State in Interest of Collins, In re

• Decision Date: 17 December 1973
• Docket Number: No. 9657,9657
• Citation: 288 So.2d 918
• Parties: In re STATE of Louisiana In the Interest of Dan COLLINS.
• Court: Court of Appeal of Louisiana — District of US

Page 918

288 So.2d 918

In re STATE of Louisiana In the Interest of Dan COLLINS.

No. 9657.

Court of Appeal of Louisiana, First Circuit.

Dec. 17, 1973.

Gerald P. Aurillo, Metairie, for appellant .

Leon Picou, Dist. Atty., St. Francisville, for appellee.

Before SARTAIN and TUCKER, JJ., and WATSON, J. ad hoc.

SARTAIN, Judge.

This is an appeal from the Twentieth Judicial District Court sitting as a juvenile court. The youth involved, Dan Collins, was committed to the Louisiana Department of Corrections for an indefinite period and he appeals to this court.

The record sent up on appeal is very limited, consisting only of the usual indices; an extract of court minutes (which is unsigned); the petition with certificates of service; the notice and order of appeal; and a motion for release pending the out-come of this appeal, together with an order fixing bail bond for release during the appeal in the amount of $5,000.00.

The extract of court minutes recites that the hearing was held in Chambers on July 16, 1973, with the juvenile present, accompanied by his mother and a court appointed attorney. The minutes also reflect that the juvenile was arraigned, entered a plea of not guilty and then went to trial. The testimony of certain witnesses is given in digest form in the minutes, but the testimony of at least one witness, Tommy Mitchel, is not stated. Additionally, the minutes mention that Dan Collins is age 16; that he had several prior arrests in New Orleans; that he comes from a good family; and that his family is unable to control him. The extract of court minutes concludes with the statement that Collins was committed to the Louisiana Department of Corrections for an indefinite period.

The petition in the record recites the charge against the juvenile in the following terms:

'. . . On the day of July 9, 1973, he did commit simple burglary by making an unauthorized entry into the house of Eddie Jones and committed theft therefrom of $14.00 in silver.'

It is noteworthy that no transcript of testimony is included in the record. Also, there is no indication as to when the court appointed attorney was appointed.

On Appeal, the juvenile, who is now represented by other counsel, makes the following charges of error by the juvenile court:

(1) That the record is so vague and incomplete that the conviction should be reversed or in the alternative a new trial should be ordered.

(2) That the haste with which the proceedings were conducted requires that the finding be set aside.

(3) That the State failed to inform the juvenile and his parent of the right to counsel and that the record does not show when the attorney was appointed to represent the juvenile.

(4) That the finding of delinquency cannot be based on hearsay evidence and unsworn testimony while the present record reflects that the juvenile court may have relied upon the juvenile's arrests in New Orleans and on the statement that the family was unable to control him.

On the basis of the errors recited, it is urged that the commitment of the juvenile should be reversed and the charge against him dismissed, or, in the alternative, that a new trial should be granted.

We are of the opinion that a new trial should be granted because of certain defects and deficiencies in the record, but principally because there is no transcript of the testimony adduced at the time of the hearing. This makes it unnecessary that we specifically discuss the particular assignments of error listed above. We do this because until the transcript of the testimony is before us, any pronouncement by us relative to the assignment of errors is premature. Further, absent a transcript of the testimony and expression by us as to the merits of the case would be purely advisory and premised on certain assumptions that may or may not be borne out by the testimony itself. In the case State In Interest of Aaron, 266 So.2d 726 (3rd La.App., 1972), our brethren of the Third Circuit discussed at length the applicability of L.R.S. 13:1579 and concluded that a juvenile court is required by law to record juvenile proceedings and to make the testimony available for transcription in the event of an appeal and particularly where the record indicates that the juvenile and/or his guardian are financially unable to pay for the transcript. Here, counsel was appointed to represent the juvenile because of his indigency and it necessarily follows that the juvenile in the instant matter is entitled to a copy of the proceedings to the end that he may effectively appeal.

Accordingly, for the above reasons, the adjudication of delinquency and the commitment of the juvenile to Louisiana Department of Corrections for an indefinite period is set aside and this matter is remanded for further proceedings.

Commitment set aside; case remanded.

WATSON, Judge ad hoc.

I agree that the commitment should be set aside and...