In re W.M.

In re W.M. (2005-462)

2006 VT 129

[Filed 04-Dec-2006]

                                 ENTRY ORDER

                                 2006 VT 129

                      SUPREME COURT DOCKET NO. 2005-462

                            SEPTEMBER TERM, 2006


  In re W.M.                           }         APPEALED FROM:
                                       }
                                       }         Bennington Family Court
                                       }
                                       }         DOCKET NOS. 111-9-05 BnJv and
                                                             701-7-05 BnCr

                                                 Trial Judge:  Nancy Corsones

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  This interlocutory appeal arises from the family court's
  decision to transfer a juvenile marijuana-possession case back to the
  district court in which charges were originally filed.  Because the family
  court did not have authority to transfer the case prior to a merits
  hearing, we reverse and remand.

       ¶  2.  The facts, which are undisputed, may be briefly summarized. 
  When juvenile W.M., age sixteen, arrived at the district court for her
  arraignment on a domestic assault charge, a sheriff's deputy searched her
  bag and found marijuana.  W.M. was later arraigned in the district court on
  a charge of knowingly possessing less than two ounces of marijuana.  18
  V.S.A. § 4230(a)(1).  W.M. then moved to transfer the possession case to
  juvenile court pursuant to 33 V.S.A. § 5505(c). The State did not oppose
  the motion, and it was granted without a hearing or findings.  See
  V.R.Cr.P. 47(b)(1).

       ¶  3.  At an initial hearing in family court, W.M. asserted that she
  lacked knowledge that the marijuana was in her bag and stated that she
  would deny the charges.  By written order later the same day, the family
  court transferred the case back to the district court.  The order stated:
  "sent back to Dist - Child on adult pro[bation] already - not admitting
  offense - not amenable to juv. pro. - under Kent, should go back . . . ."

       ¶  4.  W.M. timely filed a motion to reconsider the order.  The
  motion was denied.  A second motion for reconsideration was denied, and
  W.M. then moved the family court for permission to take an interlocutory
  appeal to this Court.  That motion was also denied.  We granted appellant's
  subsequent motion for interlocutory appeal, and this appeal followed.

       ¶  5.  W.M. first argues that the family court had no authority to
  transfer the case to the district court, except as provided by 33 V.S.A. §
  5527(c).  The State contends that the family court's transfer was proper in
  light of: (1) the district court's asserted abuse of discretion in
  transferring the case to family court initially, and (2) the family court's
  weighing of the factors announced in Kent v. United States, 383 U.S. 541
  (1966).
   
       ¶  6.   The family court is a court of limited statutory powers and
  has no authority to act outside its mandate.  In re J.S., 153 Vt. 365, 370,
  571 A.2d 658, 661 (1989). There is statutory authority for transfer to
  district court under certain enumerated circumstances.  33 V.S.A. §
  5527(c).  Section 5527(c) allows retransfer only after an adjudication of
  delinquency is made after a merits hearing.  State v. Charbonneau, 154 Vt.
  373, 376, 576 A.2d 1253, 1254-55 (1990).  There was no hearing on the
  merits in the family court in this case, and no adjudication of
  delinquency.  The transfer to district court was therefore outside the
  grant of statutory authority, and the family court had no authority to
  effect the transfer. 

       ¶  7.  In opposition to W.M.'s arguments, the State contends that
  the district court's failure to conduct a hearing and issue findings on the
  initial transfer motion was an abuse of discretion, and that the initial
  transfer to family court was therefore void.  Rule 47(b)(1) of the Vermont
  Rules of Criminal Procedure, however, provides that the district court may
  dispose of motions without written findings or a hearing if there is no
  opposition filed, as there was not in this case.  The State maintains that
  W.M.'s request for a hearing made an evidentiary hearing on the transfer
  motion mandatory, whether or not the State opposed the motion.  This
  interpretation would ignore both the plain language of the rule and the
  language of W.M.'s request; W.M. requested a hearing "only if [the State's
  attorney] objects."  The State waived any right it may have had to a
  hearing or findings by failing to oppose W.M.'s motion to transfer. 

       ¶  8.  The State next argues that the family court's transfer of the
  case to the district court was a proper exercise of its discretionary
  authority under Kent.  But Kent does not justify the extra-statutory
  transfer; Kent simply provides criteria a district court may apply in
  deciding whether to transfer a case to family court in the first instance. 
  Kent, 383 U.S. at 566-67; State v. Buelow, 155 Vt. 537, 544, 587 A.2d 948,
  953 (1990) (district court may apply the Kent factors, but need not do so).

       ¶  9.  Because we agree with W.M. that the transfer to district
  court was improper in light of the rules and statutes governing transfers,
  we need not reach the constitutional issues W.M. raises. In re J.T.S., 169
  Vt. 620, 621, 733 A.2d 86, 88 (1999) (mem.).

       Reversed and remanded to the family court for further proceedings
  consistent with this opinion.


                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice