendant has made no showing of prejudice which would entitle him to a dismissal of the information." (Emphasis added.) State v. Olds, supra, 171 Conn. at 404, 370 A.2d 969.

Second, it is significant that the judges of the Superior Court, as the promulgators of the Practice Book rules; General Statutes §§ 51-14, 51-15, 51-15a; Practice Book § 7; have, in other sections, expressly provided consequences for the failure to act in a timely manner. Cf. Leo Fedus & Sons Construction Co. v. Zoning Board of Appeals, 225 Conn. 432, 441-42, 623 A.2d 1007 (1993). For example, in civil actions, Practice Book § 112 prescribes the...