Redding v. State, 3-676A151

• Decision Date: 12 December 1977
• Docket Number: No. 3-676A151,3-676A151
• Citation: 175 Ind.App. 89,370 N.E.2d 397
• Parties: Mark Dale REDDING, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 397

370 N.E.2d 397

175 Ind.App. 89

Mark Dale REDDING, Appellant, v. STATE of Indiana, Appellee.

No. 3-676A151.

Court of Appeals of Indiana, Third District.

Dec. 12, 1977.

Michael P. Scopelitis, Patrick Brennan and Associates, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

This is an appeal from an order waiving juvenile jurisdiction over the appellant Mark Dale Redding for purposes of criminal trial. Redding raises for review whether the St. Joseph Probate Court acquired initial subject-matter jurisdiction and, further, after change of venue whether there was sufficient evidence to support the waiver order entered by the Marshall Circuit Court.

The record reveals that on April 7, 1975, an amended delinquency petition was filed in the St. Joseph Probate Court alleging that appellant took approximately $995.97 from a restaurant in South Bend, Indiana, and that while so engaged he shot one of his victims in the arm. The State orally moved for Redding's waiver to adult court for trial on charges of 1) commission of a felony while armed with a dangerous weapon, and 2) inflicting injury during the commission of a robbery. Its grounds were that the juvenile was seventeen years of age, that he had a prior record of offenses before the court and that with the allegations of injury to a person he was beyond the rehabilitative powers of the Juvenile Court. On the basis of a prior unrelated action, the St. Joseph Probate Court had already ordered its chief probation officer to make a complete investigation which was later shown to include, inter alia, a previous juvenile record, a report on family environment and a social history. Thereafter, a running record had been kept concerning each contact Redding had with the Probate Court. When the cause was venued to the Marshall Circuit Court for a hearing to consider waiver of juvenile jurisdiction for the offenses herein, records from the proceedings in St. Joseph County were filed. At the conclusion of that hearing the Marshall Circuit Court granted waiver to the St. Joseph Superior Court for the prosecution of criminal charges.

On appeal Redding first contends that the St. Joseph Probate Court never properly acquired jurisdiction because of its alleged failure to follow the requisite procedure delineated in Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320; Duty v. State (1976), Ind.App., 349 N.E.2d 729; and Seay v. State (1975), Ind.App., 337 N.E.2d 489. Specifically appellant argues that there is no evidence in the record that an initial petition was filed and that there is no record of a pre-petition investigation into his home and environmental situation as a juvenile.

However, upon petition by the State this court by writ of certiorari obtained additions to the record herein which disclose a prior complaint before the St. Joseph Probate Court concerning Redding's activities, evidence of a pre- petition investigation and history concerning appellant's family background, a court authorization for a formal petition and a subsequent petition for delinquency. Together these demonstrate compliance with the requirements of IC 1971, 31-5-7-7 ¹ (Burns Code Ed.), and IC 1971, 31-5-7-8 ² (Burns Code Ed.).

Appellant's attempt to denigrate the additional record obtained, on grounds that it was never a part of the original proceedings before the St. Joseph Probate Court, is futile. Mere exclusion in the preliminary record of events which actually occurred including evidence of the original filing of the delinquency petition and the original preliminary investigation are not barriers to appropriate correction by a nunc pro tunc entry. Rather, as entered here, a nunc pro tunc entry is only an entry made now of something which was previously done to have effect as of the former date. Its office is to supply an omission in the record of an action actually had where entry thereof was omitted through inadvertence or mistake.

Taylor v. State (1976), Ind.App., 358 N.E.2d 167.

See,

Perkins et al. v. Hayward et al. (1892), 132 Ind. 95, 31 N.E. 670.

See also,

28A Words and Phrases, 104 (1977 Cum.Supp.).

In the case at bar the corrected record discloses that the appellant was afforded his rights under the statute. Juvenile jurisdiction clearly vested in the St. Joseph Probate Court.

Appellant's second contention involves a challenge to the sufficiency of the waiver order entered by the Marshall Circuit Court. He argues that the order was invalid because it was not supported by sufficient evidence and was not set out with the required specificity.

However, the trial court found that the juvenile was seventeen years of age at the time of the delinquent act, that there was probable cause to believe he committed the offenses alleged and that such would be a crime if committed by an adult. Further the trial court found that the offenses were of a grievous nature against a person and of prosecutive merit. The trial court concluded by waiving jurisdiction "to protect public security" because the juvenile was "beyond the rehabilitative powers of the juvenile court."

Furthermore, the evidence disclosed by the waiver hearing amply demonstrated that the act with which Redding was charged was of a serious and aggravated nature. The record reveals allegations that appellant and another entered the Silver Tower Restaurant with drawn pistols on March 20, 1975. They shot...