State in Interest of Jashua

327 So. 2d 429

• Court: Louisiana Court of Appeal
• Decided: March 12, 1976
• Docket: 7633
• Status: Published

Opinion

327 So.2d 429 (1976)

STATE of Louisiana In the Interest of Clifton Antoine JOSHUA.

No. 7633.

Court of Appeal of Louisiana, Fourth Circuit.

February 5, 1976. Writs Refused February 6 and March 12, 1976.

PEREMPTORY WRIT

Relator's application for writs is directed to the refusal of the Juvenile Court for the Parish of Orleans to grant a preliminary examination (probable cause hearing).

Relator was arrested on January 11, 1976 and subsequently on January 14, 1976 a petition was filed alleging him to be a delinquent in that he had violated LSA-R.S. 14:64 relative to robbery and LSA-R.S. 14:27(64) relative to attempted armed robbery. On January 15, 1976 a detention hearing was held at which time relator presented to the court a motion for a preliminary examination (probable cause hearing) which was denied by the Judge conducting the detention hearing. The relator was detained (LSA-R.S. 13:1578.1) in the New Orleans Youth Study Center in lieu of bond. The motion for a preliminary examination was presented on January 20, 1976, to the Judge of the section of the Court to which relator's case is alloted and the motion was again denied.

Relator has been proceeded against via a petition (a sworn affidavit of the charges; See LSA-R.S. 13:1574). Pugh v. Rainwater, 332 F.Supp. 1107, 1114, (S.D.Fla.1971), aff'd 483 F.2d 778 (5th Cir. 1973), aff'd sub nom., Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) requires that an accused adult be accorded a preliminary hearing to challenge a pre-trial incarceration under the standard of probable cause when such pre-trial incarceration is pursuant to anything other than a grand jury indictment. See LSA-C.Cr.P. Art. 292. Juvenile relator is entitled to the same constitutional safeguards as an adult. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Louisiana Constitution of 1974, Art. 1, §§ 2 and 3; In re State In Interest of McGinnis, 244 So.2d 336 (La.App. 1971); In re Williams, 221 So.2d 58 (La.App. 1969).

Accordingly, IT IS ORDERED that the Honorable Edward G. Gillen, Judge, Orleans Parish Juvenile Court, or any other Judge of said Court is directed to grant relator, Clifton Antoine Joshua, a preliminary examination (probable cause hearing) not later than twenty-four (24) hours from the date and time of this order.

New Orleans, Louisiana this 5th day of February 1976 at 3:50 o'clock P.M.

(s) ERNEST N. MORIAL, JUDGE

(s) WILLIAM V. REDMANN, JUDGE

(s) PATRICK M. SCHOTT, JUDGE