State v. Jacobs

Decision Date13 January 1984
Docket NumberNo. 82-282,82-282
Citation472 A.2d 1247,144 Vt. 70
CourtVermont Supreme Court
PartiesSTATE of Vermont v. David A. JACOBS.

Andrew B. Crane, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.


PECK, Justice.

This is an interlocutory appeal, 12 V.S.A. § 2386(b), V. R.A.P. 5(b)(1), instituted by defendant, a juvenile at the time these proceedings were commenced *, from an order of the district court dated February 26, 1982, denying his motion for transfer of his case to the juvenile court. 33 V.S.A. § 635(b). Defendant stood charged on the criminal docket of the court with one count of breaking and entering in the daytime with intent to commit larceny, in violation of 13 V.S.A. § 1202, and one count of receiving and aiding in the concealment of stolen property, contrary to the provisions of 13 V.S.A. § 2561.

In granting defendant permission to appeal, the court found that its order involved a controlling question of law, as to which there is substantial ground for difference of opinion. The question presented is the sufficiency of the findings to support the court's conclusion that defendant's case should not be transferred to the juvenile court.

Unlike the situation presented in State v. Powers, 136 Vt. 167, 385 A.2d 1067 (1978), there was, in the instant case, a hearing on the merits of the motion to transfer. Defendant was asked expressly by the trial court if he wished to present evidence. It is true that the procedure followed was dangerously informal, and not to be encouraged as a prototype. It consisted primarily of arguments by counsel for defendant and the deputy state's attorney (hereinafter state's attorney), and unsworn testimony made on behalf of defendant's position by his guardian ad litem, his mother and older sister, a representative of the State Department of Social and Rehabilitation Services, and by defendant himself. None of these statements were made under oath; nevertheless, the purported "findings" that are based thereon can not stand as such, since they are merely recitations of the statements and opinions of these witnesses. Krupp v. Krupp, 126 Vt. 511, 515, 236 A.2d 653, 655 (1967).

Defendant's prior record was conceded, and placed before the court without objection or dispute except as to its effect on his motion to transfer.

In a 1978 case involving a similar motion for transfer, Justice Larrow wrote on behalf of the Court:

33 V.S.A. § 635(b) makes transfer to juvenile court ... discretionary with the trial court. But we think more is involved than judicial whim, and that attainment of the salutary purposes of the juvenile statutes calls for the exercise of sound judicial discretion .... Adequate findings of fact are required, so that we may determine whether the sound discretion implicitly mandated by the statute was in fact exercised.... A hearing, and findings of fact resulting therefrom, must be accorded the respondent ... so that the purposes of the statute may be met.

State v. Powers, supra, 136 Vt. at 169, 385 A.2d at 1068 (citations omitted; emphasis added).

The requirement of a hearing having been satisfied in the instant case, we must determine whether the valid findings are supported by the evidence and, if they are, whether they are sufficient both to support the order and to inform the parties and this Court of the reasons for the order as an aid in determining whether the sound discretion on the part of the court below, required by Powers, has been exercised.

The findings, which state the prior record of the defendant while still a juvenile, are clearly supported. As noted above, his juvenile record was conceded and properly before the court as evidence for its consideration. It was not a good one. In June of 1978, defendant was charged in a delinquency petition with two counts of unlawful trespass involving property damage. However, this petition was dismissed by the state's attorney when restitution was made for the damages. The record does not show whether defendant made restitution from his own earnings, or if it was made for him.

On November 17, 1981, defendant admitted his guilt in connection with an unlawful trespass into a filling station in June 1981, and was adjudged a delinquent child. At the disposition hearing he was placed on probation, directed to be in his home from 7:00 p.m. to 6:00 a.m., to accept counseling as directed by his probation officer, to attend school, and to make restitution. The court found he had "substantially abided by his probation conditions."

On September 28, 1981, the instant case was commenced. The state's attorney filed an information charging defendant with breaking and entering in the daytime (on September 28, 1981) with intent to commit larceny in violation of 13 V.S.A. § 1202. A second information charging him with receiving stolen property (on October 4, 1981) contrary to the provisions of 13 V.S.A. § 2561 was filed on November 9, 1981. He entered a plea of not guilty to both charges, although for purposes of this proceeding, an affidavit of the investigating officer, appropos the first charge, indicates that he was discovered and detained by the property owner in the latter's home until the police arrived. Later at the police station he made an obscene gesture and shouted an obscene comment at the officers. An officer's affidavit concerning the second charge alleges that, in the presence of his mother and the officer, defendant "admitted that he was with (another person) when (the latter) busted into the juke box at Amy's game room. That he received from (the other person) about $15.00 that came out of the juke box." These two alleged offenses are involved in the present proceedings for which the transfer is requested. He was arraigned on both charges on September 28, 1981, and November 9, 1981, respectively.

Unfortunately, at least two of the court's findings are not findings at all. One of these merely recites the views of defendant's probation officer and his guardian ad litem without making any affirmative finding. Another purported finding simply summarizes the arguments and position of the state's attorney: "The State's Attorney felt ...," etc. Obviously, the prosecutor was not a witness, nor were his statements evidence. In any event, these purported findings are of the type we condemned in Krupp v. Krupp, supra, and in several decisions before and since. For whatever reason, they continue to recur from time to time. In short, they are merely the recitation of the testimony of witnesses, and here, indeed, even the views of a nonwitness. They are not, and cannot, stand as findings. Id.

In view of the above, our review is necessarily limited to those findings which are legitimate under Krupp. In the instant case they are virtually limited to those findings based upon the admitted evidence of defendant's record as a juvenile. We must determine their sufficiency.

Defendant's request for a certified question contained in his motion for an interlocutory appeal, and the lower court's adoption of that question, could have limited the scope of our review. The question asks if the findings are sufficient under Kent v. United States, 383 U.S. 541, 86...

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21 cases
  • Hansen v. State, s. 94-237
    • United States
    • Wyoming Supreme Court
    • October 18, 1995
    ...v. Young, 124 Ill.2d 147, 124 Ill.Dec. 516, 529 N.E.2d 497 (1988); Com. v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981); State v. Jacobs, 144 Vt. 70, 472 A.2d 1247 (1984). The Wyoming legislature has clearly and validly established the courts and transfer processes for the trial of criminal of......
  • Langle v. Kurkul
    • United States
    • Vermont Supreme Court
    • January 24, 1986
    ...Falls Hydro-Electric Corp., 112 Vt. 1, 6-7, 20 A.2d 117, 120 (1941). Nevertheless, the border line does exist, State v. Jacobs, 144 Vt. 70, 75, 472 A.2d 1247, 1250 (1984); to breach that line when it is reasonably discernable "violate[s] the border lines drawn by the constitutional doctrine......
  • State v. Buelow, 89-346
    • United States
    • Vermont Supreme Court
    • December 14, 1990
    ...out that the Legislature had not adopted specific standards for transfers from criminal to juvenile court. See State v. Jacobs, 144 Vt. 70, 74-75, 472 A.2d 1247, 1250 (1984) (declining to adopt specific standards for transfer to juvenile court under § 635(b) because it is not a "legitimate ......
  • State v. Fuller
    • United States
    • Vermont Supreme Court
    • April 14, 1995
    ...that is, by reading into it something which is not there, unless it is necessary in order to make it effective." State v. Jacobs, 144 Vt. 70, 75, 472 A.2d 1247, 1250 (1984) (emphasis in The trial court's analysis relies on in pari materia to apply to DUI processing not only the basic requir......
  • Request a trial to view additional results

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