In Re Juvenile Appeal (84-2), 472 A.2d 795

In Re Juvenile Appeal (84-2)

472 A.2d 795

Conn. App. Ct.

1983

Check Treatment

Hull, J.

This case raises the question whether a judgment denying a motion to transfer a juvenile to the regular criminal docket of the Superior Court under General Statutes § 46b-126 * 1 is a final judgment from which the state can appeal.

*379 The state moved to transfer the juvenile on the ground thаt prior to his sixteenth birthday he committed the crime of sexual assault in the first degree in violation of General Statutes § 53a-70, which is a serious juvenile offense as defined in General Statutes § 46b-120. The motion further alleged thаt the respondent was previously adjudicated a delinquent for the serious juvenile offense of larceny in the second degree in violation of General Statutes § 53a-123 (3).

At the transfer hearing, the court advoсate merely submitted an affidavit to the court in order to establish probable cause under the statute. The respondent objected to this procedure to establish probable cause, claiming he wаs entitled to an evidentiary hearing under the statute. The court, Ottaviano, J., ruled that the statute mandated an evidentiary hearing on all three grounds set forth in § 46b-126. When the court commenced the hearing, the state declined to рroduce any evidence on the issue of probable cause other than *380 the affidavit. The court ruled that without such evidence it could not make a written finding of probable cause and denied the motiоn to transfer. The state then obtained permission to appeal pursuant to General Statutes § 54-96 2 and filed this appeal. 3 The prosecution is in abeyance pending the outcome of this appeal.

The state claims thаt it has a similar right to appeal an ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍order of the court under General Statutes § 46b-142 (b). 4 The state claims that if it is not allowed to appeal the motion to transfer, it is forever barred from presenting the defendant as an adult offender on the same charges by virtue of the principles of double jeopardy and fundamental fairness. The defendant agrees that if the juvenile court acquits him by ultimately ruling that he is not delinquent, double jeopardy principles would bar an appeal by the state. 5

The recent case of State v. Southard, 191 Conn. 506, 467 A.2d 920 (1983), is dispositive of this case. Southard involved the appealability of a pretrial order denying the state’s request for a jury trial in a case in which the defendant had elected to be tried to the court. The court held that the order denying the state’s demand for a jury trial was not a final judgment and dismissed the appeal. “This court’s jurisdiction is limited by stat *381 ute to appeals from final judgments; Generаl Statutes §§ 51-197a, 52-263; and accordingly we have no discretion to enlarge our jurisdiction in abrogation of the final judgment rule. Our recent decisions have repeatedly emphasized that the statutory final judgment rule servеs the important public policy of discouraging the delays and inefficiencies attending piecemeal appeals. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); State v. Seravalli, 189 Conn. 201, 204, 455 A.2d 852 (1983); State v. Spendolini, 189 Conn. 92, 94, 454 A.2d 720 (1983); State v. Powell, 186 Conn. 547, 550-51, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982) . That policy applies with particular force in criminal cases because, as both this court and the Supreme Court of the United States have recognized, ‘undue litigiousness and leaden-footed administration of justice [are] particularly damaging to the conduct of criminаl cases.’ DiBella v. United States, 369 U.S. 121, 124, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962); State v. Curcio, supra; State v. Spendolini, supra; State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938)."State v. Southard, supra, 508-509.

The state itself pointed out in its supplementary brief that “expeditious handling of juvenile cases is policy-wise probably even more important than in regular criminal matters not only because of constitutional safeguards but because the juvenile programs, placements, and treatment are all geared to youths under the age of 16.”

In State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) , the court stated the rule as follows: “ ‘The appealable final judgment in a criminal case is ordinarily the imposition of sentence.’ State v. Seravalli, supra, 205; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). In both criminal and civil cases, however, we ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have determined certain interlocutory orders and *382 rulings of the Superior Court to be final judgments fоr purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceеding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979).” In State v. Southard, supra, the state claimed that the circumstances of the appeаl fit literally within the second prong of the Curdo test. Concerning this claim the court stated: “we need not decide that issue because to permit this appeal now would be inconsistent with the fundamental requirements of thе constitutional prohibition against double jeopardy. The intent of that constitutional prohibition is to shield criminal defendants from repeated prosecution; for that reason, the prohibition cannot in and of itself be utilized by the state as a sword to obtain review of interlocutory orders that would be unavailable to the defendant. The state has been unable to articulate any significant distinction between the еrror claimed on this appeal and any of the myriad evidentiary and procedural rulings which might possibly disadvantage the state during the course of a criminal proceeding, such as orders excluding evidencе, requiring disclosure of information or granting changes of venue.” State v. Southard, supra, 511-12.

Under State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979), the denial of an application for youthful offender eligibility was deemed a final judgment from which an appeal would lie. By analogy, the parties in this case agreed that such an interlocutory appeal would have been available to the defendant had the transfer been granted. We conclude, however, that the Southard rationale would apply whether or not an appeal would be available to the defendant.

*383 Any doubt in this regard was resolved by the very recent case of State v. Longo, 192 Conn. 85, 469 A.2d 1220 (1984), in which the Supreme Court of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Connecticut expressly overruled State v. Bell, supra, to the extent that Bell held that the denial of an application for youthful offender eligibility was a final appealable judgment. Chief Justice Speziale, speaking for the Longo court, confirmed that the defendant’s privacy is irreparаbly harmed by delaying the appeal and going forward with the trial. State v. Longo, supra, 90. The court, however, stated “[o]ur decision that the trial court’s order is not immediately appealable is founded on a different consideration. In order to satisfy the second prong of the Curdo test the defendant must do more than show that the trial court’s decision threatens him with irreparable harm. The defendant must show that that decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) Id., 91. The court then concluded that no defendant has a right to be accorded youthful offender status and, therefore, that the second prong of the Curdo test was not sаtisfied. Id. The decision on the granting of youthful offender status is within the trial court’s discretion.

Likewise, no defendant has a right not to be transferred from the juvenile docket to the regular criminal docket of the Superior Cоurt. Such a transfer depends upon the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court’s discretion under General Statutes § 46b-126 as to whether the transfer is appropriate and upon the court’s necessary findings of probable cause. The holding in State v. Longo, suprа, would appear to eliminate any interlocutory appeal by a juvenile defendant who has been transferred to the regular criminal docket.

In this case, the state’s attempt to appeаl a merely procedural order flouts the well recognized policy against piecemeal litigation, particularly in criminal cases. After all, the order in question was a mere *384 evidential one with which thе state could have complied readily by offering evidence substantially in accord with the affidavit at an evidentiary hearing.

The order denying a transfer under General Statutes § 46b-126 is not a final judgment or an order from whiсh the state can appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

Notes

General Statutes § 46b-126 provides in pertinent part as follows: “(a) The court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfеr from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the com *379 mission of . . . any serious juvenile offense if such child has previously been adjudicated a delinquent for a serious juvenile offense .... If the child is or has been under the custody of the commissioner of children and youth services, the commissioner shall provide any relevant information concerning thе amenability of the child to treatment for use at the transfer hearing. No such transfer shall be valid unless, prior thereto, the court has caused an investigation to be made as provided in section 46b-134 and has made written findings after a hearing, that there is probable cause to believe that (1) the child has committed the act for which he is charged; (2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment and (3) the sophistication, mаturity and previous adjudications of the juvenile are such that the facilities used for regular criminal sessions of the superior court provide a more effective setting for the disposition of the case аnd the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child. Upon the effectuation of the transfer, suсh child shall stand trial and be sentenced, if convicted, as if he were sixteen years of age. If the action is dismissed or nolled or if such child is found innocent of the charge for which he was transferred, the child shall resume his status as a juvenile until he attains the age of sixteen.”

General Statutes § 54-96 states: “Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may bе taken by the state, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with the permission of the presiding judge, to the supreme court or to the appellate session of the superior court, in the same manner and to the same effect as if made by the accused.”

This appeal was originally filed in the Appellate Session of the Superior Court. Public Acts, Spec. Sess., June, 1983, No. 83-29, § 3 (c).

General Statutes § 46b-142 (b) provides in part: “Any party at interest aggrieved by any final judgment or order of the court may appeal to the supreme court in accordance with the provisions of chapter 902.”

Since neither party briefed or argued the question as to whether or not the state, after denial of a transfer based only on an affidavit, could seek a transfer at an evidentiary transfer hearing, we do not decide this question. See Sturman v. Socha, 191 Conn. 1, 4 n.3, 463 A.2d 527 (1983).