NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA IN THE INTEREST OF OF W.P. * NO CA-1442 COURT OF APPEAL FOURTH CIRCUIT

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1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA IN THE INTEREST OF OF W.P. * NO CA-1442 * * * COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * * APPEAL FROM JUVENILE COURT ORLEANS PARISH NO DQ-F, SECTION F Honorable Mark Doherty, Judge * * * * * * Judge Dennis R. Bagneris, Sr. * * * * * * (Court composed of Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome) Leon A. Cannizzaro, Jr. District Attorney Matthew C. Kirkham Assistant District Attorney 619 S. White St. New Orleans, LA COUNSEL FOR APPELLANT, THE STATE OF LOUISIANA Tenee Felix JUVENILE REGIONAL SERVICES 1820 St. Charles Avenue Suite 205 New Orleans, LA COUNSEL FOR DEFENDANT/APPELLEE, W. P. MARCH 07, 2012 AFFIRMED

2 In this appeal, the State of Louisiana (State) seeks review of the judgment of the Juvenile Court for the Parish of Orleans dismissing the petition for failure to timely prosecute. Specifically, the State argues that the juvenile court abused its discretion in dismissing the petition as the defense acquiesced to the delay in the prosecution. For the following reasons, we affirm. FACTS On July 8, 2011, the State filed a petition which charged W.P. with violating La. R.S. 14:95.8, illegal possession of a handgun by a juvenile. On July 8, 2011, the juvenile court conducted a probable cause hearing. The juvenile court found probable cause. After the juvenile court found probable cause, W.P. entered a denial to the offense charged in the petition. The juvenile court determined that bond be set at $20, W.P. remained in custody. On July 21, 2011, the parties appeared before the juvenile court, and W.P. again entered a denial to the offense charged in the petition. A trial date of August 15, 2011, was selected. On August 10, 2011, counsel for W.P. filed a motion to dismiss. The motion contended that the State failed to prosecute W.P. in accordance with La. 1

3 Ch.C. art After a hearing, the juvenile court granted the motion and dismissed the petition. From that judgment, the State filed a motion for appeal. DISCUSSION The State s sole assignment of error is that the juvenile court erred in granting the motion to dismiss as the defense acquiesced in the setting of the trial date. In discussing time limits for the commencement of an adjudication hearing, the Children s Code provides: A. If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition. B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition. C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition. D. For good cause, the court may extend such period. La. Ch.C. art W.P. answered the petition on July 8, W.P. remained in custody. Thus, the adjudication hearing should have commenced within thirty days, or by August 8, In support of its argument that the juvenile court erred in granting the motion to dismiss, the State cited State v. Lathers, (La. 11/1/00), 772 So.2d 659, and State v. Green, (La. 2/1/02), 808 So.2d 318. Both of these cases analyze La. Cr.C. art. 701, which provides that failure to commence trial within the time periods provided shall result in the release of the defendant without 2

4 bail or in the discharge of the bail obligation, if after contradictory hearing with the district attorney, just cause for the delay is not shown. La. Cr.C. art In Lathers, the Supreme Court vacated the ruling of the appellate court releasing the defendant from custody and relieving him of his bail obligation. The Court stated that defense counsel acquiesced in selecting a trial date beyond the statutory time delays for a speedy trial provided in La. Cr.Cr. art Lathers, , p.1, 772 So.2d at 659. In Green, the Supreme Court noted that Lathers did not provide a specific holding. The Court went on to hold that there is a day for day reduction of the statutory period for a speedy trial when the defense acquiesces to time delays. Green, , p.5, 808 So.2d at 321. However, juvenile proceedings are to be governed by the provisions of the Children s Code. La. Ch.C. art It is only when procedures are not provided for in the Children s Code that we turn to the Code of Criminal Procedure. La. Ch.C. art In this case, the Children s Code specifies a procedure, and provides a mandatory outcome for a violation of that procedure in La. Ch.C. art Several cases involving juveniles, decided after Lathers and Green, provide guidance and are discussed below. Thus, we need not look to the Code of Criminal Procedure, and cases such as Lathers and Green, to reach a disposition in this case. The State argued that delays by the defense are highly relevant to this case. The State noted that the defense acquiesced in the selection of the trial date, and received a longer period of time to file motions. Thus, the State concluded that the defense cannot now claim that the reason for the delay was solely based upon the action of the State or the juvenile court. 3

5 We note that the time period provided in La. Ch.C. art. 877 is mandatory. State in the Interest of R.D.C., Jr., , p.5 (La. 2/28/94), 632 So.2d 745, 749; State in the Interest of S.D., , p.3 (La. App. 4 Cir. 12/9/09), 28 So.3d 1160, It is incumbent on the state to make a showing of good cause and obtain an extension before the period has run. Id. Good cause is not defined in the Children s Code. The Supreme Court provided that in considering what constitutes good cause, the juvenile court should be mindful of those situations where defense motions or causes beyond the control of the state may impinge on its ability to prepare for a hearing. State in the Interest of R.D.C., , p.6, 632 So.2d at 749. In this instance, the State presented no proof that defense motions or causes beyond the control of the State impinged on its ability to prepare for a hearing. The record simply does not demonstrate that good cause existed for setting an untimely adjudication hearing date. Indeed, the juvenile court judge stated that since they were beyond the deadline imposed under La. Ch.C. art. 877, he believed he had to grant the motion to dismiss. The juvenile court judge remained silent on the issue of good cause. Good cause is to be determined prior to the expiration of the time period imposed by La. Ch.C. art A similar fact situation was presented in State in the Interest of L.H., unpub., (La. App. 4 Cir. 5/11/10), a case involving a juvenile that was decided after Lathers and Green. Therein, the juvenile court held a probable cause hearing on December 28, After a finding of probable cause, L.H. answered the petition by denying the charges in the petition. On January 5, 2010, L.H. again answered the petition, and a trial date of February 4, 2010 was selected. As L.H. remained in custody, counsel for L.H. filed a motion to quash for failure to timely 4

6 prosecute within thirty days. The juvenile court found good cause existed as L.H. s former counsel failed to notify his subsequent counsel that a denial had been entered on December 28, The juvenile court found that the failure to notify the subsequent counsel led the State to be unaware that a denial had been entered. This Court granted the writ and vacated the juvenile court s denial of the motion to quash for failure to timely prosecute pursuant to La. Ch.C. art This Court noted that L.H. answered the petition on December 28, 2009, and that no motion to continue was ever filed by the State. This Court stated that defense counsel s failure to confer with the State is not sufficient to constitute good cause when the record clearly shows the date on which the petition was answered. This Court noted that the juvenile court and the State were equally bound to be familiar with the record. In this case, W.P. entered a denial on July 8, 2011, on the record, and in the presence of the State. An adjudication proceeding did not commence within thirty days, and the State failed to file a motion to continue prior to the expiration of the thirty days. In State in the interest of R.D.C., the Supreme Court declared that it is incumbent upon the State to make a good cause showing prior to the expiration of the time period for the commencement of an adjudication proceeding. State in the interest of R.D.C., , p.5, 632 So.2d at 749. It is not the responsibility of defense counsel to inform the State of the date the juvenile appeared to answer the petition, when that evidence is clearly in the record. It is the duty of both the State and the juvenile court to be familiar with the record. In this case, the record boldly notes that W.P. denied the charges in the petition on July 8, 2011, that W.P. remained in custody, and that no adjudication hearing commenced within thirty days. 5

7 The State cited no statute or case involving a juvenile in support of its argument that the defense s acquiescence in the selection of a trial date amounted to a waiver of its right to object to the failure to timely commence an adjudication hearing pursuant to La. Ch.C. art In State in the Interest of J.B., , p.1 (La. App. 4 Cir. 12/10/03), 863 So.2d 669, 670, another juvenile case decided after Lathers and Green, defense counsel acquiesced in the selection of an adjudication date and waived all delays for the setting of the adjudication date. Later, counsel for a co-defendant enrolled and filed a motion to dismiss for failure to timely prosecute. The State argued that good caused existed and that counsel waived the delays in the setting of the adjudication. This Court found that the closing of the court on the date of the pre-trial conference due to Hurricane Isidore did not constitute good cause as it did not affect the mandatory adjudication hearing. Further, the Court determined that counsel s waiver of delays in the setting of the hearing should not be considered a waiver of the right to a timely adjudication. Id., p.3, 863 So.2d at 671. The Court noted: La. Ch.Code art. 877 does not say that the adjudication hearing can be set outside the mandatory period if good cause is demonstrated. Instead, it specifically states that the court may extend the deadline for the adjudication if good cause is demonstrated. There is no allegation or proof that the State or the juvenile asked the court to extend the deadline for the holding of the adjudicatory hearing. Moreover, the court failed to state the basis for finding that there was good cause for setting the adjudication hearing outside the mandatory time periods. Nor does the record suggest a basis for finding that good cause for setting an untimely adjudication hearing date existed. Id., p. 4, 863 So.2d at 671. Significantly, in State in the interest of K.E.C., , p.2 (La. App. 3 Cir. 12/8/10), 54 So.3d 735, 737, yet another juvenile case decided after Lathers and Green, the court found a failure to commence adjudication in accordance with 6

8 La. Ch.C. art. 877 to be an error patent. Therein, an adjudication hearing was set beyond the time delays provided in La. Ch.C. art After the hearing, the court adjudicated K.E.C. delinquent, and K.E.C. appealed. In conducting an error patent review, the appellate court noted that the State failed to timely commence the adjudication hearing, and that the State failed to seek an extension prior to the expiration of the time period. The appellate court reversed the adjudication and dismissed the petition against K.E.C. In this case, neither the State nor counsel for W.P. requested an extension of the mandatory deadline imposed in La. Ch.C. art. 877, prior to the expiration of the time period provided in La. Ch.C. art Absent an explicit waiver of the right to a timely adjudication, we decline to find that W.P. waived the right to the commencement of an adjudication proceeding within the time limits imposed by La. Ch.C. art Thus, we find no merit in the State s assignment of error. Accordingly, we hereby affirm the judgment of the juvenile court, which granted the motion to dismiss. AFFIRMED 7