In re the Welfare of P.L.M.

OPINION

NIERENGARTEN, Judge.

This appeal is from an order adjudicating appellant delinquent. The trial court found by written order the petition charging appellant with assault in the fifth degree proven beyond a reasonable doubt. We affirm.

FACTS

Appellant P.L.M., a fourteen year old juvenile, was charged in Hennepin County Juvenile Court with assault in the fifth degree on a complaint he hit another juvenile, C.A.D., at school. P.L.M. denied the petition and a trial without a jury was held.

Considerable dispute arose as to how the incident occurred.

At the close of testimony and after final arguments, the following discussion took place between the court and counsel for either side.

THE COURT: Well sometimes courts need more information. It is kind of hard for me to fathom exactly what happened. If [C.A.D.] was hit while he was on the ground or if he was standing up, or if he was on a landing. I think he got hit, but I don’t think the State has proven to me beyond a reasonable doubt that [P.L.M.] did it deliberately.

I am not sure where it happened. I am not sure if he was on his back, if he was standing up.

I’m going to find the Petition not proven beyond a reasonable doubt.

MS. GRAHAM: Your Honor, he testified he was standing up struggling with the drumsticks.

THE COURT: He didn’t say if he was standing up. Let me take a look back here a second.

MS. GRAHAM: I asked him where [P.L.M.] was standing in relation to him and where the other person was standing in relation to him.

THE COURT: Let me take a look at my notes a little more and I will come up with a decision. I have some trouble trying to fathom where it happened and diagramming and that.

I will notify you both.

Let me take a look at this.

MS. KELLER: Thank you, Your Hon- or.

On March 6, 1985, the court issued a written order finding the petition proven beyond a reasonable doubt. Appellant appeals claiming the written order was barred by double jeopardy because a final decision was already rendered in the court’s previous oral finding.

ISSUES

1. Was the trial court’s reversal in a written order of its previous oral finding that the petition was not proven barred by double jeopardy?

2. Did the prosecutor commit misconduct by arguing the case after an alleged oral finding was made?

ANALYSIS

1, 2. P.L.M. argues the trial court’s reversal of its oral finding that the petition was not proven constituted double jeopardy and that the prosecutor committed misconduct by continuing to argue the case after the court made its initial determination. Neither argument is persuasive.

To isolate on appeal the recorded discussion between the court and counsel after trial ignores its context and tone. It is apparent throughout the quoted discussion that the court was still in the process of sorting out the facts before rendering its final decision. While “musing aloud” when contemplating a decision is not always recommended, it is nonetheless clear from the tone of the discussion that the court needed additional time to make its finding on a record that had already been completed. The additional comments of Ms. Graham didn’t change the substance of the record.

Appellant cites other jurisdictions all of which appear to require an intentional initial court decision before double jeopardy serves to bar a second decision made on the same matter. As stated in Pugh v. State, 271 Md. 701, 706, 319 A.2d 542, 545 (1974):

It is therefore settled that once the trier of fact in a criminal case, whether it be the jury or the judge, intentionally renders a verdict of “not guilty,” the verdict is final and the defendant cannot later be retried on or found guilty of the same charge.

(emphasis supplied).

Here there is no indication that the court intentionally rendered a verdict of “not guilty.” His statement “I’m going to find the Petition not proven beyond a reasonable doubt” (emphasis added) had not been finalized. It was merely in the process of clarification subject to its final decision made several weeks later by written order.

DECISION

The trial court’s written order finding the petition proven’ beyond a reasonable doubt is not barred by double jeopardy.

Affirmed.

LESLIE, J., dissents.