mistrial of burglary charge was unnecessary despite failure to certify defendant as adult; failure to certify only rendered conviction voidable and did not deprive court of jurisdiction
How later courts described this case
- mistrial of burglary charge was unnecessary despite failure to certify defendant as adult; failure to certify only rendered conviction voidable and did not deprive court of jurisdiction
Written by the judges who cited it.
The opinion
BRETT, Judge,
specially concurring.
While I concur in this decision, I believe some distinction must be made between the decisions cited of Highsaw v. State, 758 P.2d 336 (Okl.Cr.1988) and A.M.H. v. State, 766 P.2d 351 (OM.Cr.1988). At the outset, 10 O.S.1981, § 1104.2 provides, in part, “Any person sixteen (16) or seventeen years of age who is charged with ... [the crimes enumerated] shall be considered as an adult. Upon the arrest and detention shall be considered as an adult.” (emphasis added) In Highsaw , the appellant had been charged with Rape in the First Degree. However, in A.M.H. appellant was not even a suspect in the murder, when the questioning commenced. He was picked up as a runaway child. At the time of the questioning, it was suspected that he knew more about the murder of his grandmother than he was télling. Because of the situation, as it existed, the provisions of 10 O.S.1981, § 1109, came into play. At that point the child was not a suspect, but was only being questioned, when he was entitled to the presence of his parents, guardian or other legal custodian. Consequently, I can distinguish the two cases on their facts.
Nonetheless, in the instant case the appellant had been arrested and detained on a charge of First Degree Rape and First Degree Burglary and clearly fell under the provisions of 10 O.S.Supp.1981, § 1104.2, and 21 O.S.Supp.1986, § 1114. The distinc *1366 tion lies in the determination as to whether or not the sixteen (16) or seventeen (17) year old has been arrested and detained to answer for a specific offense listed in Section 1104.2. If he has been so arrested, he is to be treated as an adult. In A.M.H., Section 1109 uses the word “charged” which should be construed to mean “arrested and detained” for a specific enumerated offense.
Therefore, I concur.