State ex rel. E. D. v. Aldredge, 14194

Decision Date11 July 1978
Docket NumberNo. 14194,14194
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. E. D. v. The Hon. Naaman J. ALDREDGE, Chief Judge, etc.

Syllabus by the Court

1. The release of the child on recognizance is the remedy for delay in conducting a preliminary hearing under W.Va.Code § 49-5-9(a) (1977), and a juvenile court is not deprived of jurisdiction to transfer a child to the criminal jurisdiction of the circuit court by the provisions of W.Va.Code § 49-5-10 (1977) where a transfer hearing is not held within seven (7) days of a child being taken into custody.

2. A juvenile court, in its order transferring a case to criminal proceedings, must set forth findings of fact and conclusions of law justifying the transfer ruling by virtue of W.Va.Code § 49-5-10 (1977).

3. Where a juvenile court makes no express finding that "there are no reasonable prospects for rehabilitating the child through resources available to the court under this article", as required by W.Va.Code § 49-5-10 (1977), such transfer order is void, and the circuit court is without jurisdiction to proceed in such case.

Bernard L. Spaulding, Logan, for relator.

Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondent.

McGRAW, Justice:

In this prohibition proceeding, the relator, in view of several irregularities and defects in the transfer hearing, seeks to prevent the Circuit Court of Logan County from proceeding against him as an adult under its criminal jurisdiction.

On September 13, 1977, relator was charged with armed robbery and held in custody pursuant to a petition filed in the Juvenile Court of Logan County. Upon motion of the State a transfer hearing was held on September 23, 1977, and on October 7, 1977, the Court entered an order transferring relator to the Circuit Court of Logan County. Thereafter, petitioner was indicted for armed robbery by the Logan County Grand Jury.

Relator contends that the Circuit Court of Logan County will exceed its jurisdiction by trying relator as an adult on the grounds that: (1) the transfer hearing was held more than seven days after relator's arrest in violation of W.Va.Code §§ 49-5-9(a), 10 (1977), 1 and therefore, the juvenile court was without jurisdiction to transfer the matter to the criminal jurisdiction of the circuit court; (2) the order transferring the case to the circuit court did not state that there was no reasonable prospect for rehabilitating the child through resources available to the court as required of W.Va.Code § 49-5-10 (1977); and (3) the State did not establish by clear and convincing evidence that there was no reasonable prospect for rehabilitating relator.

The respondent admits in its answer all the allegations contained in the relator's petition for a writ of prohibition, except the allegation that the State has "no right to transfer the matter to the circuit court after seven days had elapsed from the arrest." The State, therefore, agrees that this writ of prohibition must be granted on the ground that the juvenile court improperly considered the rehabilitative prospects of relator under W.Va.Code § 49-5-10.

We agree with the respondent that the relator's first contention is without merit. A juvenile court is not deprived of jurisdiction to transfer a child to the criminal jurisdiction of the circuit court where no preliminary hearing is held within seven days of the time a child is arrested. The release of the child on recognizance is the remedy for delay in conducting a preliminary hearing under W.Va.Code § 49-5-9(a) (1977), and a juvenile court is not deprived of jurisdiction to transfer a child to the criminal jurisdiction of the circuit court by the provisions of W.Va.Code § 49-5-10 (1977) where a transfer hearing is not held within seven (7) days of a child being taken into custody.

On the second issue, this Court agrees that the juvenile court's order transferring relator's case to the criminal jurisdiction of the circuit court is legally insufficient under W.Va.Code § 49-5-10 (1977). An examination of the transfer order reveals that the juvenile court made no express finding that there was "no reasonable prospects for rehabilitating the child through resources available to the court under this article" as required by statute. This statute embodies constitutional principles: "(B)efore a court can waive its juvenile jurisdiction it must under due process procedures . . . issue a statement of the reasons for relinquishing juvenile jurisdiction." Syl. pt. 1, State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223 (1977).

A juvenile court, in its order transferring a case to criminal proceedings, must set forth findings of fact and conclusions of law justifying the transfer ruling by virtue of W.Va.Code § 49-5-10 (1977), and where a juvenile court makes no express finding that "there are no reasonable prospects for rehabilitating the child through resources available to the court under this article," as required by W.Va. § 49-5-10 (1977), such transfer order is void, and the circuit court is without jurisdiction to proceed in such case.

Although the State has correctly conceded its failure to meet the statutory burden of proving by clear and convincing proof that there are no reasonable prospects for rehabilitating relator through the resources available to the Court, a brief examination of the evidence is in order.

E. D. is a sixteen (16) year old male with a congenital defect, described as "club foot", requiring surgery and braces in the past, and apparently requiring further surgery in the future. He has performed poorly in school. His parents are divorced; he lives with his mother who has had several cancer operations in the two years preceding the alleged armed robbery. At age fourteen (14), he was placed on three (3) years probation after being adjudged a delinquent child, and he had pending against him, when the proceedings below were instituted, three drug charges and an armed robbery charge.

Yet, the record indicates, as the State states in its brief, "a wholesale failure of local authorities to attempt to better E.'s home life and school performance." His probation officer said he had done nothing to try to rehabilitate him despite knowledge of his poor home and...

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14 cases
  • Mark E.P., Matter of
    • United States
    • West Virginia Supreme Court
    • January 30, 1985
    ...presented. Breed v. Jones, 421 U.S. 519, 538 n. 18, 95 S.Ct. 1779, 1790, 44 L.Ed.2d 346, 360 (1975)." See also State ex rel. E.D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978). For the foregoing reasons, we reverse the transfer orders and remand these cases for further proceedings consis......
  • Moss, In Interest of
    • United States
    • West Virginia Supreme Court
    • July 15, 1982
    ...transfer. Failure to set forth the findings and conclusions voids the transfer order. Syl. Pts. 2 and 3, State ex rel. E.D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978). In sum, we find that the prejudicial nature of the transcript of the preliminary hearing and the juvenile referee's t......
  • Anthony Ray Mc., In Interest of
    • United States
    • West Virginia Supreme Court
    • June 19, 1997
    ...its decision to make the transfer to its criminal jurisdiction. 5 See W.Va.Code § 49-5-10(e) (1996) and Syl. Pt. 2, State ex rel. E.D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978) (requiring findings of fact and conclusions of law be incorporated in the transfer order). In syllabus poin......
  • State v. Hosea
    • United States
    • West Virginia Supreme Court
    • December 16, 1996
    ...49-5-10(e) (1978). Failure to set forth findings and conclusions will void a transfer order. Syllabus Points 2 & 3, State ex rel. E.D. v. Aldredge, 162 W.Va. 20, 245 S.E.2d 849 (1978); In re Moss, 170 W.Va. 543, 550-51, 295 S.E.2d 33, 41 If, however, a court lacks the requisite probable cau......
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