Ex Parte State
WRIT DENIED.
HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, JOHNSTONE, and ENGLAND, JJ., concur.
BROWN, J., dissents.
BROWN, Justice (dissenting).
I respectfully dissent from the order denying the State‘s petition for certiorari review.
The Court of Criminal Appeals’ decision was based on Anderson v. State, 729 So.2d 900 (Ala.Crim.App.1998), and Young v. State, 730 So.2d 1251 (Ala.Crim.App.1998). That court wrote:
“We held in Anderson that there was `nothing in the language of
[Ala.Code 1975,] § 12-15-34.1 [the statute that enumerates those charges for which juveniles shall be “charged, arrested, and tried as an adult.“], to support the state‘s contention that the rights granted a child pursuant to Rule 11(B) are extinguished by the fact that a child alleged to have committed an offense enumerated in that statute “shall be charged, arrested, and tried аs an adult” and automatically subjected to the jurisdiction of the adult system.’ [729 So.2d at 903.] The language of§ 12-15-34.1 does not divest the child of the protections afforded byRule 11(B) , and it does not change the statutory definition of `child.’ Because§ 12-15-34.1 does not state that a juvenile loses the right to be treated as a juvenile when an offense is alleged to have been committed, but only when he or she is charged with one of the offenses enumerated in§ 12-15-34.1 , to hold otherwise, as we noted in Young, would place upon policе investigators at an interrogation the burden of deciding whether a child should be afforded the rights guaranteed byRule 11(B) before any formal decisiоn has been made as to whether the child will be arrested or charged with an offense for which he or she will be tried as an adult. We rely on our rationale in Anderson and Young in holding that Wimberly‘s custodial statement was improperly admitted in evidence because Wimberly was not informed that he had a right to communicate with his parent or guardian, as provided inRule 11(B), Ala.R.Juv.P. ”
When I served on the Court of Criminal Appeals, I dissented from the majority‘s holding in Anderson, see 729 So.2d at 906 (Brown, J., dissenting); Young, 730 So.2d at 1258 (Brown, J., dissenting); and Little v. State, 739 So.2d 539, at 543 (Alа.Crim. App.1998) (Brown, J., dissenting). I dissented because, after examining
“`It is a “well established principle of statutory interpretation thаt the law favors rational and sensible construction.“‘” King v. State, 674 So.2d 1381, 1383 (Ala. Crim.App.1995) (quoting 2A Norman J. Singer, Sutherland Statutory Construction § 45.12 (5th ed.1992)). Moreover, “`[t]he courts will not ascribe to the legislature an intent to creаte an absurd or harsh consequence, and so an interpretation avoiding absurdity is always to be preferred.‘” Daugherty v. Town of Silverhill, 672 So.2d 813, 816 (Ala.Crim.App.1995) (quoting 1A C. Sands, Sutherland Statutory Construction § 23.06 (4th ed.1972) (emphasis omitted)).
Section 12-15-34.1 provides, in pertinent part:
“(a) Notwithstanding any other prоvision of law, any person who has attained the age of 16 years at the time of the conduct charged and who is charged with the commission of any act or conduct, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of
juvenile court [sic] but shall be charged, arrested, and tried as an adult: “(1) A capital offense.
“(2) A Class A felony.
“(3) A felony which has as an element thereof the use of a deadly weapon.
“(4) A felony which has as an element thereof the causing of death or serious physical injury.”
(Emphasis supplied.)
The language of this statute could not be clearer: anyone over the agе of 16 who commits any of the listed offenses is to be treated as an adult; that person shall be removed from the jurisdiction of the juvenile court. The language of the statute plainly excludes juveniles 16 and older from the definition of a “child,” by stating that they are to be treated аs adults. In my opinion, the Court of Criminal Appeals’ holding—that the fact that the statute provides that the juvenile is to be treated as an adult does not mean that he was divested of the protections afforded by
In its decision in this case, the Court of Criminal Appeals relied on this Court‘s decisions in Ex parte Jackson, 564 So.2d 891 (Ala.1990), and Ex parte Whisenant, 466 So.2d 1006 (Ala.1985). Its reliance was misplaced. Both of those cаses were decided before the Legislature enacted
By contrast,
There may be strong policy arguments in favor of requiring that juveniles removed from thе jurisdiction of the juvenile court pursuant to
“In thе government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, оr either of them; to the end that it may be a government of laws and not of men.”
“Courts, above all others, are charged with a very sacrеd duty not to encroach upon the domain of other departments of government under our constitutional system of government.” Hendrix v. Creel, 292 Ala. 541, 545, 297 So.2d 364 (1974). As this Court stated in Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala.1992) (quoting Finch v. State, 271 Ala. 499, 503, 124 So.2d 825 (1960)):
“`No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary. Accordingly, we hаve held that courts cannot and will not interfere
with the discretion vested in other units or branches of government.‘”
Although in its opinion in this case thе Court of Criminal Appeals purported merely to interpret
Accordingly, I would grant the State‘s petitiоn and reverse the judgment of the Court of Criminal Appeals, a judgment based on an erroneous holding that the police officer‘s failurе to advise Wimberly of his rights under