State v. Tunzi
| Decision Date | 19 July 2001 |
| Docket Number | No. 20000728-CA.,20000728-CA. |
| Citation | 31 P.3d 588,2001 UT App 224 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Joseph TUNZI, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Joan C. Watt and John D. O'Connell, Jr., Salt Lake City, for Appellant.
Mark L. Shurtleff and J. Frederic Voros, Jr., Salt Lake City, for Appellee.
Before Judges BILLINGS, DAVIS, and ORME.
¶ 1 Joseph Tunzi challenges the district court's jurisdiction to enter a judgment of conviction for aggravated assault, a third degree felony, pursuant to Utah Code Ann. § 76-5-103(1)(b) (1999). We vacate the district court's judgment of conviction and remand to the district court with instructions to transfer the case to juvenile court for entry of an adjudication of guilt for third degree felony aggravated assault.
¶ 2 In the fall of 1998, when Tunzi was seventeen years old, he got into a fight with another young man. The State filed an information in juvenile court charging Tunzi with attempted murder. After a hearing held pursuant to Utah Code Ann. § 78-3a-602 (1996) (Serious Youth Offender Act), the juvenile court bound Tunzi over to district court to be tried as an adult.
¶ 3 Following a two day jury trial, the court instructed the jury on the elements of attempted murder and the lesser included offense of aggravated assault. The aggravated assault instruction included elements of both the second and third degree felony versions of that crime. After deliberating, the jury found Tunzi not guilty of attempted murder and guilty of aggravated assault.1 However, because the aggravated assault instruction contained elements of both the second and third degree felony versions of aggravated assault, Tunzi moved for a new trial or, in the alternative, entry of a conviction for aggravated assault as a third degree felony. The State conceded that the appropriate remedy for the equivocal instruction and general verdict was conviction for aggravated assault as a third degree felony.
¶ 4 After the State conceded that Tunzi should be convicted for aggravated assault as a third degree felony, Tunzi moved the court to remand his case to the juvenile court. Tunzi argued that the district court would lose jurisdiction if he was found guilty of third degree felony aggravated assault because that offense is not one of the serious youth offender offenses enumerated in section 78-3a-602(1) allowing bind-over. The district court denied Tunzi's motion to remand the case to juvenile court and entered a judgment of conviction for the third degree felony version of aggravated assault. The court then sentenced Tunzi to serve an indeterminate term of zero to five years in the Utah State Prison.2
¶ 5 Tunzi appealed his conviction arguing that the district court erred when it refused to remand his case to juvenile court. Tunzi also argued there was insufficient evidence to support his conviction for aggravated assault. After filing his notice of appeal, Tunzi discovered that the videotape and transcript from one day of his trial were missing. Tunzi then moved for summary reversal, and the State conceded that reversal was appropriate. The court of appeals denied Tunzi's motion and remanded the case to the trial court to reconstruct the record pursuant to Rule 11(g) of Utah Rules of Appellate Procedure. Tunzi appealed the court of appeals decision to the Utah Supreme Court. On certiorari, the supreme court reversed the court of appeals and remanded the case to the trial court for a new trial. See State v. Tunzi, 2000 UT 38, 998 P.2d 816
. The supreme court held that reconstruction of the record was inappropriate because "[t]he burdens and futility associated with reconstructing a record are increased exponentially when the issue on appeal concerns the sufficiency of the evidence supporting a conviction. . . ." Id. at ¶ 3. Neither the court of appeals nor the supreme court addressed the merits of Tunzi's first appeal.
¶ 6 On remand, the State moved to proceed under the original information charging Tunzi with attempted murder.3 However, pursuant to plea negotiations, the State amended the original information to charge Tunzi with the third degree felony version of aggravated assault. Tunzi pleaded guilty to this charge; however, he did not renew his motion to remand his case to juvenile court. In accordance with the plea agreement, the district court again sentenced Tunzi to zero to five years in the Utah State Prison. However, the court gave Tunzi credit for the twenty-one months he had already served and suspended the remainder of the sentence. Tunzi appeals the district court's judgment of conviction.
¶ 7 Whether the Serious Youth Offender Act required the district court to remand Tunzi's case to the juvenile court involves a question of statutory construction which "we review for correctness and give no deference to the conclusions of the trial court." Adkins v. Uncle Bart's, Inc., 2000 UT 14, ¶ 11, 1 P.3d 528.
¶ 8 Tunzi asserts, pursuant to the Serious Youth Offender Act, the district court lost jurisdiction and was required to remand the case to juvenile court when the jury acquitted him of the attempted murder charge and found him guilty of what was ultimately determined to be third degree felony aggravated assault.
¶ 9 The Serious Youth Offender Act provides the procedure by which a juvenile may be "bound over and held to answer in the district court in the same manner as an adult. . . ." Utah Code Ann. § 78-3a-602(3)(b) (1996). One of the prerequisites for binding a minor over to district court is that the minor be charged with one of the specifically enumerated offenses listed in the Serious Youth Offender Act. See id. § 78-3a-602(1)(a) ().4 However, the Serious Youth Offender Act also provides: "The juvenile court under Section 78-3a-104 and the Division of Youth Corrections regain jurisdiction and any authority previously exercised over the juvenile when there is an acquittal, a finding of not guilty, or dismissal of the charges in the district court."5Id. § 78-3a-602(10).
¶ 10 As the above language clearly indicates, the Serious Youth Offender Act defines the jurisdictional parameters of both the juvenile court and the district court in those instances when a minor is charged with one of the offenses listed in section 78-3a-602(1)(a). Therefore, the Serious Youth Offender Act provides the district court with subject matter jurisdiction over minors bound over to that court.6 See Franklin Covey Client Sales v. Melvin, 2000 UT App 110, ¶ 24 n. 3, 2 P.3d 451
(). Consequently, any jurisdictional defect arising from misapplication of the statute cannot be waived. See James v. Galetka, 965 P.2d 567, 570 (Utah Ct.App.1998) (); In re E.G.T., 808 P.2d 138, 139 (Utah Ct.App.1991) ().
¶ 11 Here, the State argues that Tunzi waived his right to appeal when he pleaded guilty to third degree felony aggravated assault. See id. at 140 (). However, as stated above, the Serious Youth Offender Act confers subject matter jurisdiction on the district court. Therefore, Tunzi did not waive his claim of error when he pleaded guilty to the charge of third degree felony aggravated assault. Consequently, we address the merits of Tunzi's appeal.
¶ 12 The State charged Tunzi with attempted murder, and the juvenile court bound Tunzi over to district court pursuant to the Serious Youth Offender Act. Tunzi was then tried in district court where a jury acquitted him of attempted murder. Consequently, Tunzi was acquitted of the original charge that supported the juvenile court's bind-over to district court. Further, Tunzi was found guilty of the lesser included offense of aggravated assault, and due to the ambiguous jury verdict, the court in effect dismissed the charge of second degree felony aggravated assault.7
¶ 13 The State argues that the juvenile court did not regain jurisdiction over Tunzi because Tunzi was not acquitted of second degree felony aggravated assault—an offense allowing bind-over under the Serious Youth Offender Act. However, the State ignores the language of the Serious Youth Offender Act which states that the juvenile court regains jurisdiction if "there is an acquittal, a finding of not guilty, or dismissal of the charges in the district court." Id. § 78-3a-602(10) (emphasis added). Upon the finding of not guilty of attempted murder and the court's decision to grant Tunzi's motion to enter a conviction of third degree felony aggravated assault, the juvenile court regained jurisdiction over Tunzi because there was "a finding of not guilty [and] dismissal of the charges [enumerated in section 78-3a-602(1) and allowing bind-over to] district court." Utah Code Ann. § 78-3a-602(10) (1996). Accordingly, we conclude that the trial court erred when it denied Tunzi's motion to transfer jurisdiction back to the juvenile court prior to entry of his conviction.
¶ 14 Finally, the State argues that the district court retained jurisdiction over Tunzi because Tunzi was convicted of an offense arising out of the same criminal episode. In support of its argument, the State points to subsection 7 of the Serious Youth Offender Act. See Utah Code Ann. § 78-3a-602(7) (1996). Subsection 7 provides:
When a defendant is charged with multiple criminal offenses in the same information or indictment and is bound over to answer in the district court for one or more charges under this section,...
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