State ex rel. C.V.

134 So. 3d 211, 13 La.App. 3 Cir. 1207, 2014 WL 852720, 2014 La. App. LEXIS 586
CourtLouisiana Court of Appeal
DecidedMarch 5, 2014
DocketNo. 13-1207
StatusPublished

This text of 134 So. 3d 211 (State ex rel. C.V.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. C.V., 134 So. 3d 211, 13 La.App. 3 Cir. 1207, 2014 WL 852720, 2014 La. App. LEXIS 586 (La. Ct. App. 2014).

Opinion

GREMILLION, Judge.

|2C.V., a juvenile, was found in possession of marijuana while at Judice Middle School in Lafayette, Louisiana. The Juvenile was charged by petition with one count of possession of marijuana, a violation of La.R.S. 40:966. The Juvenile entered a denial to the charge on March 18, 2013. On September 4, 2013, the trial court adjudicated him a delinquent for having possessed marijuana. On that same date, the trial court entered the following disposition: “six months suspended and six months active supervised probation.” The trial court also ordered a drug screen within twenty-four hours. The Juvenile is now before this court, alleging one assignment of error. We affirm.

ERRORS PATENT

Although the Louisiana Children’s Code is silent on whether a juvenile criminal proceeding is entitled to an errors patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State ex reí. J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. There are several errors patent.

There are two errors in the petition. Louisiana Children’s Code Article 845 provides that the petition shall contain the “name, date, and place of birth, sex, race, address, and present location of the child.” The petition filed in the present case fails to allege the Juvenile’s place of birth. Additionally, the petition mistakenly states that the Juvenile is a female. The Juvenile alleges no prejudice due to the petition’s failure to set forth his place of birth and mistakenly stating that he is a female. Accordingly, these defects in the petition are harmless and require no action by this court.

[oThe trial court failed to advise the Juvenile of his rights as required by La. Ch.Code art. 855 when he appeared to answer the allegations contained in the petition.

Louisiana Children’s Code- Article 855 states in pertinent part:

A. When the child appears to answer the petition, the court shall first determine that the child is capable of understanding statements about his rights under this Code.
B. If the child is capable, the court shall then advise the child of the following items in terms understandable to the child:
(1) The nature of this delinquency proceeding.
(2) The nature of the allegations of the petition.
[214]*214(3) His right to an adjudication hearing.
(4) His right to be represented by an attorney, his right to have counsel appointed as provided in Article 809, and his right in certain circumstances authorized by Article 810 to waive counsel.
(5) His privilege against self-incrimination.
(6) The range of responses authorized under Article 856.
(7) The possible consequences of his admission that the allegations are true, including the maximum and minimal dispositions which the court might impose pursuant to Articles 897 through 900.

The transcript of the proceeding to answer the petition reflects that the Juvenile was arraigned and entered a denial to the charge. The transcript of this proceeding does not indicate that the Juvenile was advised of his rights pursuant to La.Ch. Code art. 855. In State ex reí. K.G., 34,-535 (La.App. 2 Cir. 1/24/01), 778 So.2d 716, the trial court failed to advise the juvenile of the enumerated rights in La.Ch.Code art. 855 when he appeared to answer the allegations of the delinquency petition. In determining that the error was harmless, the appellate |4court noted that the juvenile was represented by counsel and entered a denial of the charge. See also State ex rel. J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633. In this case, the juvenile entered a denial and was represented by counsel. Additionally, the record indicates that the Juvenile proceeded without objection to the adjudication hearing. See State ex rel. Z.S., 01-1099 (La.App. 5 Cir. 2/26/02), 811 So.2d 1003. Accordingly, the error is harmless and/or waived.

On the face of the record, the adjudication was not commenced within the time period mandated by La.Ch.Code art. 877, which provides:

A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In all other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In State ex rel. R.D.C., Jr., 93-1865 (La.2/28/94), 632 So.2d 745, 749, the court held: “In sum, we find that La.Ch.Code art. 877 sets out mandatory time limits within which the adjudicatory hearing must be commenced. These limits may only be extended by the court based on a finding of good cause.”

In this case, the Juvenile appeared in court to answer the petition on March 13, 2013. The adjudication was held on September 4, 2013, almost six months later. Nothing in the record indicates that the Juvenile was held in continued custody for this misdemeanor offense; thus, the ninety-day period applies. On RMay 8, 2013, the date of the timely-set initial hearing, the Juvenile’s attorney requested and was granted a continuance. The trial court set the adjudication hearing for June 12, 2013, one day after the ninety-day period had [215]*215elapsed. See La.Ch.Code art. 114. The court minutes do not indicate a reason for the continuance. On June 12, 2013, the court minutes indicate that the Juvenile’s attorney requested and was granted a continuance. The trial court set the hearing date for September 4, 2013. The ground for the continuance was that new counsel enrolled on behalf of the Juvenile. The Juvenile’s attorney requested that the legal delays be waived.

In State ex rel. K.E.C., 10-953 (La.App. 3 Cir. 12/8/10), 54 So.3d 735, and State ex rel. N.F., 13-589 (La.App. 3 Cir. 11/6/13), 124 So.3d 1262, this court recognized untimely adjudication as an error patent.

In N.F., the adjudication was initially timely set. However, because of continuances, the adjudication was held outside of the mandatory periods set forth in Article 877. This court recognized as an error patent that the record indicated the adjudication was untimely held, and it found the error harmless, holding in pertinent part:

Pursuant to La.Ch.Code art. 877, N.F.’s adjudication hearing should have been set within sixty to ninety days of July 12, 2012, depending on whether he was continued in custody, except for good cause shown. It was initially set for August 9, 2012, which is within the sixty-day time period. The trial court reset the adjudication date to October 4, 2012.

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Bluebook (online)
134 So. 3d 211, 13 La.App. 3 Cir. 1207, 2014 WL 852720, 2014 La. App. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cv-lactapp-2014.