Juvenile Appeal (85-AB), In re

• Decision Date: 26 February 1985
• Citation: 195 Conn. 303,488 A.2d 778
• Court: Connecticut Supreme Court
• Parties: In re JUVENILE APPEAL (85-AB) * .

Page 778

488 A.2d 778

195 Conn. 303

In re JUVENILE APPEAL (85-AB) ^*.

Supreme Court of Connecticut.

Argued Nov. 7, 1984.

Decided Feb. 26, 1985.

Kenneth Rosenthal, Asst. Public Defender, with whom, on brief, were Raymond P. Kosinski, Asst. Public Defender, and Joette Katz, Public Defender, for appellant (defendant).

Julia D. Dewey, Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Cathleen M. Edwards, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and DANNEHY, JJ.

SHEA, Associate Justice.

This case arises out of an incident on January 17, 1982, when a woman was abducted, raped and robbed by several youths in the North Haven area. The defendant was fifteen years old at the time of the offense and, therefore, a "child" whose offenses would ordinarily be treated as "juvenile matters." General Statutes §§ 46b-120, 46b-121. The crimes of sexual assault in the first degree, kidnapping in the first degree, larceny in the second degree and robbery in the second degree resulting from the January 17, 1982 incident were alleged as the basis for the charges of delinquency against the defendant. See General Statutes § 46b-145. An additional ground alleged was the defendant's escape from custody at a juvenile detention facility in which he had been held prior to the incident. The court granted the motion of the state to transfer the case to the regular criminal docket pursuant to General Statutes § 46b-126. ¹ The defendant has appealed the transfer order, claiming error in the failure of the court to conduct a full evidentiary hearing to ascertain whether there was probable cause to believe that he had committed the offenses charged, one of the statutory prerequisites for such a transfer. ² We do not reach the issue raised because we have concluded that the transfer order appealed from was not a final judgment and that we, accordingly, lack jurisdiction.

In exercising its constitutional authority to define the jurisdiction of the courts, the legislature has generally limited this court to "[a]ppeals from final judgments or actions of the superior court." General Statutes §§ 51-197a, 52-263; see Conn. Const., amend. XX; Styles v. Tyler, 64 Conn. 432, 451-53, 30 A. 165 (1894); but see General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n. 1, 485 A.2d 1272 (1984). "In a criminal case, the imposition of sentence is the final judgment of the court." State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). "Interlocutory rulings in criminal cases generally are not appealable." State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983). Such rulings, if erroneous, may be the basis for relief only when an appeal is ultimately taken after final judgment has been rendered. Practice Book § 3000.

Since the prerequisite of imposition of sentence has not yet occurred, the transfer order in this case cannot be deemed a final judgment. State v. Parker, 194 Conn. 650, 652, 485 A.2d 139 (1984); State v. Grotton, supra, 180 Conn. at 293, 429 A.2d 871; State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969). The issue, therefore, is whether it falls within one of the narrowly defined exceptions to the general prohibition against appeals from interlocutory rulings. "An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them." State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). The first alternative, termination of a separate and distinct proceeding, requires the order being appealed to be severable from the central cause to which it is related so that the main action can "proceed independent of the ancillary proceeding." State v. Parker, supra, 194 Conn. at 654, 485 A.2d 139; Potter v. Appleby, 136 Conn. 641, 643, 73 A.2d 819 (1950). It is clear that the prosecution of the defendant could not go forward if we were to hold that the order transferring him from the juvenile to the criminal division of the Superior Court could properly be appealed. This order, therefore, fails to satisfy the first Curcio alternative for a "separate and distinct proceeding."

The defendant relies principally upon the second Curcio alternative, claiming that the transfer order so concludes his statutory rights to treatment as a juvenile "that further proceedings cannot affect them." He appears to recognize that, if the transfer order should ultimately be found erroneous upon appeal after sentence has been imposed, the case could be remanded for further proceedings in the juvenile division. He maintains, however, that the element of privacy afforded by a juvenile proceeding could not be restored by such a remand and also that incarceration of a juvenile in an adult prison while awaiting trial or pending appeal of a conviction as a nonjuvenile offender may result in irreparable harm.

Under circumstances similar to those presented here, initially we were persuaded to allow an appeal from the denial of an application for youthful offender treatment because of the deprivation of the statutory right to a private hearing that would be irreparably lost by the public trial held following denial of the application. State v. Bell, supra. Upon reconsideration, however, though we recognized that "[o]nce the defendant undergoes a public trial or is detained with the general jail population, his privacy cannot be restored by a subsequent private trial or by subsequent segregation detention," we overruled our earlier decision, holding the denial of an application for youthful offender treatment not to be immediately appealable. State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). In the closely analogous situation where an application for accelerated rehabilitation is denied we have similarly dismissed an appeal from such an interlocutory order. State v. Spendolini, supra; see State v. Parker, supra. We have not viewed the youthful offender or the accelerated rehabilitation statutes, when applicable, as creating a "right not to be tried" that can be vindicated only by allowing interlocutory appeals from denials of applications for these special procedures. State v. Spendolini, supra, 189 Conn. at 96, 454 A.2d 720. Such a right has been recognized only where the right to protection against double jeopardy is involved, because that constitutional right not only protects against being twice punished but also "is a guarantee against being twice put to trial for the same offense." (Emphasis in original.) Abney v. United States, 431 U.S. 651, 661, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977). Accordingly, we have entertained interlocutory appeals raising claims of infringement of the protection against double jeopardy. State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, --- U.S. ----, 104 S.Ct. 124, 78 L.Ed.2d 122 (1983); State v. Seravalli, 189 Conn. 201, 206 n. 6, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S.Ct. 2076, 77 L.Ed.2d 291 (1983).

We have been disinclined, however, to extend the privilege of an interlocutory appeal in criminal cases beyond the double jeopardy circumstance. This reluctance stems principally from our concern that to allow such appeals would greatly delay the orderly progress of criminal prosecutions in the trial court, as vividly illustrated in the present instance where more than two years have elapsed while this appeal has been pending. ³ "[T]he opportunity to appeal in such a situation might well serve the purpose of parties who desire for their own ends to postpone the final determination of the issues." State v. Kemp, 124 Conn. 639, 647, 1 A.2d 761 (1938). It has been widely recognized that strict adherence to the final judgment rule is necessary in criminal cases because "the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law." DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962); see Abney v. United States, supra, 431 U.S. at 657, 97 S.Ct. at 2039; State v. Servalli, supra, 189 Conn. at 204, 455 A.2d 852; State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S.Ct. 85 74 L.Ed.2d 80 (1982). "The overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusation should be removed as speedily as circumstances permit." State v. Parker, supra, 194 Conn. at 656, 485 A.2d 139.

This concern for the expeditious disposition of criminal cases has unquestionably resulted in some diminution in the effectiveness of appellate remedies for infringements upon constitutional rights as well as statutory privileges. The fourth amendment protection against the use of unlawfully obtained evidence cannot be as fully implemented by reversal of a conviction on appeal following a trial as by suppressing such evidence before trial through an interlocutory appeal. This consideration has not induced any modification of the rule barring pretrial review in such cases. DiBella v. United States, supra, 369 U.S. at 131, 82 S.Ct. at 660. Even where the claimed unconstitutional seizure could be wholly prevented by an interlocutory appeal we have adhered to the rule. State v. Grotton, supra, 180 Conn. at 293, 429 A.2d 871 (confining State v. Acquin, 177 Conn. 352, 416 A.2d 1209 (1979) "to its facts"). Nor have we deviated despite our realization that the protection afforded youthful offenders against publicity ⁴ and confinement with older prisoners ⁵ cannot be fully restored by our decree of further proceedings after a successful appeal from a...