holding that a criminal information is only evidence that the defendant was charged with a violent crime
How later courts described this case
- holding that a criminal information is only evidence that the defendant was charged with a violent crime
- stating that abuse of discretion is a high threshold that does not simply require error in the trial court’s decision, but establishes that the trial decision was arbitrary and groundless
- supplemental opinion on denial of rehearing
Written by the judges who cited it.
The opinion
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
MARCH 18, 1991
Pierce Stanley & Robinson, by: Robert L. Pierce, for petitioner. Ron Fields, Att’y Gen., C. Kent Jolliff, Asst. Att’t Gen., for respondent. Robert L. Brown, Justice. Petitioner Robert Christian Walker prays for rehearing and urges further consideration of two subsections of the Arkansas Juvenile Code — Act 273 of 1989:
(b)(1) When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, or rape.
(2) The circuit court shall hold a hearing within ninety (90) days of the filing of charges to determine whether to retain jurisdiction of the juvenile in circuit court or to waive jurisdiction and transfer the case to juvenile court.
(d) Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.
Ark. Code Ann. §§ 9-27-318 (b), (d) (Supp. 1989).
Where fourteen and fifteen year olds are involved and where serious charges have been filed, as defined, a hearing must be held within ninety days under subsection (b)(2). This subsection only deals with the time frame of the hearing and the fact that a hearing is required for this age group. The subsection is silent on how to commence the hearing process.
Subsection (d), however, explains that the process is commenced on motion of either party or motion of the court. When counsel for petitioner filed his motion in circuit court to determine jurisdiction and the property of transfer, he did so under the authority of this section. It is conceivable that counsel for a fourteen-year-old client will not file a motion — it is not mandatory under subsection (d) — in which case the court would commence the hearing within ninety days on his own motion.
A moving party has the burden of going forward with proof to support his motion. If his motion is substantive such as moving for the transfer of a case to juvenile court, it is incumbent upon the moving party to present proof in support of that motion.
Irrespective of whether a motion is filed or whether the prosecutor or defense attorney has the burden of proof, the crux of a juvenile transfer case is the finding made by the trial court:
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.
Ark. Code Ann. § 9-27-318 (f) (Supp. 1989). A moving party’s burden of proof is separate and apart from the standard of clear and convincing evidence which the trial court must find. Which party has the burden of proof, in and of itself, does not determine whether the trial court will find that clear and convincing evidence exists. The ultimate issue under the statute is not who has the burden of proof or who must meet that burden of proof. Indeed, the statute is silent on this point. The issue, rather, is whether the trial court finds clear and convincing evidence.
Petitioner called seven witnesses to support the positive factors under Ark. Code Ann. § 9-27-318 (e) (Supp. 1989). The prosecutor’s countervailing proof was the information itself which was evidence that a charge had been filed which accused the petitioner of committing a serious offense and using violence in the process. The trial court found the information sufficient to meet the arduous standard of clear and convincing evidence. We affirmed the trial court’s decision.
This does not mean that the mere filing of an information will qualify as sufficient evidence in every instance. Allegations in the information will vary based on the offense charged as will the positive factors presented at hearing in support of the transfer.
We have held in previous juvenile transfer cases that the standard of review for this court is abuse of discretion. See Asking v. State, 288 Ark. 75 , 702 S.W.2d 20 (1986); Evans v. State, 287 Ark. 136 , 697 S.W.2d 879 (1985). We affirmed that standard in our previous decision in this case. See Walker v. State, 304 Ark. 393 , 797 S.W.2d 442 (1991). We were incorrect, however, in affirming abuse of discretion as the standard for juvenile transfer appeals, because Act 273 of 1989 changed the law and now requires the trial court to support a juvenile transfer decision by a finding of clear and convincing evidence. See Ark. Code Ann. § 9-27-318 (f) (Supp. 1989). The circuit judge made such a finding in this case. Findings of fact by a trial court will not be set aside unless clearly erroneous. ARCP Rule 52(a) (1990). We are not prepared to say that the judge’s finding of clear and convincing evidence was clearly against the preponderance of the evidence.
For the foregoing reasons the petition for rehearing is denied.
Petition denied.
Dudley, Newbern, Corbin, JJ., dissent.