J.M.V. v. State

• Decision Date: 27 May 1994
• Citation: 651 So.2d 1087
• Parties: J.M.V. v. STATE. CR 93-136, CR 93-248.
• Court: Alabama Court of Criminal Appeals

Page 1087

651 So.2d 1087

J.M.V. v. STATE.

CR 93-136, CR 93-248.

Court of Criminal Appeals of Alabama.

May 27, 1994.

Rehearing Denied July 8, 1994.

Certiorari Denied Dec. 22, 1994

Alabama Supreme Court 1931426

and 1931457.

John C. Robbins, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Cedric Colvin, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is a consolidated appeal from the orders of the Juvenile Court of Jefferson County transferring the appellant, J.M.V., to circuit court for criminal prosecution as an adult for the intentional murder of James W. Primis (Jefferson Juvenile Court case number JU 93-51862, Court of Criminal Appeals case number CR 93-136) and for the first degree robbery of Kimberly Dahlke (Jefferson Juvenile Court case number JU 93-52290, Court of Criminal Appeals case number CR 93-248).

THE MURDER CASE

I

The appellant was charged with the capital offense of intentional murder during a Rule 28(C), A.R.Juv.P., provides that written notice of appeal in juvenile cases must be filed "within 14 days of the judgment, order or decree appealed from." The appellant thus had until September 21, 1993, to file his notice of appeal from the transfer order. However, no notice was filed.

                robbery.  See Ala.Code 1975, § 13A-5-40(a)(2).  The transfer hearing was held on September 1, 2, and 7, 1993.  At the conclusion of that hearing, the juvenile court found probable cause to believe the appellant guilty of noncapital intentional murder and granted the State's motion to transfer.  However, on September 7, 1993, the juvenile court entered an order transferring the appellant to circuit court after finding probable cause to believe the appellant guilty of capital murder.   C.R. 47
                

On October 13, 1993, the juvenile court amended its September 7, 1993, order "on th[at] court's own motion due to inadvertent error." C.R. 48. In that amended order, the juvenile court found probable cause to believe the appellant guilty of noncapital intentional murder.

On October 19, 1993, defense counsel filed a "motion in the nature of a petition pursuant to Rule 32 of the ARCrP for extraordinary relief in filing an out of time notice of appeal." Counsel alleged that he "failed to file a timely Notice of Appeal" because he "was acting under the mistaken assumption that the time for filing the Notice of Appeal was forty-two (42) days." C.R. 40. The juvenile court granted that motion on October 21, 1993, and the appellant filed a notice of appeal on October 22, 1993. We find that the notice of appeal was timely filed.

As defense counsel recognized in his motion (C.R. 42), Rule 32, A.R.Crim.P., does not apply to juvenile transfer hearings. That rule applies to "any defendant who has been convicted of a criminal offense." Rule 32.1.

In this case, the juvenile court had the inherent authority to correct its order.

"Every court must have authority to correct its own entries, so as to make them speak the truth, even after adjournment of court, on sufficient evidence. The source of this inherent power is justice, and therefore the courts must have some discretion in altering their records after the time when they are said to import absolute verity. Gorum v. Samuel, 274 Ala. 690, 151 So.2d 393 [1963], and cases there cited."

Ex parte ACK Radio Supply Co. of Georgia, 283 Ala. 630, 634, 219 So.2d 880, 883-84 (1969). See also Carter v. State, 435 So.2d 137, 141 (Ala.Cr.App.1982) ("[a] judge has the inherent power to correct any clerical error in order to make the court records speak the truth and reflect what actually occurred").

Rule 1, A.R.Juv.P., provides: "If no procedure is specifically provided in these rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to the extent not inconsistent herewith." We have found no case identical to the present case. However, an analogous situation was presented in Wilson v. Leck's 66 Serv. Station, 513 So.2d 620 (Ala.Civ.App.1987).

"Appellees claim that the judgment of November 17, 1986, was amended on November 21, 1986, pursuant to a Rule 60(a) motion for clerical error. Therefore, appellees argue that the rule pertaining to clerical mistakes applies, stating that a corrected judgment relates back to the date of the defective judgment, and the time for taking appeal dates from the date of the original judgment. Faddis v. Woodward Iron Co., 276 Ala. 283, 161 So.2d 486 (1964). However, the rule governing clerical mistakes in judgments contemplates a type of error associated with mistakes in transcription, alteration, or omission of papers and documents, a mistake mechanical in nature which does not involve the legal decision or judgment. Michael v. Michael, 454 So.2d 1035 (Ala.Civ.App.1984). Also, the right under Rule 60, A.R.Civ.P., to correct clerical errors does not authorize the trial court to render a different judgment. Mayer v. Mayer, 491 So.2d 249 (Ala.Civ.App.1986). This is not a case of clerical error but of altering or amending a judgment. Errors which are of a more substantial nature than a clerical error are not to be corrected by way of a Rule 60(a) motion, but should be corrected by a motion under A.R.Civ.P. Rule 59(e) or 60(b).

Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.App.1978), cert. denied, 365 So.2d 985 (Ala.1979). A court may construe a motion as it is written rather than by the designation assigned it by movant; substance takes priority over form. Swain v. Terry, 454 So.2d 948 (Ala.1984). The court applied the motion as one to alter or amend a judgment under Rule 59(e), A.R.Civ.P. In any event, Rule 59(d) authorizes the court to act on its own motion, and the court may alter a judgment on its own initiative. Ex parte Owen, 420 So.2d 80 (Ala.1982). The time for filing a notice of appeal would not begin to run then as of November 17, 1986, but as of the time that the court acted on the post-trial motion and rendered an amended judgment. Thus, the notice of appeal filed by James Wilson in circuit court was timely."

Wilson, 513 So.2d at 621. Applying similar reasoning, we find that the appellant had 14 days from the date of the juvenile court's amendment of its original order to file notice of appeal. That notice of appeal was filed within 14 days of the amendment and was therefore timely.

II

We reject the appellant's claim that the evidence is insufficient to support the juvenile court's finding of probable cause to believe that the appellant intentionally murdered the victim.

At the transfer hearing the State presented evidence that the victim was killed by gunshot wounds to the head; that a white Cougar automobile was registered in the victim's name; that the victim was last seen at The Quest Club, a bar; that the appellant was seen with a pistol a relatively short time before the murder; that after the murder, the appellant was seen driving the white Cougar automobile registered in the victim's name; that the appellant said that "he had borrowed the car from some guy that he'd met at the [Quest] bar" (R. 73); that he told another person that "[h]e did actually shoot the man" and that "he had to pop a cap in him" (R. 82); that after the victim's death the appellant was with Angie Hale and Tranja Guyot when they cashed a check belonging to the victim; that there was blood in the front and back seats of the Cougar; and that within a few days after the murder, the appellant burned the white Cougar.

We agree with the juvenile court that although the State did not prove beyond a reasonable doubt that the appellant committed the murder, the evidence was sufficient to support a finding of probable cause.

"In order to transfer a juvenile, § 12-15-34 requires, first, that there be probable cause to believe that the child committed the offense alleged (a felony), and, second, at the dispositional phase of the hearing, that it is in the best interest of the child or the public to grant the motion to transfer." Ex parte J.R., 582 So.2d 444, 446-47 (Ala.) (Kennedy, J., dissenting from the quashing of a writ of certiorari), cert. denied, 502 U.S. 837, 112 S.Ct. 122, 116 L.Ed.2d 90 (1991). See also A.D.T. v. State, 630 So.2d 165, 166 (Ala.Cr.App.1993). "[A] transfer hearing is not a hearing to adjudicate the guilt or innocence of the child accused of a crime but is, instead, a probable cause hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult." Brown v. State, 353 So.2d 1384, 1387-88 (Ala.1977). At the probable cause phase, the court must find that "a reasonable man would believe the crime occurred and that the defendant committed it." Duncan v. State, 394 So.2d 930, 932 (Ala.1981).

"It is not necessary, at the transfer hearing, that the state prove beyond a reasonable doubt that the appellant intended to kill the police officers. '[A] transfer hearing is not a hearing to adjudicate the guilt or innocence of the accused, but instead is a probable cause hearing, to determine whether the juvenile should be transferred out of juvenile court for prosecution as an adult.' W.M. v. State, 607 So.2d 1303, 1304 (Ala.Cr.App.1992)."

R.L.S. v. State, 619 So.2d 940, 941 (Ala.Cr.App.1993). See also Ex parte W.T.K., 586 So.2d 850, 851 (Ala.1991); Smith v. State, 475 So.2d 633, 635 (Ala.Cr.App.1985).

"Since the purpose of a hearing of this type is not to determine guilt or innocence, the strict standard of proof beyond a reasonable Duncan v. State, 394 So.2d 930, 932 (Ala.1981). See also Slaton v. State, 555 So.2d 814, 815 (Ala.Cr.App.1989). "In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1891 (1949). " 'The substance of all the definitions' of probable cause 'is a reasonable...