Long v. State , 202 Kan. 216 ( 1968 )

The opinion of the court was delivered by

O’Connor, J.:

The juvenile court of Butler county entered an order pursuant to K. S. A. 1965 (now 1967) Supp. 38-808 (b) waiving jurisdiction over Darrell Dean Long. An appeal to the district court, where the lower court’s determination was upheld, was followed by the appeal to this court.

On July 1, 1966, the county attorney initiated proceedings in juvenile court by filing a verified petition in which it was alleged that Darrell, then over sixteen but under eighteen years of age, had committed an act of delinquency which if committed by one over eighteen years of age would be a felony. Seventeen days later, based upon the results of a court-ordered psychiatric evaluation, Darrell was committed to St. Francis Hospital in Wichita for a “total inpatient treatment program” under the care and supervision of Dr. C. J. Kurth. While the treatment was being carried out, the court, on its own motion, set the case for further hearing on August 25, 1966. At the hearing, the court considered whether or not its jurisdiction over the young man should be waived, pursuant to the statute (38-808 [b]). Darrell was represented by Warren Ralston, an attorney, as his duly appointed guardian ad litem, and the boy’s parents were represented by James R. Schmitt. The parties stipulated Darrell’s birth date was September 14, 1948; that he was over sixteen years of age at the time of the alleged offense; and that the offense was punishable as a felony if committed by a person over eighteen years of age. The evidence before the court consisted of various psychiatric and psychological reports relating to the boy from the inception of the case to the time of hearing. Thereupon, the court made the three findings required by the statute (38-808 [b]), concluded that Darrell was not a fit and proper person to be dealt with under the Kansas juvenile code, and directed the county attorney to prosecute him under applicable criminal statutes — all of which is reflected in a written journal entry. A verbatim transcript was made of the waiver hearing and became a part of the record in the case.

An appeal to the district court from the waiver order was perfected by Darrell’s father. The appeal was heard April 10, 1967. By agreement of the parties, the matter was submitted on the file, exhibits, and transcript of the proceedings had in juvenile court. Following oral arguments of counsel, the district judge commented to the effect there was “probably some basis” for the juvenile court’s findings, and he was not going to dismiss the criminal action then pending against Darrell. The journal entry of judgment reflects that the judge’s comments were adopted as specific findings of the court, and the appeal was “denied.” From this order of the district court Darrell has appealed.

At this juncture we should point out that a review of the district court proceedings has disclosed an infirmity of such magnitude that the case must be reversed and remanded.

It is apparent from the record the district judge misconceived his true function when considering and determining an appeal from juvenile court relating to the waiver of jurisdiction. Instead of hearing the matter de novo and making his own independent findings and conclusions, he sought to determine whether or not there was evidence to support those of the juvenile court. Unfortunately, the judge did not have the benefit of our recent decision in In re Templeton, 202 Kan. 89, 447 P. 2d 158, where we said, inter alia:

“When an appeal to the district court is taken from a waiver order entered by the juvenile court pursuant to K. S. A. 1967 Supp. 38-808 (b), the district judge must hear the case de novo, subject to the same limitations as to jurisdiction and issues applicable to the juvenile court.” (Syl. f 2.)

An appeal from a waiver order entered by the juvenile court is to be heard and disposed of just as if the waiver proceedings had originated in the district court and no action had been taken by the lower court. The district court, although functioning as an appellate court only in a statutory sense, actually is in the same position as a court of original juvenile jurisdiction. The district court considers anew all evidence that any party may desire to present. Any evidence relevant to the waiver question is admissible, whether introduced in the lower court or not. The parties may, as they did here, agree to submit the matter on the same evidence heard and considered by the juvenile court. The district court is in no way committed by the findings of the juvenile court; nor is the lower court’s conclusion, that jurisdiction be relinquished, binding in any respect. From the evidence introduced in the district court, the judge is to make his own independent findings and determination, all in accordance with what was said in In re Templeton, supra.

The excessive amount of time elapsing between the waiver order entered by the juvenile court on August 25, 1966, and the hearing of the appeal in this court at our November 1968 session requires a brief comment. Darrell, who was seventeen years of age when jurisdiction was first waived, is now twenty years old. The case is being returned to' the district court for reconsideration of the waiver question, which includes the issue of whether or not the young man is amenable to the care, treatment and training program available through the facilities of the juvenile court. While we express no opinion on what the ultimate disposition of the case should be, the best interests of all concerned dictate that proceedings of this nature require expeditious treatment at every stage of the appellate process. Although the statutes are silent regarding preferential settings of juvenile court cases in appellate courts, we believe the very nature of the proceedings, particularly when a waiver order is involved, requires early disposition by both the district court and supreme court. The bench and bar are admonished to give such cases the preferential treatment that justice and public interest may require. (See Supreme Court Rule No. 10 [&], 197 Kan. lxvi. )

The judgment is reversed and the case remanded to the district court with directions to proceed in accordance with the views expressed in this opinion.