
    STATE of Louisiana v. M.C.
    No. 2010-KA-1107.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellant.
    L. Scott Sherman, James Harper, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, and Judge PAUL A. BONIN.
   PATRICIA RIVET MURRAY, Judge.

_JjThis criminal appeal presents an issue of statutory construction: whether La. Ch.C. art. 305(E) precluded the State from obtaining an indictment charging M.C., a sixteen-year old juvenile, with armed robbery, an enumerated offense under La. Ch.C. art. 305(B), after the juvenile court ordered a competency hearing and found the juvenile was not competent to proceed. Answering the question in the affirmative, we affirm the district court’s decision quashing the indictment for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

M.C. is alleged to have committed armed robbery with a handgun. At the time of the offense, M.C. was under the age of majority. Due to M.C.’s age, the case initially was allocated to juvenile court. Before the State took any formal action in either juvenile or criminal court, the juvenile court ordered a competency hearing. On May 26, 2009, that court, based on court-ordered evaluations, rendered judgment finding M.C. was not competent to stand trial. The judgment reflects that the juvenile court remanded M.C. and placed him in the custody of the | gDepartment of Health and Hospitals for purposes of placement and competency restoration. The judgment further reflects that the juvenile court set a restoration status hearing for June 25, 2009; there is no indication in this record if that hearing was held.

On October 22, 2009, almost five months after M.C. was determined not competent to proceed, the State obtained a grand jury indictment of M.C. for armed robbery, a violation of La. R.S. 14:64, exercising its discretion under La. Ch.C. art 305(B) to commence this case in district court. M.C. was arraigned and pleaded not guilty. On January 14, 2010, the district court denied M.C.’s motion to suppress the identification. On April 8, 2010, the district court granted M.C.’s motion to quash the indictment. On the same date, the State filed a notice of appeal. On April 13, 2010, the State filed a motion for stay of the district court’s ruling. In response, the district court ordered M.C. to remain in Orleans Parish Prison, to which, pursuant to La. Ch. C. art. 305(D), he had been transferred once he was indicted. M.C. applied for supervisory review of this order. On May 10, 2010, this court denied the writ application. State v. M.C., 10-0669 (La.App. 4 Cir. 5/10/10)(unpub).

DISCUSSION

A trial court’s judgment granting a motion to quash may be reversed only upon a finding of abuse of discretion. State v. Love, 00-3347, pp. 9-10 (La.5/23/03), 847 So.2d 1198, 1206; State v. Kitchens, 09-0834, 09-0835, p. 4 (La.App. 4 Cir. 3/24/10), 35 So.3d 404, 406-07. One of the grounds for granting a motion to quash is the district court’s lack of jurisdiction of the offense charged. La.C.Cr.P. art. 532(8). The district court found it lacked jurisdiction based on the provision of La. Ch.C. art. 305(E), which precluded any further steps in the |sprosecution of M.C. in a court exercising criminal jurisdiction. The district court, therefore, quashed the indictment of M.C. It is from this ruling that the State appeals.

The question presented is the interpretation of La. Ch.C. art. 305(E); under this article does the juvenile court retain jurisdiction of a juvenile such as M.C., who has been determined to be not competent to proceed? The State argues that it does not, relying on the discretion given to it by the Legislature with regard to certain crimes alleged to have been committed by a juvenile such as M.C. To resolve this question it is necessary to place this jurisdictional dispute in context by reviewing the scope of the juvenile court’s jurisdiction and the pertinent statutory provisions.

As a general rule, the Louisiana Constitution provides that juveniles are entitled to the benefit of special juvenile procedures. La. Const. Art. V, § 19 (providing that special juvenile procedures apply to the “determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday.”) The constitution, however, authorizes the Legislature, by two-thirds vote, to enact provisions for waiver of juvenile jurisdiction. Id.

Exercising its constitutional authority, the Legislature has created three types of waiver. These are codified in La. Ch.C. art. 303, which provides that a court exercising juvenile jurisdiction “shall have exclusive original jurisdiction” over delinquency proceedings pursuant to La. Ch.C. arts. 801, et seq., except when a child either (1) is subject to the jurisdiction of the criminal courts for prosecution and liability as an adult pursuant to La. Ch.C. art. 305, et seq. or (2) has been transferred by the juvenile court for criminal prosecution and liability as an adult | ^pursuant to La. Ch.C. art. 857 et seq. See State v. Hamilton, 96-107, pp. 2-4 (La.7/2/96), 676 So.2d 1081, 1082-83.

This case involves one of those types of waiver, specifically “prosecutorial waiver” of juvenile court jurisdiction as provided in La. Ch.C. art. 305(B). Article 305(B) of the Children’s Code provides that the juvenile court has exclusive jurisdiction over certain enumerated criminal offenses committed by a child fifteen years of age or older, until a divesting event occurs. Hamilton, 96-0107 at pp. 2-3, 676 So.2d at 1082 (citing State v. Lacour, 398 So.2d 1129, 1132 (La.1981)).

In the case at bar the district attorney obtained an indictment of M.C. in district court, exercising the discretion granted to it by La. Ch.C. art. 305(B). However, before the indictment was obtained, the juvenile court ordered a competency hearing and determined that M.C. was not competent to proceed. The district court, relying on La. Ch.C. art. 305(E), held that this exercise of discretion was precluded until M.C.’s competency was restored, and quashed the indictment. The issue on appeal, therefore, is the proper statutory construction of La. Ch.C. art. 305(E).

Statutory interpretation starts with the language of the statute. State v. Benoit, 01-2712, p. 3 (La.5/14/02), 817 So.2d 11, 13. Children’s Code Article 305(E), which was added in 2008, provides:

E. (1) If a competency or sanity examination is ordered, except for the filing of a delinquency petition, no further steps to prosecute the child in a court exercising criminal jurisdiction shall occur until:
|fi(a) Counsel is appointed for the child and notified in accordance with Article 809; and
(b) The court determines mental capacity to proceed in accordance with Chapter 7 of Title VIII.
(2) When a child has been charged with one or more of the crimes listed in Article 857, has reached twenty-one years of age and is incompetent, the court on its own motion or on the motion of the district attorney may conduct a hearing to consider whether to transfer the child for further proceedings to the appropriate court exercising criminal jurisdiction.

La. Ch. C. art. 305(E) (emphasis supplied). It is the interpretation of provision E(l) that is at issue in this appeal.

In resolving a question of statutory interpretation, the following basic rules of statutory construction set forth in the Louisiana Civil Code provide guidance:

• Article 9: “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”
• Article 10: “When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.”
• Article 11: “The words of a law must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the law involves a technical matter.”
• Article 12: “When the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.”
• Article 13: “Laws on the same subject matter must be interpreted in reference to each other.”

The First Circuit Court of Appeal, under circumstances similar to those presented in this case, has construed Article 305(E) as providing for a temporary pause of the transfer of a juvenile from juvenile court to district court until the juvenile court has made a competency determination. State in the Interest of T.C., 609-1852 (La.App. 1 Cir. 2/12/10), 35 So.3d 1088, writ denied, 10-0575 (La.3/31/10), 31 So.3d 352.

Before the State indicted T.C. (who had been arrested for second degree murder and armed robbery), defense counsel filed a motion in juvenile court to have T.C. examined to determine his capacity to proceed. The juvenile court appointed a competency commission, but before the hearing was held T.C. was indicted for armed robbery and second degree murder. On the State’s motion, the district court transferred T.C. to the district court pursuant to La. Ch.C. art. 305(A)(2). The State subsequently moved to dismiss the pending competency proceedings in juvenile court. Finding that an indictment obtained in violation of La. Ch.C. art. 305(E) does not divest the juvenile court of jurisdiction until the juvenile court’s determination of mental competency to proceed, the juvenile court denied the State’s motion. From this ruling, the State filed a writ application, which the First Circuit granted.

Addressing the issue of statutory construction, the First Circuit noted that, although there was a lack of jurisprudence interpreting La. Ch.C. art. 305(E), the commentators have interpreted the provision as requiring a determination of the child’s mental capacity before proceeding to prosecute him' in a court exercising criminal jurisdiction. T.C., 09-1852, p. 7, 35 So.3d at 1091 (citing Lucy S. McGough & Kerry Triche, Louisiana Children's Code Handbook 28 (Authors’ Notes to La. Ch.C. art. 305) (2008-2009 ed.)). Continuing, the First Circuit reasoned that the juvenile court’s construction of La. Ch.C. art. 305(E) is supported by the language of the article, which provides an exception only for the filing of a delinquency petition. The Court concluded that:

17[I]n those cases where the competency of the child is raised in juvenile court before the state secures an indictment, the state has no authority to get an indictment until the child has been found competent. Article 305(E) of the Children’s Code is an exception to Sections (A) and (B) of article 305. Subsection (E) ensures that the juvenile court retains jurisdiction while the mental capacity of the juvenile is under consideration. If the child is found competent in the juvenile court, trial in the criminal court is not prevented. Only those children who are found incompetent would be shielded from criminal prosecution. Article 305(E) temporarily prevents a transfer from the juvenile court to the criminal court until a determination of competency is made.

T.C., 09-1852, p. 8, 35 So.3d at 1092. For these reasons, the First Circuit recalled and denied the State’s writ application.

The dissent in T.C., disagreeing with the majority’s reasoning, opined that “[ojnce the indictment against T.C. was filed, the juvenile court was divested of jurisdiction and was no longer ‘a court exercising criminal jurisdiction.’ ” T.C., 09-1852 at p. 7, 35 So.3d at 1095 (Carter, C.J., dissenting). The dissent further noted that, although the district attorney had the discretion to charge T.C. with armed robbery in district court pursuant to La. Ch.C. art. 305(B), the “[pjrosecution of the charge of second degree murder must take place in district court [pursuant to La. Ch.C. art. 305(A)].” Id. (emphasis in original). Citing La. Const. Art. V, § 26(B) and La.C.Cr. P. Art. 61, the dissent opined that:

To interpret Article 305 E as suggested by defense counsel is to place charge of a criminal prosecution with defense counsel rather than with the district attorney. Defense counsel could circumvent, or manipulate, the automatic jurisdictional provision of Article 305 A and the discretionary jurisdictional provision of Article 305 B by obtaining an order appointing a sanity commission prior to the district attorney effecting a legal action against a juvenile accused of a serious crime.

8T.C., 09-1852 at p. 7, 35 So.3d at 1095, n. 4 (quoting La. C.Cr.P. art. 61)(Carter, C.J., dissenting). Because “[t]he district attorney has the entire charge and control of every criminal prosecution instituted or pending in his district and determines “whom, when, and how he shall prosecute.” Id. (quoting La.C.Cr.P. art. 61)(Carter, C.J., dissenting), the dissent would have granted the State’s writ, found that jurisdiction vested exclusively in the district court once an indictment had been obtained, and found that the district court, therefore, was the proper forum for determining the juvenile’s competency.

Given this background, we turn to the determination of which court has jurisdiction to determine the competency of a juvenile subject to a La. Ch.C. art. 305 waiver when the juvenile court has ordered a competency examination and the juvenile has been found not competent to proceed before the State files an indictment or bill of information.

The State, as it did in T.C., supra, argues that the district court’s decision divests the district attorney of the discretion granted to it by La. Ch.C. art. 305(B), which, it contends, was not the intent of the Legislature. It contends that the dissent in T.C. sets out the proper construction of the article.

M.C. counters that the First Circuit in T.C. and the district court herein correctly construed La. Ch.C. art. 305(E)(1). First, he contends that the article is clear and unambiguous. He points out, in addition, that, despite the State’s argument that the juvenile shall receive a sanity hearing in accordance with the provisions of the Children’s Code, the determination of capacity to proceed is governed by the Code of Criminal Procedure. La. Cr.C. art. 644.1(B). Such a juvenile would not have the benefit of the special restoration proceedings provided |flfor by the Children’s Code. La. Ch.C. art. 837.1. M.C. contends that the district court’s quashing of the indictment should be affirmed. We agree.

The language of La. Ch.C. art. 305(E) is clear. The article provides that no further steps to prosecute the juvenile in a court exercising criminal jurisdiction shall occur once a competency or sanity examination is ordered until counsel is appointed for the child and notified in accordance with La. Ch.C. art. 809, and the court determines he has the mental capacity to proceed in accordance with other provisions of the Children’s Code. La. Ch.C. art. 305(E)(1). The only exception is the filing of a delinquency petition, which is the vehicle by which a delinquency proceeding is commenced. La. Ch.C. art. 842.

As it argued in T.C., supra, the State would equate a delinquency petition with the institution of prosecution in district court. As did the First Circuit in T.C., we reject that argument. La.C.Cr. P. art. 934(7) defines the institution of prosecution to mean “the finding of an indictment, or the filing of an information, or affidavit, which is designed to serve as the basis of a trial.” The Legislature’s selection of the juvenile court terminology “delinquency petition” supports our interpretation of La. Ch.C. art. 305(E) as requiring the juvenile court retain jurisdiction until the juvenile is found competent to proceed.

In argument before this court the State distinguished this case from T.C. as the competency proceeding in juvenile court in T.C. was pending; the State obtained an indictment before the juvenile court held a competency hearing. The State suggests that the fact that M.C. had already been found not to be competent before the indictment should call into question the district court’s reliance on T.C. in interpreting La. Ch.C. art. 305(E). This argument ignores the plain language of the article; no steps to prosecute the child in a court exercising criminal jurisdiction |inshall occur until it is determined that the child has the mental capacity to proceed. We find it even more compelling for the juvenile court to retain jurisdiction when a child, such as M.C., actually has been found to be incompetent. The harm resulting from adopting the State’s position is that it allows the waiver (transfer) of M.C., a juvenile who has been determined not to be competent, to an adult facility. Indeed, M.C. has been in Orleans Parish Prison since October of 2009 when he was indicted and his case transferred to district court.

For all these reasons, we construe La. Ch.C. art. 305(E) as intended to halt the waiver of juvenile jurisdiction when the juvenile court has found reasonable cause to doubt the juvenile’s competency, ordered a competency examination, and found the juvenile not to be competent. Our construction of La. Ch.C. art. 305(E) is buttressed not only by the First Circuit’s decision in T.C., but also by a failed legislative attempt in 2010 to repeal the special competency protection waiver provision contained in La. Ch.C. art. 305(E). Because the State’s indictment of M.C. was obtained in violation of La. Ch.C. art. 305(E), we find the district court did not abuse its discretion in granting M.C.’s motion to quash. We thus find that the juvenile court continues to retain jurisdiction over M.C.’s competency proceeding.

|nIn an earlier proceeding before this court in this matter, the district court expressed in its per curiam that it had ordered M.C.’s release. The district court further stated that it reluctantly granted the relief of discharge of M.C. from custody because the juvenile court apparently believed that it had been irreversibly divested of jurisdiction over M.C. The district court then stayed its own order of release pending this appeal. This court denied M.C.’s writ application seeking relief from the district court’s stay order. State v. M.C., 10-0669 (La.App. 4 Cir. 5/10/10)(unpub). In addition to affirming the district court’s motion to quash, we make clear that we are affirming the district court’s order of M.C.’s release from the custody of Orleans Parish Prison and the dissolution of the district court’s stay.

Because this court has supervisory jurisdiction over the Juvenile Court for the Parish of Orleans, we direct an instanter order under our plenary authority to the judges of that court to immediately exer-rise their jurisdiction over M.C. See La. Const. Art. V, § 10(A); see also Herlitz Constr. Co. v. Hotel Investors of New Iberia, Inc., 896 So.2d 878 (La.1981).

DECREE

For the foregoing reasons, the judgment of the trial court granting M.C.’s motion to quash is affirmed.

AFFIRMED.

BONIN, J.,

Concurs with Additional Reasons.

|,I respectfully concur in the affirmation of the trial court’s ruling which sustained the motion to quash. I explain my views in the following parts.

I

This case presents an important jurisdictional issue, which is resolved by considerations of the federal and state constitutions. This case also presents an issue of general statutory construction which is reviewed de novo. See Burnette v. Stalder, 00-2167, p. 5 (La.6/29/01), 789 So.2d 573, 577; see also State v. Ramos, 07-1448, p. 4 (La.App. 1 Cir. 7/28/08), 993 So.2d 281, 284. Although a trial court’s ruling on a motion to quash will generally not be reversed absent an abuse of discretion, see State v. Batiste, 05-1571, p. 9 (La.10/17/06), 939 So.2d 1245, 1251, a trial court’s legal findings are subject to a de novo standard of review, see State v. Smith, 99-0606, p. 3 (La.7/6/00), 766 So.2d 501, 504. Here, the trial court’s ruling on the motion to quash was based on a legal finding and is, therefore, subject to this Court’s de novo review. See State v. Roach, 10-0991, p. 2 (La.App. 1 Cir. 12/22/10), — So.3d -, 2010 WL 5178116.

II

In In re Gault, the Supreme Court applied the fundamental Fifth Amendment right to counsel to juvenile proceedings. The Court held “that the Due |2Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.” In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). The Legislature too has provided that all federal and state constitutional rights guaranteed to criminal defendants, except the right to jury trial, are applicable to delinquency proceedings. See La. Ch.C. Art. 808. Specifically, “at every stage of proceedings under this Title, the accused child shall be entitled to the assistance of counsel at state expense.” La. Ch.C. Art. 809 B.

One aspect of this fundamental right to counsel is the ability of the accused to comprehend the proceedings as a function of the right to counsel. A defendant may not be put to trial unless he “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [and] a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The United States Supreme Court has “repeatedly and consistently recognized that the criminal trial of an incompetent defendant violates due process.” Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). Louisiana recognizes the constitutional necessity of mental competency to stand trial for both adult and juvenile offenders. See, e.g., State v. Snyder, 98-1078, p. 22 (La.4/14/99), 750 So.2d 832, 849; State v. Howard, 98-64, pp. 3-4 (La.4/23/99), 751 So.2d 783, 791-792. Thus, any attempt to place an incompetent child on trial would be a Due Process violation and is prohibited by the federal constitution. Accordingly, our interpretation of a Louisiana statute on mental competence ought to comport with the Federal Constitution.

J¿n

The state constitution generally provides that children accused of committing criminal offenses shall be specially treated: “The determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be pursuant to special juvenile procedures which shall be provided by law.” La. Const. Art. 5, § 19. The Legislature may, however, by a two-thirds vote of each chamber establish special exceptions so that juvenile procedures shall not apply. Id. The Louisiana Supreme Court has “founded upon Article V, § 19 a general rule of ‘non-criminal’ treatment of juveniles.” In re C.B., 97-2783, pp. 9-10 (La.3/4/98), 708 So.2d 391, 396. This “noncriminal” treatment means that “adult criminal treatment was the exception and that juveniles were not to be punished as adults, except as provided by the constitution.” C.B., 97-2783, p. 10, 708 So.2d at 396.

' The enabling legislation provides that “a court exercising juvenile jurisdiction shall have exclusive jurisdiction” over delinquency proceedings with two exceptions. La. Ch.C. Art. 303(1). The first exception is when a child “is subject to the jurisdiction of the criminal courts for prosecution and liability as an adult pursuant to Chapter 4 of this Title.” La. Ch.C. Arts. 303(1)(a), and 305-306.1. The second exception is when the child “has been transferred by the juvenile court for criminal prosecution and liability as an adult pursuant to Chapter 11 of Title VIII.” La. Ch.C. Arts. 303(l)(b), and 857-864. This latter exception does not apply to this case because it governs transfers to a court exercising criminal jurisdiction in which a delinquency proceeding has already been commenced by the filing of a petition by the district attorney. See La. Ch.C. Arts. 842 and 857 A. With respect to the former (or first) exception, as a general proposition, indictment by the grand jury is alone sufficient to transfer a child charged with armed robbery to the exclusive jurisdiction of a court exercising |4criminal jurisdiction and to pretrial detention in an adult facility. See La. Ch.C. Art. 305 B(l)(a), B(2)(d), and B(4).

But what is most important for our purposes in this matter is the recognition that because at the time that the child was determined to lack the mental capacity to proceed (that is, before the grand jury indictment) the court exercising juvenile jurisdiction was the court of exclusive jurisdiction. Stated slightly differently, the court with exclusive jurisdiction determined that this child lacked the mental capacity to proceed. See La. Ch.C. Art. 837 B. This finding means that “as a result of mental illness or developmental disability, a child presently lacks the capacity to understand the nature of the proceedings against him or to assist in his defense.” La. Ch.C. Art. 804(7); see also La. Ch.C. Art. 835 B(6)(c) (one factor is the child’s deficiency in “rendering assistance to defense counsel in preparation of the case.”)

Therefore, any effort to bring this child to trial any time before a court with jurisdiction, especially one with exclusive jurisdiction, determined the child to be competent, would violate the child’s Due Process rights under the Fifth and Fourteenth Amendments.

IV

Under the legislative enabling schema, the child has a considerable interest in not divesting the juvenile court of its exclusive jurisdiction during the period of his mental incapacity to proceed for at least two important reasons. First, a proper divestiture is irreversible or irrevocable. Once the criminal court rightfully acquires jurisdiction over the juvenile, there is no reverse transfer of jurisdiction back to the juvenile court. See La. Ch.C. Art. 305 D (“The court exercising criminal jurisdiction shall retain jurisdiction over the child’s case ... A plea to or conviction of a lesser included offense shall not revest jurisdiction in the court exercising | juvenile jurisdiction over such a child.”) Second, the disparate restorative treatments available to a child are dependent upon the kind of jurisdiction which the court is exercising over him. I discuss this aspect in greater detail.

Generally, because of the noncriminal nature of the juvenile system, a court exercising juvenile jurisdiction focuses on rehabilitation and individual treatment, as opposed to retribution. In re C.B., 97-2783, p. 10, 708 So.2d at 396-97. A child being prosecuted in a court exercising criminal jurisdiction is entitled to invoke the same special procedures for determination of his mental capacity as a child who is in a court exercising juvenile jurisdiction. See La. C.CR.P. Art. 644.1 A, and La. Ch.C. Arts. 833-836. But what happens to the child after a determination of mental incapacity to proceed is found by the two courts exercising different kinds of jurisdiction is dramatically different solely depending upon the kind of jurisdiction being exercised. La.C.Cr.P. Art. 644.1 B (“The provisions of Code of Criminal Procedure Articles 648 through 649.1 shall govern the determination of capacity or incapacity to proceed to trial.”)

A juvenile, in the parlance of the Code of Criminal Procedure, in the jurisdiction of a court exercising criminal jurisdiction who has been determined to lack the mental capacity to proceed is literally treated differently from a child, in the parlance of the Children’s Code, who has been determined to lack the mental capacity to proceed. The disparate treatment of the differently situated juvenile and child bears closer examination because it illuminates the issue before us.

The efforts at restoration of the competency of a juvenile charged with armed robbery who is being prosecuted in criminal court and who is found to be mentally incompetent are governed by the Code of Criminal Procedure. Article 648 provides various dispositions that the criminal court may impose. For example, if the district court determines that he may regain competence within ninety days, |fithe court may require that the accused remain in the custody of the authorities while receiving outpatient care. LA. C.CR.P. ART. 648 A(l). For a juvenile charged with armed robbery in the district court, “the court may order immediate jail-based treatment by the Department of Health and Hospitals not to exceed ninety days,” or if the court finds that his capacity cannot be restored in ninety days, the court will commit the juvenile to the Feliciana Forensic Facility. LA C.CR.P. ART. 648 A(2)(a). These are the same options available to adult defendants in the criminal system, but the options -available to children in the juvenile system are unavailable to the juvenile prosecuted in criminal court.

A child accused of armed robbery in a juvenile court found to be mentally competent will be afforded greater protections under the Louisiana Children’s Code. If the child lacks mental capacity, the juvenile court may dismiss the petition, order a family-based disposition by adjudicating that the family of the child is in need of services, commit the child to the Department of Health and Hospitals, a private mental institution, or an institution for the mentally ill and order restoration services, or place the child in the custody of his parents or another under terms and conditions that would best serve the interests of the child. La. Ch.C. Art. 837 B(l)-(4). Most importantly, the out-of-home placement or commitment of a child under the age of seventeen shall be in a separate unit and program from an adult forensic program. La. Ch.C. Art. 837 H.

I cannot overlook, therefore, that a child has considerable mental-health and liberty interests in asserting, and demanding, that the proper court exercise its proper jurisdiction. I would expect that depriving a child of the more appropriate restorative services available in juvenile jurisdiction proceedings would unfavorably lengthen his pretrial detention whether in an adult jail or in the Feliciana Forensic Facility.

JjY

I now turn to. consider the prosecution’s argument that the grand jury’s indictment of this child is sufficient to divest the juvenile court of its jurisdiction and is alone sufficient to vest exclusive jurisdiction in the district court exercising criminal jurisdiction.

I first observe that this argument requires us to accept that the Legislature in this one instance intended a prosecutorial procedure that was wholly inconsistent with its other pronouncements in similar situations. In all other permutations of the problem presented, just raising mental incapacity halts prosecutions. “When the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except institution of prosecution, until the defendant is found to have the mental capacity to proceed.” La.C.Cr.P. Art. 642 (emphasis added); see also State ex rel. Seals v. State, 00-2738 (La.10/25/02), 831 So.2d 828, 832-833 (discussing the criminal procedure in the district court once the issue of a defendant’s competency is raised). This applies to adults as well as juveniles prosecuted in a court exercising criminal jurisdiction. For a court exercising juvenile jurisdiction there is a comparable provision to the same effect: “When the question of the child’s mental incapacity to proceed is raised, there shall be no further steps in the delinquency proceeding, except the filing of a delinquency petition, until counsel is appointed and notified in accordance with Article 809(B) and the child is found to have the mental capacity to proceed.” La. Ch.C. Art. 832 (emphasis added). This, by its very terms, applies whether the district attorney has or has not filed a delinquency petition.

But the prosecution asks that we disregard the consistency in the manners in which prosecutions or proceedings are halted in both courts exercising criminal jurisdiction and juvenile jurisdiction and conclude that a prosecution is not halted when juvenile court is, it argues, automatically divested of its exclusive jurisdiction |Rby the indictment of this child and the case is in transit from a court exercising juvenile jurisdiction to a court exercising criminal jurisdiction. Yet the statute provides that “if a competency or sanity commission is ordered, except for the filing of a delinquency petition, no further steps to prosecute the child in a court exercising criminal jurisdiction shall occur until ... the court determines mental capacity to proceed in accordance with Chapter 7 of Title VIII.” La. Ch.C. Art. 305 E(l)(b) (all emphasis added).

It is worthwhile to note that the triggering mechanism under Article 305 E(l) is that the competency commission has been ordered, not simply that the mental incapacity of the accused has been raised. Cf. La.C.Cr.P. Art. 642, and La. Ch.C. Art. 832. This is a salutary safeguard against tactics designed solely to obstruct or unjustifiably delay the divestiture of the juvenile court’s jurisdiction when the grand jury has decided to indict a child.

So long as juvenile court had exclusive jurisdiction over this child, until his capacity to proceed is restored, the only step authorized is the filing of a delinquency petition. The institution of prosecution in a court having criminal jurisdiction, whether by indictment or information, is a further step to prosecute a child in a court exercising criminal jurisdiction. See La. C.CR.P. Art. 382 A, and 383-384; see also La.C.Cr.P. Art. 381 (“A criminal prosecution is brought in the name of the state in a court of criminal jurisdiction, for the purpose of bringing to punishment one who has violated the criminal law.”)

| aIn our case, however, not only was the mental examination of the child ordered and a competency commission appointed, but the juvenile judge actually determined that the child lacked the mental capacity to proceed. Several months passed before the grand jury indicted. After the indictment, and for reasons not explained to us, neither the district attorney nor the defense counsel took any action for many months to halt the criminal proceedings on account of the competency commission’s and the juvenile judge’s findings of mental incapacity to proceed. In other words, not only did the lawyers act as if this child had the mental capacity to proceed, they also acted as if the juvenile proceedings had never occurred.

Thus, many further steps, even beyond the indictment itself, were taken to prosecute this child in a court exercising criminal jurisdiction.

That Article 305 E(l) is directed to preventing divestiture of the juvenile court’s jurisdiction under these circumstances is plain to me for several reasons. First, the expressed limitation to the single step which might be taken being the filing of the delinquency petition; this is the only charging instrument available in juvenile court. The article does not provide for, as the prosecution urges, “indictment,” or “information,” or the more generic “institution of prosecution,” as they have no place in juvenile court. Second, indeed the Children’s Code never uses the term “prosecution” to describe its own juvenile jurisdiction proceedings, but only to refer to criminal jurisdiction proceedings. See, e.g., La. Ch.C. Art. 857 A (“to consider whether to transfer a child for prosecution to the appropriate court exercising criminal jurisdiction”). Third, Article 305 E(l) addresses a court “exercising criminal jurisdiction.” The article need not address its own juvenile proceedings as any juvenile proceedings are already halted by operation of Article 832. Fourth, Article 305 E(2) would be rendered nonsensical. “When a child has |inbeen charged with one or more crimes listed in Article 857, has reached twenty-one years of age and is incompetent, the court on its own motion or on motion of the district attorney may conduct a hearing to consider whether to transfer the child for further proceedings to the appropriate court exercising criminal jurisdiction.” LA. CH.C. ART. 305 E(2). If the juvenile court had been divested of its jurisdiction, there would be no need for this kind of transfer.

■ While it may be that the Legislature could constitutionally allow a divestiture of the juvenile court’s exclusive jurisdiction after the court’s ordering a competency hearing or even after a court’s finding of mental incapacity, I am certain that the Legislature could not provide for a procedure which ignores a finding of a child’s incápacity and compels the child to a criminal trial. The Legislature is not permitted to condone a procedure which violates a child’s Due Process rights.

That inescapable truth is the strongest argument against the prosecution’s interpretation of the statute. The plain, not strained, reading of Article 305 E(l) comports with the requirements of Due Process — to halt any and all prosecutorial and-delinquency proceedings of a child who lacks mental capacity to proceed. The child can also access the statutory benefits of age-appropriate restorative care.

VI

If the district attorney at this time files, as he is permitted to do, a delinquency petition, then he may upon the restoration of the child’s mental capacity seek an Article-857 transfer hearing. If he decides not to file a delinquency petition, upon the restoration of the child’s mental capacity, he may seek from the grand .jury a new indictment under Article 305 B(l)(a), or seek a [^continued custody hearing and file a bill of information under Article 305 B(l)(b). But until the child’s mental capacity to proceed is restored, juvenile court is the court of exclusive jurisdiction.

For those preceding additional reasons, I join the majority in affirming the district court’s sustaining the motion to quash the indictment because the district court had no jurisdiction over the offense charged. See La.C.Cr.P. Arts. 16 (“Courts have the jurisdiction and powers over criminal proceedings that are conferred on them by the constitution and statutes of this state, except as their statutory jurisdiction and powers are restricted, enlarged, or modified by the provisions of this Code.”), and 532(8) (“A motion to quash may be based on one or more of the following grounds: ... the court has no jurisdiction of the offense charged.”) 
      
      . The initials of the juvenile involved in this case are used in this opinion in order to protect his privacy.
     
      
      . The offense occurred on April 4, 2009; M.C. was born on May 18, 1992.
     
      
      . Although the record from juvenile court is not contained in the record on appeal, the record does contain a copy of the juvenile court’s May 26, 2009 judgment addressing M.C.'s competency.
     
      
      . Prosecutorial waiver refers to a transfer method that covers an enumerated list of offenses set forth in Ch.C. art. 305(B); armed robbery, the crime M.C. is alleged to have committed, is one of those enumerated offenses. This method of transfer is commonly called "prosecutorial waiver” as it is the prosecutor’s charging decision that determines if the juvenile will be tried as an adult. State v. Hamilton, 96-107, p. 3 (La.7/2/96), 676 So.2d 1081, 1082.
     
      
      . Children’s Code Article 305(A) vests exclusive jurisdiction in the appropriate court exercising criminal jurisdiction over a child fifteen years of age or older who is indicted for any of several enumerated crimes, one of which is second degree murder. "This automatic and irreversible divestiture of jurisdiction from the juvenile court to the district court is generally called ‘legislative waiver' because legislative fiat has automatically waived juvenile court jurisdiction in these cases.” Hamilton, 96-107 at p. 3, 676 So.2d at 1082.
     
      
      . In an apparent response to the Louisiana Supreme Court's unanimous denial in March 2010 of the State’s writ application in T.C., supra., the Louisiana Legislature in its 2010 session attempted unsuccessfully "to eliminate this [special competency] protection [in La. Ch.C. art. 305(E)].” Hector Linares and Derwyn Bunton, An Open Door to the Criminal Courts: Analyzing the Evolution of Louisiana’s System for Juvenile Waiver. 71 La. L.Rev. 191, 228, n. 140 (2010). The bill "almost succeeded but was thwarted when House Bill 1106 died in a Senate committee after having been unanimously approved in the House of Representatives.” Id. The proposed amendment to La. Ch.C. art. 305(E), as passed by the Louisiana House of Representatives, would have amended this provision to read:
      E. (1) If a competency or sanity examination is ordered, except for the filing of a delinquency petition, the return of an indictment, or the filing of a bill of information, no further steps to prosecute the child in the court exercising criminal jurisdiction shall occur until the proper court exercising jurisdiction determines the child’s mental capacity to proceed.
      (2) When an indictment has been returned or a bill of information has been filed pursuant to this Subsection, the district court exercising criminal jurisdiction shall be the proper court to determine the child’s mental capacity to proceed. In all other instances, the juvenile court shall be the proper court to make this determination.
     
      
      . See also La. Ch.C. Art 863 A, which applies to post-petition cases transferred from a court exercising juvenile jurisdiction to one exercising criminal jurisdiction.
     
      
      . The portion omitted in the ellipsis reads, "counsel is appointed for the child and notified in accordance with Article 809.” La. Ch. C. Art. 305 E(l)(a).
     
      
      . This higher standard for halting proceedings, it seems to me, reasonably answers the prosecution's argument that control of the prosecution is in the hands of the defense counsel and not the district attorney. See State in Interest of T.C., 09-1852, p. 9 (La.App. 1 Cir. 2/12/10), 35 So.3d 1088, 1092 (Carter, C.J., dissenting). But also see Meghan C. Harwell, Louisiana Progress Journal, "Roadblocks to Change: Juvenile Justice Reform and the Louisiana 2010 Legislative Session,” pp. 4-5 (Fall 2010) (for discussion on the Legislature’s more recent enactments to expand and expedite the appointment of counsel for children accused of delinquent acts and the authorities referred to therein).
     
      
      . The revision in 2004 of Articles 832 through 838 reflect ongoing reforms in the area of juvenile justice; as Professor Lucy McGough has noted, these articles were revised "to reflect the importance of the youth’s understanding, comprehension of his risk and ability to assist defense counsel in preparation of the defense. If mental incapacity is raised, counsel must be appointed if not already assigned and the delinquency proceeding stayed until the issue is resolved.” Lucy S. McGough, Louisiana Children's Code Handbook, “A Decade of Juvenile Justice Reform,” p. xxvii (2009-2010).
     
      
      . Note that the transfer in this article is "for further proceedings” and not a transfer "for prosecution” as provided in Article 857 A. Modifying the conditions of continued detention of a now-adult incompetent person hardly presents the kinds of concerns which arise in adolescents’ mental-health issues. See Roper v. Simmons, 543 U.S. 551, 567, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (Society views juveniles generally and mentally incompetent adults specifically as "categorically less culpable than the average criminal.’’).
     
      
      . It seems to me that this is exactly what was attempted in this case.
     