In re Becker

314 N.E.2d 158, 39 Ohio St. 2d 84, 68 Ohio Op. 2d 50, 1974 Ohio LEXIS 401

• Court: Ohio Supreme Court
• Decided: July 10, 1974
• Docket: No. 74-124
• Status: Published

Opinions

Celebrezze, J.

R. C. 2501.02, in' pertinent part, provides :

íí# # # the court [of appeals] shall have jurisdiction:

“ (A) Upon an appeal upon questions of law to review, affirm, modify, set aside, or reverse judgments or final orders of courts of record inferior to the Court of Appeals within the district, including the finding, order or judgment of a Juvenile Court that a child is delinquent, neglected, or dependent, for prejudicial error committeed by such lower court * * (Emphasis added.)

Appellant argues that since the Juvenile Court may transfer a case to the Court of Common Pleas for criminal prosecution pursuant to R. C. 2151.26 without making a determination of delinquency, that transfer is not a final, appealable order.

Amended R. C. 2151.26, in pertinent part, provides: (A) After a complaint has been filed alleging that a child is delinquent by reason of having committed an act which would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations:

“ (1) The child was fifteen or more years of age at the time of the conduct charged;

“(2) There is probable cause to believe that the child committed the act alleged;

“(3) After an investigation including a mental and physical examination of such child * * * that there are reasonable grounds to believe that:

“(a) He is not amenable to care or rehabilitation in any facility designed for the care, supervision,, and rehabilitation of delinquent children;

“(b) The safety of the community may require that he be placed under legal restraint, including, if necessary, for the period extending beyond his majority.

urn * *

“(E) * * * Such transfer abates the jurisdiction of the Juvenile Court with respect to the delinquent acts alleged in the complaint.”

Prior to this amendment, which became effective in substantially the same form on November 19, 1969, when a finding of delinquency was made and a transfer was ordered, that finding, coupled with the transfer, was held to be a final, appealable order. In re Whittington (1969), 17 Ohio App. 2d 164, 175.

Appellant asserts that the transfer order which was itiade in this cause does not contain a finding of delinquency, so that Whittington and cases following it are inapposite. Since there has been no finding of delinquency, the order of transfer is not an appealable order pursuant to R. C. 2501.02. Specifically, absent a finding that a child is delinquent, neglected, or dependent, no appeal is available.

This court finds the rationale of People v. Jiles (1969), 43 Ill. 2d 145, 150, 251 N. E. 2d 529, especially persuasive:

“To permit interlocutory review of such an order would obviously delay the prosecution of any proceeding in either the juvenile or the criminal division, with the result that the prospect of a just disposition would be jeopardized. In either proceeding the primary issue is the ascertainment of the innocence or guilt of the person charged. To permit interlocutory review would subordinate that primary issue and defer its consideration while the question of the punishment appropriate for a suspect whose guilt has not yet been ascertained is being litigated in reviewing courts. We are unwilling to sanction such a procedure.”

Although the juvenile procedure in Illinois is entirely different from our own, that same rationale is applicable to our statutory scheme. The General Assembly has shown great concern for the speedy and just disposition of criminal proceedings, e. g., R. C. 2945.71 — time within which hearing or trial must be held; and R. C. 2945.73 — discharge for delay in trial.

It is not necessary to examine Dickens’ Bleak House in order to perceive the prospect that a just disposition can be jeopardized by delay. The history of In re Whittington, supra, as reported (page 170), provides ample evidence :

“After two years and six appeals this case has been before the Juvenile Court, the Common Pleas Court, the Fifth District Court of Appeals, the Supreme Court of Ohio, the United States Supreme Court and is now again before this Court of Appeals. * * * and as a result of the numerous appeals filed and issues raised prior to determination there has been no final determination in this case to this day.”

Now, this court has taken other affirmative action to put an end to unnecessary delay, as has the General Assembly. It is time for an end to endless appeals that perpetuate procrastination, and a time for this court to give direction and a definite order of instruction determining the path of appellate procedure in these matters.

We hold that a transfer order, pursuant to It. C. 2151.-26, absent a finding of delinquency, is not a final, appeal-able order, and that any error complained of must be raised in an appeal from the judgment of the Court of Common Pleas.

For the foregoing reasons, the judment of the Court of Appeals is reversed.

Judgment reversed.

Herbert, Corrigan and P. Brown, JJ., concur. O’Neill, C. J., Stern and W. Brown, JJ., dissent.