Harris v. State

398 N.E.2d 1346, 73 Ind. Dec. 504, 1980 Ind. App. LEXIS 1258

• Court: Indiana Court of Appeals
• Decided: January 15, 1980
• Docket: 3-777A184
• Status: Published

Opinions

GARRARD, Presiding Judge.

Harris, who was seventeen years old, had a delinquency petition filed against him on October 5, 1976. After hearing, the juvenile court waived jurisdiction and determined that he should be tried as an adult for the offense of first degree burglary. Three months later the state added conspiracy to commit a felony as a second charge. After trial by jury he was convicted of entering to commit a felony and conspiracy.

We reverse the conviction for conspiracy on authority of Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320. Conspiracy is not an included offense to the burglary charge. It was not considered by thé juvenile court nor waived by it, so the criminal court acquired no jurisdiction to try Harris on that charge.

However, we find Harris’ conviction for entering to commit a felony should stand.

He first asserts that the juvenile court acquired no jurisdiction because there was no preliminary inquiry or hearing before the court authorized the filing of a juvenile petition. IC 31 — 5—7—8 (repealed) authorized that procedure.

We note that the statute applies not only to proceedings concerning delinquent children but to dependent or neglected children as well. Furthermore, the statute appears to be directory since it qualifies the procedure by the phrases “as far as possible” and “whenever practicable.” Thus, it may well be that the importance of the preliminary investigation was intended more for those situations not involving the commission of acts which would constitute crimes if committed by adults. On the other hand, we also recognize that two cases have applied this portion of the statute as a jurisdictional requirement. See Ingram v. State (1974), 160 Ind.App. 188, 310 N.E.2d 903; Seay v. State (1975), Ind.App., 337 N.E.2d 489, reh. denied Ind.App. 340 N.E.2d 369.¹

The record before us does not contain a transcript of this preliminary investigation. The court’s order authorizing the filing of a juvenile petition, however, recites that the preliminary determination was made.

We need not resolve these potential conflicts, however, since another circumstance is dispositive. Where there is general jurisdiction of a criminal case, a jurisdictional infirmity of the particular case can be waived. Rogers v. State (1949), 227 Ind. , 88 N.E.2d 755. Stated somewhat differently, the procedural steps by which jurisdiction is invoked may be waived. Green v. State (1952), 230 Ind. 400, 103 N.E.2d 429, cert. denied 343 U.S. 987, 72 S.Ct. 1084, 96 L.Ed. 1374; Bledsoe v. State (1945), 223 Ind. 675, 64 N.E.2d 160.²

Here no objection was made in the juvenile court, the trial court or the motion to correct errors concerning the preliminary investigation or lack thereof. Moreover, the lack of such preliminary determination does not appear to have transgressed any of Harris' constitutional rights so as to constitute fundamental error.

Therefore, assuming arguendo that the court failed to conduct the preliminary investigation prescribed by IC 31-5-7-8 and that the failure would constitute reversible error under Ingram had objection been made, we find the error waived for Harris’ failure to make timely objection thereto.

The same reasoning disposes of Harris’ contention that the court’s findings after the waiver hearing were inadequately stated. He failed to preserve error by making any objection thereto prior to filing his appellate brief. However, we offer a further observation about his argument which is premised upon Atkins v. State (1972), 259 Ind. 596, 290 N.E.2d 441 and the legislative presumption that juveniles should be treated within the juvenile system.

At the time of Harris’ offense and prosecution the 1976 amendments to IC 31-5-7—14 had become effective. Under the amended statute, whenever a juvenile was at least sixteen (16) years of age and was charged with conduct which amounted to first degree burglary, or one of several other specified crimes, upon motion of the prosecutor the court was directed to waive juvenile jurisdiction unless it found either that there was probable cause to believe the charge did not have specific prosecutive merit or that it would be in the best interests of the child and of public welfare and public security for him to remain within the juvenile system. After the waiver hearing the court found that Harris was seventeen and the offense charged was first degree burglary. These findings invoked the application of IC 31-5-7-14(b). Under those circumstances it was incumbent upon Harris to come forward with evidence to establish that he should be retained in the juvenile system. Absent any such showing, waiver was proper and the court’s general findings that the offense had prosecutive merit and that the public interest was best served by trial in adult court were adequate. Gregory v. State (1979), Ind., 386 N.E.2d 675.

Finally, Harris complains about the introduction of four exhibits into evidence. They consist of items stolen in the burglary. Each was identified by the victim. Three were identified by a police officer as having been found on Harris and the fourth (a medal) as having been found in the police car after Harris was brought in. Chain of custody was sufficiently established for all the items and they were properly identified and introduced at trial.

The conviction for entering to commit a felony is affirmed. The case is remanded to the trial court with instructions to vacate the conviction and sentence for conspiracy.

HOFFMAN, J., concurs. STATON, J., dissents and files separate opinion.

1 . The opinion denying rehearing in Seay makes it clear that the preliminary hearing is not adjudicatory.

2 . We cite these cases to show that waiver of questions of jurisdiction of the particular case are proper even under the strictures of the criminal law. Juvenile proceedings are considered civil in nature and there the waiver principal is more familiar. See, e. g., State ex rel. Dean v. Tipton Cir. Ct. (1962), 242 Ind. 642, 181 N.E.2d 230.