McBeth v. Rose, s. 11542

• Decision Date: 24 January 1975
• Docket Number: 11552,Nos. 11542,s. 11542
• Citation: 111 Ariz. 399,531 P.2d 156
• Parties: Mary Louise McBETH, Petitioner, v. Honorable C. kimball ROSE, Judge of the Superior Court, Maricopa County, Division 27--E, Real Party in Interest, Respondent. Carole Jean TATELY and Daniel P. Monohan, Petitioners, v. JUSTICE COURT OF the NORTHEAST PHOENIX PRECINCT, MARICOPA COUNTY, Justice of the Peace Harold Lee, and Moise Berger, County Attorney, Maricopa County, Respondents.
• Court: Arizona Supreme Court

Page 156

531 P.2d 156

111 Ariz. 399

Mary Louise McBETH, Petitioner, v. Honorable C. kimball ROSE, Judge of the Superior Court, Maricopa County, Division 27--E, Real Party in Interest, Respondent.

Carole Jean TATELY and Daniel P. Monohan, Petitioners, v. JUSTICE COURT OF the NORTHEAST PHOENIX PRECINCT, MARICOPA COUNTY, Justice of the Peace Harold Lee, and Moise Berger, County Attorney, Maricopa County, Respondents.

Nos. 11542, 11552.

Supreme Court of Arizona, In Banc.

Jan. 24, 1975.

Rehearing Denied March 4, 1975.

Ross P. Lee, Maricopa County Public Defender by Oral W. Tucker, Jr., Deputy Public Defender, Phoenix, Lawrence W. Katz, Certified Third-Year Law Student Arizona State University, for petitioner McBeth.

Treon, Warnicke & Dann by B. Michael Dann and Richard T. Treon, Phoenix, for petitioner Tately. Trew & Woodford by C. Brad Woodford, Phoenix, for petitioner monohan.

Moise Berger, Maricopa County Attorney by Alan Johnson and J. P. Shaw, Deputy County Attys., Phoenix, for respondents.

HOLOHAN, Justice.

Petitions for special action were filed by petitioners to prohibit criminal prosecution from proceeding against them. Since the petitions both raise substantially the same issues, we ordered them consolidated.

Petitioner Mary Louise McBeth (No. 11542) was arrested November 26, 1973 on two charges of assault with a deadly weapon. At the time of arrest she was seventeen years of age and would not become eighteen until January 15, 1974. She was booked into the county jail on the aforementioned charges, but upon learning of petitioner's age, she was referred to juvenile court. A hearing was scheduled in juvenile court for January 8, 1974, but on the day of the hearing the county attorney moved to dismiss the juvenile petition. The judge of the juvenile court granted the state's motion and dismissed the juvenile petition.

On January 18, 1974, three days after petitioner became eighteen, the state filed a felony complaint against petitioner accusing her of two counts of assault with a deadly weapon which were alleged to have occurred on November 26, 1973. It is conceded by the state that these are the identical charges previously contained in the juvenile petition which was dismissed in juvenile court.

Over objection of defense counsel, petitioner was held to answer in superior court on the charges. An information was filed in superior court on February 21, 1974. On March 20, 1974, at the omnibus hearing, the motion of the defense to dismiss was denied, and petitioner was ordered to stand trial on May 15, 1974.

This Court accepted jurisdiction of the special action filed by petitioner to prohibit the superior court from proceeding further with the criminal case.

Petitioners Carole Jean Tately and Daniel P. Monohan (No. 11552) were arrested on December 2, 1973 for illegal possession of marijuana. The matter was referred to juvenile court as each of the petitioners was seventeen at the time.

Petitions were filed in juvenile court, their case consolidated for an adjudication hearing which was set for March 14, 1974. Prior to the hearing, each of the petitioners became eighteen. On the day before the adjudication hearing, the deputy county attorney in charge of the case moved ex parte to dismiss the juvenile petitions pending against petitioners. The juvenile court judge granted the motions, dismissed the petitions, and vacated and adjudication hearing date.

On April 9, 1974 a complaint was filed by the state in justice court charging that the petitioners on December 2, 1973 illegally possessed marijuana. Petitioners filed a special action in this Court seeking to restrain further action in the criminal case until there was a lawful transfer of the case by juvenile court to adult prosecution.

The argument of the several petitioners is essentially that, once the juvenile court assumes jurisdiction of a case involving a juvenile, there can be no criminal prosecution of that case in adult court unless the juvenile court transfers the matter to adult court for prosecution. They argue that the procedure of simply dismissing the juvenile petition after or shortly before the juvenile turns eighteen and then commencing an adult prosecution violates the provisions of the Arizona Constitution, the Juvenile Code, and the Rules of Procedure for the Juvenile Court.

The Arizona Constitution, in Article 6, Section 15, provides:

'The superior court shall have exclusive original jurisdiction in all proceedings and matters affecting dependent, neglected, incorrigible or delinquent children, or children accused of crime under the age of eighteen years. The judges shall hold examinations in chambers for all such children concerning whom proceedings are brought, in advance of any criminal prosecution of such children, and may, in their discretion, suspend criminal prosecution of such children. The powers of the judges to control such children shall be as provided by law.'

The Juvenile Code provides in A.R.S. § 8--202(D):

'Jurisdiction of a child obtained by the juvenile court in a proceeding under this chapter shall be retained by it, for the purposes of implementing the orders made and filed in that proceeding, until the child becomes twenty-one years of age, unless terminated by order of the court prior thereto.'

It is further provided in A.R.S. § 8--246(A):

'When jurisdiction has been acquired by the juvenile court of a child, the child shall continue under the jurisdiction of the juvenile court until such child becomes twenty-one years of age, unless sooner discharged pursuant to law. From the time of commitment to the department of corrections, a child shall be subject to the control of the department of corrections until such child's absolute discharge.'

Counsel for petitioners point out that the Rules of Procedure for the Juvenile Court, 17A A.R.S., especially Rules 12, 13 and 14, set forth the procedure to be followed if a juvenile case is to be transferred for adult prosecution. Our attention is directed to the requirements of Rule 14(b) which provides:

'The court may transfer the action for criminal prosecution to the appropriate court having jurisdiction of the offense if the court finds probable cause and reasonable grounds to believe that:

'(1) The child is not amenable to treatment or rehabilitation as a delinquent child through available facilities; and

'(2) The child is not commitable to an institution for mentally deficient, mentally defective or mentally ill persons; and

'(3) The safety or interest of the public requires that the child be transferred for criminal prosecution.'

and Rule 14(c) which requires that:

'Upon such transfer the juvenile court shall state the reasons therefor by minute entry or written order and the child shall thereupon be transferred to the custody of an appropriate law enforcement officer, released on bail, if the offense is bailable, or released upon his own recognizance.'

Although the issue presented by these cases is a matter of first impression in this Court, it has been decided in several other jurisdictions. In at least two jurisdictions the decision has been that an accused, who was under the age of eighteen at the time of the offense and who had a juvenile proceeding commenced but later dismissed before adjudication, could be charged and tried as an adult for such offense. Locke v. Commonwealth, Ky., 503 S.W.2d 729 (1973); State v. Kramer, 72 Wash.2d 904, 435 P.2d 970 (1967), cert. denied, 393 U.S. 833, 89 S.Ct. 103, 21 L.Ed.2d 103 (1968).

In Friedman v. Juvenile Court, 20 Ariz.App. 31, 509 P.2d 1068 (1973) Division Two of the Court of Appeals held that a juvenile cause pending and not heard on its merits prior to the time the juvenile reached eighteen results in loss of jurisdiction over the cause in the juvenile court. This Court, in Caruso v. Superior Court, 100 Ariz. 167, 412 P.2d 463 (1966), stated that jurisdiction in the juvenile court does not attach until there has been an adjudication based upon evidence that the child is dependent, neglected, incorrigible or delinquent. Both Friedman and Caruso dealt with dependency matters rather than delinquency.

In Burrows v. State, 38 Ariz. 99, 297 Pac. 1029 (1931), this Court held that a defendant who had reached the age of eighteen, charged by information for a crime committed before his eighteenth birthday was nevertheless subject to prosecution, trial, and sentence as an adult. For cases from other jurisdictions see 89 A.L.R.2d 506 et seq.

The statute concerning juvenile jurisdiction under which Burrows was decided was substantially carried forward into the Arizona Constitution by amendment in 1960 and is now Section 15...