Simmons v. State, 6 Div. 336

• Decision Date: 22 January 1985
• Docket Number: 6 Div. 336
• Parties: Richard Allen SIMMONS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 884

475 So.2d 884

Richard Allen SIMMONS v. STATE.

6 Div. 336.

Court of Criminal Appeals of Alabama.

Jan. 22, 1985.

On Return to Remand

June 11, 1985.

Rehearing Denied July 23, 1985.

Certiorari Denied Sept. 27, 1985

Alabama Supreme Court 84-1165.

Tim W. Bice, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, Richard Allen Simmons, was indicted for the offense of murder as proscribed by § 13A-6-2, Code of Alabama 1975. A jury found him guilty of the offense of criminally negligent homicide and Simmons was sentenced to twelve months' imprisonment.

For now, we pretermit discussion of the issues raised on appeal except the issue "If it shall be ascertained during the pendency of a criminal or quasicriminal charge that a defendant was a child, ¹ as defined in this chapter, at the time of the alleged offense, that court, which shall have the duty to ascertain such age, shall forthwith transfer the case, together with all the papers, documents and transcripts of any testimony connected therewith, to the juvenile court.... All action taken by the court prior to transfer of the case shall be deemed null and void unless the juvenile court transfers under section 12-15-34."

of the circuit court's jurisdiction. Simmons contends that the testimony during his trial revealed that he was seventeen years old at the time of the alleged act giving rise to the charge. From our review of the record, we find conflicting testimony as to Simmons's age. If Simmons was, in fact, under the age of eighteen at the time of the alleged act, the lower court, under the following statute, was without authority to pronounce and enter the judgment and sentence:

Ala.Code 1975, § 12-15-33(a), (footnote added). Under the mandate of this statute, the trial court had the affirmative duty to determine the age of the defendant and, if such investigation disclosed that the defendant was under eighteen at the time of the alleged act, the child should have been transferred to the juvenile court. Cf. Keenum v. State, 25 Ala.App. 359, 146 So. 623 (1933); Hart v. State, 22 Ala.App. 135, 113 So. 471 (1927). We find in the record no factual determination of Simmons's age.

Accordingly, we remand this cause to the trial court with directions to ascertain, by proper evidence, Simmons's age at the time of the alleged act. The trial court shall make a written finding of fact on this single issue and forward this finding to this court for review.

REMANDED WITH DIRECTIONS

All Judges concur.

ON RETURN TO REMAND

PATTERSO...