In re Appeal No. 1258

360 A.2d 27, 32 Md. App. 225, 1976 Md. App. LEXIS 420
CourtCourt of Special Appeals of Maryland
DecidedJune 30, 1976
DocketNo. 1258
StatusPublished
Cited by1 cases

This text of 360 A.2d 27 (In re Appeal No. 1258) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Appeal No. 1258, 360 A.2d 27, 32 Md. App. 225, 1976 Md. App. LEXIS 420 (Md. Ct. App. 1976).

Opinion

* Orth, C. J.,

delivered the opinion of the Court.

THE JURISDICTION OF THE JUVENILE COURT

Chapter 554, Acts 1975, effective 1 July 1975, repealed former §§ 3-801 to 3-842, comprising Subtitle 8, “Juvenile Causes”, of the Courts and Judicial Proceedings Article, and enacted new §§ 3-801 to 3-833 in lieu thereof.1 Under the new law, court means “the circuit court of a county or Baltimore [227]*227City sitting as the juvenile court. In Montgomery County, it means the district court sitting as the juvenile court.” § 3-801 (g). The general jurisdiction of the court is spelled out in § 3-804. Ordinarily, it has exclusive original jurisdiction over a child alleged to be delinquent, in need of supervision, or in need of assistance. § 3-804 (a). But see § 3-804 (d). A child is a person under the age of 18 years. § 3-801 (c). The determination of jurisdiction upon an allegation that a child is delinquent2 is controlled by “the age of the child at the time the alleged delinquent act was committed”, § 3-805 (a), as distinguished from all other cases, where it is the age of the child at the time the petition is filed which controls the determination of jurisdiction, § 3-805 (b).3 When a person is subject to the jurisdiction of the court, he may not be prosecuted for a criminal offense committed before he reached 18 years of age unless jurisdiction has been waived. § 3-807 (a). Subsection (b) of § 3-807 then provides:

“The court has exclusive original jurisdiction, but only for the purpose of waiving it, over an adult who is alleged to have commited a delinquent act while a child.”

The provisions of § 3-805 (a), read with the provisions of § 3-807 (b), present problems. They were recognized by the Circuit Court for Kent County in two proceedings recently before it. In each case a person was alleged to have committed a delinquent act when he was under the age of 18 years. He was over the age of 18 years when new § § 3-805 (a) and § 3-807 (b) became effective, when a petition was filed charging him with being a delinquent child and when the petition came on for hearing in the Juvenile Court. The [228]*228Juvenile Court dismissed the petitions. The State noted appeals and the cases were docketed in this Court in the September Term, 1975, as In Re Appeal No. 1022 and In Re Appeal No. 1081.4 The Court of Appeals granted certiorari prior to decision by us and docketed the cases as No. 142, September Term, 1975. It issued a Per Curiam Order:

“For reasons to be stated in an opinion to be filed later, it is this 8th day of March, 1976
ORDERED, by the Court of Appeals of Maryland, that the orders of the Circuit Court for Kent County sitting as a Juvenile Court dismissing the Juvenile Petitions be, and they are hereby, affirmed with costs to be paid by the State of Maryland, and it is further
ORDERED that the mandate be issued forthwith.”

In No. 1022 Rasin, J., presiding in the Juvenile Court, explained to the prosecutor why he was dismissing the petition for lack of jurisdiction:

“[Y]ou are faced with a quirk of the law — I didn’t agree with the provision when they rewrote the juvenile statute — but the present law says that Juvenile Court has jurisdiction over people who are 18 when the charges are brought only for the purpose of waiving jurisdiction, if the act was committed before the child was 18. We don’t have any jurisdiction, as we did under the old law, to go ahead and try the case and do anything about it. So, I think you are caught with a technicality here the Court must look at as if the hearing were held at a time when the child was under 18, and would the Court have waived jurisdiction at that time. If the Court would have, okay, we’ll waive it now and you can be treated as an adult. But if the Court would not have, then we don’t waive [229]*229jurisdiction and we have no jurisdiction — we won’t waive the jurisdiction which we don’t have. It seems to me it is a little ridiculous. But anyway, it is an automatic dismissal of the petition. So I think that is what you are faced with here. Because obviously, if this case had come to me before he was 18, under these circumstances I would not have waived jurisdiction. I would have kept him in the juvenile court.”

In No. 1081 Judge Rasin said in dismissing the petition:

“As a matter of fact, there is a difference of opinion as to whether the Court can do anything but waive, or whether it can proceed with a juvenile hearing if it doesn’t waive. It seems clear to me. . . . Because I think the law is set up as sort of a no-man’s-land which protects a first offender, which I don’t think was really intended by the people who drafted the statute, to provide that one who commits an act before he is 18, and isn’t charged until after he is 18, and if he had no prior record he goes scot-free. That seems to be the concensus on the part of most of the people who have had to deal with this particular part of the law. It is highly unsatisfactory. ... Well, as unfortunate as I think it is, from both the point of view of the interests of the public, and the interests of this Respondent, and considering the fact that there was no prior misbehavior that had been brought to the attention of the authorities or juvenile services, and what we are dealing with is a 17 year-old boy, who is alleged to be involved in a breaking and entering, and under those circumstances the Court would not have waived jurisdiction, and the fact that he is now 18 is insufficient as a fact to waive jurisdiction, because if that had been the intention then the law would have been drafted so that anyone who is found to have committed a crime before he was 18, with [230]*230discovery being made after he was 18, would automatically be tried as an adult offender, and that would have been the easy answer to the problem. So the Court will deny waiver which in effect terminates the case, because the Court does not have jurisdiction over anyone who is now 18. It has been suggested that in situations like this the State should have at least maybe three years, and would provide that in the event it was detected after 18, that the Juvenile Court, in those situations, could have jurisdiction until the person is 21. That at least gives you three years to cover a situation such as this, so that the Juvenile Court can go ahead and try them. But right now the law says you don’t have any jurisdiction over a person, where the petition is initiated after he is 18.”

It is manifest in the action taken by the Court of Appeals that it is in accord with the court below that in the circumstances the Juvenile Court had jurisdiction “only for the purpose of waiving it” and not for the purpose of determining delinquency vel non at an adjudicatory hearing, See 60 Op. Atty. Gen., filed 30 June 1975.

WAIVER OF JURISDICTION BY THE JUVENILE COURT

The Juvenile Court may waive its exclusive jurisdiction as to a child who is 15 years of age or older after a waiver hearing, held prior to an adjudicatory hearing upon due notice. Courts Art. § 3-817 (a) (1) and (b). To waive its jurisdiction, the court must determine, from a preponderance of the evidence, “that the child is an unfit subject for juvenile rehabilitative measures.” Subsection (c). In making the determination whether to waive, the court is required by subsection (d) to consider:

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Related

In re Appeal No. 1038
360 A.2d 18 (Court of Special Appeals of Maryland, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
360 A.2d 27, 32 Md. App. 225, 1976 Md. App. LEXIS 420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-appeal-no-1258-mdctspecapp-1976.