State v. Gilman

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 90-378

                            SEPTEMBER TERM, 1990


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 3, Caledonia Circuit
                                   }
 Darren Gilman                     }
                                   }          DOCKET NO. 480-4-89CaCr


              In the above entitled cause the Clerk will enter:

      The State's motion to dismiss defendant's appeal of the trial court's
 denial of transfer to juvenile court pursuant to V.R.A.P. 5.1 is granted.

      Defendant was five weeks short of age 16 when the events in question
 occurred.  He is now 23 and stands charged with assault and robbery re-
 sulting in physical injury (13 V.S.A. { 608(c)).  Defendant seeks transfer
 to juvenile court, nunc pro tunc, and hence effective dismissal of the
 charges.

      The transfer to juvenile court was discretionary with the trial court,
 since the offense charged was one of those enumerated in 33 V.S.A. {
 635a(a).  In denying the motion, the court weighed defendant's extensive
 juvenile record, his mental status, and the factors set forth in Kent v.
 United States, 383 U.S. 541, 566-67 (1966).  It concluded that, on balance,
 transfer to juvenile court was not appropriate.

      In granting the State's motion to dismiss, we do not mean to imply that
 a motion to transfer to juvenile court should always be denied once an
 accused has passed the age of 21.  In this case, however, defendant has
 failed to show that there was no reasonable basis for the trial court's
 decision.  State v. Willis, 145 Vt. 459, 470, 494 A.2d 108, 114 (1985).
 Accordingly, the State's motion to dismiss is granted.

      It is appropriate to add an additional clarification.  In granting
 defendant's motion for permission to appeal, the trial court cited State v.
 Lafayette, 148 Vt. 288, 532 A.2d 560 (1987).  While we have chosen to review
 the merits "in order to conserve judicial resources," Pfeil v. Rutland
 District Court, 147 Vt. 305, 308, 515 A.2d 1052, 1055 (1986), this case does
 not come within the strict principles we outlined in Lafayette.  Defendant
 is no longer a juvenile, and since he has passed the age of 21, the juvenile
 court would have no jurisdiction over him and could not try him.  See 33
 V.S.A. { 634(b).  Although the purpose of seeking transfer to juvenile court
 is ordinarily to secure the protections afforded by a juvenile proceeding,
 it is clear that defendant's goal is to secure a dismissal of the charges.
 In this respect, his motion is much like a motion to dismiss that has been
 denied by the trial court.  We are unable to say that the issue of transfer
 could not be effectively reviewed on appeal from a final judgment; there-
 fore, defendant's motion falls outside "'the "small class" of decisions
 excepted from the final-judgment rule by Cohen [v. Beneficial Industrial
 Loan Corp., 337 U.S. 541, 546-47 (1949)].'"  Id. at 291, 532 A.2d  at 561
 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

      Appeal dismissed.













                                    BY THE COURT:



                                    Frederic W. Allen, Chief Justice

                                    _______________________________________
                                    Louis P. Peck, Associate Justice


 [ ]  Publish                       Ernest W. Gibson III, Associate Justice

 [ ]  Do Not Publish
                                    John A. Dooley, Associate Justice


                                    James L. Morse, Associate Justice