J.D.B. v. State

819 So. 2d 638, 2001 Ala. Crim. App. LEXIS 205, 2001 WL 1149527
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 28, 2001
DocketCR-99-2318
StatusPublished

This text of 819 So. 2d 638 (J.D.B. v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.D.B. v. State, 819 So. 2d 638, 2001 Ala. Crim. App. LEXIS 205, 2001 WL 1149527 (Ala. Ct. App. 2001).

Opinion

SHAW, Judge.

On May 2, 2000, three separate delinquency petitions were filed against the appellant, J.D.B., in the Lauderdale County Juvenile Court. In case no. JU-95-549.24, the appellant was charged with breaking and entering a vehicle, a violation of § 13A-8-ll(b), Ala.Code 1975. In case no. JU-95-549.25, the appellant was charged with theft of property in the third degree, a violation of § 13A-8-5, Ala.Code 1975. In case no. JU-95-549.26, the appellant was charged with consuming aleo-[639]*639hoi while under 21 years of age, a violation of § 28-1-5, Ala.Code 1975. After the State moved to transfer the appellant to the circuit court to stand trial as an adult on all three charges, the juvenile court, on July 27, 2000, held a transfer hearing and on that same day issued an order transferring the appellant to the circuit court. That order was filed in the circuit clerk’s office on August 2, 2000. The appellant filed a motion for a new hearing on the transfer issue (the equivalent of a motion for a new trial) on August 11, 2000, see Rule 1, Ala. R. Juv. P., arguing that the State had failed to establish probable cause to believe that the appellant had committed the breaking-and-entering and theft-of-property offenses. The appellant did not allege in that motion that the juvenile court’s order with respect to the alcohol charge was erroneous, and he does not raise that issue on this appeal. On that same day, August 11, 2000, the appellant filed a notice of appeal. The juvenile court later denied the motion on August 15, 2000, four days after the appellant had filed his notice of appeal.

The appellant raises two issues — whether the juvenile court’s finding of probable cause with respect to the breaking-and-entering and theft-of-property charges is clearly erroneous. The State’s sole argument on appeal is that the appellant failed to file a timely notice of appeal. Citing J.M.V. v. State, 651 So.2d 1087 (Ala.Crim.App.1994), and Ex parte Smith, 546 So.2d 976 (Ala.1986), the State makes the following argument:

“Here, the record reflects that the transfer order was issued and entered on July 27, 2000. J.D.B. had 14 days from that date [see Rule 1, Ala. R. Juv. P.], or until August 10, 2000, in which to file a timely motion for new trial and/or notice of appeal. Both his motion for new trial and his notice of appeal were filed on August 11, 2000, one day late. Because the motion for new trial was late, it did not suspend the time for giving notice of appeal.”

(State’s brief at p. 4.)

The State takes the position that this appeal is due to be dismissed for lack of jurisdiction. The State makes no argument with respect to the merits of the case.

We note initially that this appeal is properly before this Court. Rule 28(c), Ala. R. Juv. P., provides: “Written notice of appeal shall be filed within 14 days of the date the judgment, order, or decree appealed from is filed in the clerk’s office, whether the appeal is to an appellate court or to the circuit court for trial de novo.” (Emphasis added.) The language emphasized above was added to Rule 28(c) by an amendment that became effective on July 1,1998. Consequently, the State’s reliance on J.M.V. v. State, supra, which predated the 1998 amendment, is misplaced. The State correctly points out that the appellant’s motion for a new trial was untimely and, therefore, that its filing could not have suspended the time for filing the notice of appeal. However, the appellant filed his notice of appeal on August 11, 2000, within 14 days of the date the transfer order was filed with the circuit clerk— August 2, 2000.

As noted, the appellant challenges the juvenile court’s finding of probable cause. In J.S.J. v. State, 666 So.2d 109, 110 (Ala.Crim.App.1995), this Court stated:

“The probable cause hearing is governed by a ‘reasonably prudent man’ standard, which defines probable cause as ‘that which warrants a man of reasonable prudence and caution in believing that the offense has been committed and that the juvenile in question is the offender.’ M.B. v. State, 641 So.2d 330, 332 (Ala.Crim.App.1994). The juvenile [640]*640court’s finding of probable cause will not be reversed unless it is clearly erroneous. M.B.”

See also J.M.V. v. State, supra, at 1090-92, for a full discussion of this Court’s standard for reviewing probable cause findings under § 12-15-34, Ala.Code 1975.

The appellant was charged with breaking and entering a vehicle in violation of § 13A-8-ll(b), which provides:

“A person commits the crime of unlawfully breaking and entering a vehicle if, without the consent of the owner, he breaks into and enters a vehicle or any part of a vehicle with the intent to commit any felony or theft.”

The appellant acknowledges, and the evidence indicated, that the police found him inside a vehicle without the permission of that vehicle’s owner. The appellant argues that no evidence was presented at the transfer hearing indicating that he intended to commit a felony or theft while inside the vehicle. However, after examining the transcript of the transfer hearing, we conclude that there was sufficient evidence from which the juvenile court could have found that a reasonable man would believe that the appellant entered the vehicle for the purpose of committing a felony or theft. During the testimony of the arresting officer, the following transpired:

“THE COURT: Also there’s a theft of property charge. Is that in connection with this same set of facts?
“Q. What was the basis for charging him with theft of property?
“A. There was an older — like a car stereo that was inside the glove box, and the owner of the truck said that the glove box was actually closed and it was [sitting] inside the glove box. When we got there, the radio had been removed. The glove box was open, and it was [sitting] in the seat beside him.
“Q. Had he actually taken it with him?
“A. He had taken it out of the glove box.
“[Appellant’s counsel]: Your Honor, here I want to object to any testimony about a radio. He’s charged with theft of a bottle of cologne.
“THE COURT: In the .25 case [JU-95-549.25]?
“[Appellant’s counsel]: Yes, sir.
“Q. Officer, tell me about—
“[Appellant’s counsel]: So I would object to any testimony about a radio and move to strike.
“THE COURT: Sustained.
“[Prosecutor]: Tell me about the ... cologne?
“A. The ... cologne I do not remember.
[[Image here]]
“Q. And so you don’t know the facts surrounding [the appellant] taking a bottle of ... cologne?
“A. That I do not.
“THE COURT: Was there another officer that may know?
“THE WITNESS: Yes, sir.
“THE COURT: Okay.”

(R. 9-10.)

The appellant challenged the sufficiency of the evidence at the close of the hearing, arguing that the evidence concerning the radio had been struck.

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Related

Smith v. State
546 So. 2d 976 (Supreme Court of Alabama, 1986)
M.B. v. State
641 So. 2d 330 (Court of Criminal Appeals of Alabama, 1994)
J.M.V. v. State
651 So. 2d 1087 (Court of Criminal Appeals of Alabama, 1994)
J.S.J. v. State
666 So. 2d 109 (Court of Criminal Appeals of Alabama, 1995)

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Bluebook (online)
819 So. 2d 638, 2001 Ala. Crim. App. LEXIS 205, 2001 WL 1149527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jdb-v-state-alacrimapp-2001.