
    M.W.B. v. STATE.
    CR-95-0530.
    Court of Criminal Appeals of Alabama.
    May 24, 1996.
    Opinion on Return to Remand Sept. 27,1996.
    Opinion on Second Return to Remand April 18,1997.
    Rehearing Denied July 3, 1997.
    Certiorari Quashed April 24,1998 Alabama Supreme Court 1961728.
    J. Louis Wilkinson, Birmingham, for appellant.
    Jeff Sessions, atty. gen., and Stephen Dodd, asst. atty. gen., for appellee (on original submission and on return to remand).
    
      Jeff Sessions and Bill Pryor, attys. gen., and Stephen Dodd, asst. atty. gen., for appel-lee (on second return to remand).
   PATTERSON, Judge.

M.W.B. appeals from an order transferring him from the juvenile court to the circuit court to be tried as an adult on three counts of vehicular homicide.

The attorney general asks that we remand this case for the circuit court to enter a written transfer order. The prosecutor’s motion to transfer M.W.B. to the circuit court to be tried as an adult was first heard in the juvenile court. That court granted the state’s motion, and M.W.B. appealed that ruling to the circuit court pursuant to Rule 28(B), Ala.R.Juv.Proc. As both parties recognize, Rule 28(B) requires that an appeal of the final order of the juvenile court to the circuit court is for a trial de novo.

Section 12-15-34©,-Ala. Code 1975, states, ‘When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion, which shall include a finding of probable cause for believing that the allegations are true and correct.” Section 12-15-34(d) lists six factors a court must consider in determi-nating whether to transfer a juvenile. The Alabama Supreme Court held in Reeves v. State, 419 So.2d 217, 218 (Ala.1982), that § 12-15-34(d) “compels consideration of each of the six factors and that the transfer order reflect consideration thereof.” The court reaffirmed that holding in Ex parte S.B., 650 So.2d 953 (Ala.1994).

The record contains the necessary order issued by the juvenile court judge. However, because the proceeding in the circuit court is de novo, the circuit court could not. simply “uphold the transfer” and affirm the judgment of the juvenile court, as it did. Hearing the case de novo, the circuit court was also bound to follow § 12-15-34(d) and (f). See McKinney v. State, 404 So.2d 639 (Ala.1981). Pursuant to' this authority, we remand this case for the circuit court for that court to issue a written order reflecting consideration of the six statutory factors. The circuit court is “to hold another evidentiary hearing in order for it to comply with § 12-15-34,” Stubbs v. State, 522 So.2d 9, 11 (Ala. Cr.App.1988), and “the corrected record must disclose that the transferring court, upon remand, did consider evidence of relevant factors not addressed in its former, incorrect or insufficient order,” id. See also Ex parte S.B., 650 So.2d at 957 (in finding that the transfer order did not reflect consideration of all of the factors noted in § 12-15-34, the court directed the juvenile court “to reconsider whether to transfer S.B. for trial as an adult, and, if it decides to do so, to enter a corrected transfer order in compliance with § 12-15-34”).

M.W.B. also contends that the evidence presented at the transfer hearing was insufficient to establish probable cause or the. need to transfer. The evidence at the hearing established the following facts:

At approximately 9:35 p.m. on December 18,1993, M.W.B. was driving a 1984 Corvette automobile that collided with another vehicle. As a result of this collusion, three people in the other vehicle were killed. M.W.B.’s vehicle was travelling north, and the other vehicle was travelling south. The point of impact occurred in the southbound lane in a curve. Tire marks at the scene showed that, before the collision, M.W.B.’s vehicle had run onto the shoulder of the road and then back onto the road where the tires left skid marks of 107 feet. The estimated speed of M.W.B.’s vehicle’s at the point where the skid marks began was 65 miles per hour. The speed limit was 55 miles per hour. The impact stopped the other vehicle’s forward momentum and pushed that vehicle totally off the road and onto the driver’s side. The point of impact on M.W.B.’s vehicle was on the passenger’s side, and the vehicle travelled 57 feet after impact.

The trooper who investigated the accident testified that about 10 p.m. on a Saturday evening about one week before the accident, he had stopped M.W.B. because he was driving his vehicle at a speed in excess of the posted speed limit; that he smelled an odor of alcohol about M.W.B., so he conducted a field sobriety test (consisting of an Alka-sensor test, portable breath test, and a horizontal gaze nystagmus test); that he did not arrest M.W.B. for driving under the influence because it was his opinion that M.W.B. “was not impaired to the point”; and that he also did not give him a speeding ticket even though the vehicle was travelling at what he described as a “dangerous” and “high rate of speed,” but that he did give him a written and verbal warning because he thought “that a traffic citation was warranted.” The trooper further testified that, while he was conducting a driver’s license-equipment-sobriety check roadblock in the spring or summer following the accident, he saw M.W.B. in the back seat of a vehicle; that, when he stopped the vehicle the trooper found several cans of beer in zipper compartments in the back seat of that vehicle, that M.W.B. along with the other four or five occupants were arrested for illegal possession of prohibited beverage; that someone later claimed the beer; and that M.W.B. was not convicted as a result of this later incident.

There was also reference made to an incident in which M.W.B. was a passenger in a vehicle stopped by a deputy sheriff. Apparently the driver of the vehicle was arrested for driving under the influence; a case of beer was recovered from the vehicle; and M.W.B., according to his mother, had not been drinking.

The evidence at the transfer hearing also established that at the time of the hearing M.W.B. was 18 years old; that one to two hours after the accident, he was administered a blood alcohol test that registered zero; that, at the time of the accident, M.W.B. was a junior in high school, where he maintained a “C” average and was on the first string of the varsity football team; that he had had no previous contact with juvenile authorities; and that his school records for the 1993-94 and 1994-95 school years show that he was cited for talking in class, for missing a class, and for not doing a class assignment.

The juvenile probation officer’s report reflected further that M.W.B. has no past record in juvenile court; that he has shown little emotion in public for the incident, although his mother claims that he has shown remorse at home; and that he appears to be of normal intelligence.

At this time, we decline to address the issue whether this evidence was sufficient to establish probable cause or the need to transfer. Because the objective of mandatory compliance with § 12-15-34(d) — which was not accomplished here — is to provide a “meaningful review;” Stubbs v. State, we find that this issue will be better reviewed after this court has been provided a proper transfer order.

Accordingly, we remand this case. The circuit court is to take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court.

REMANDED WITH DIRECTIONS.

All Judges concur.

On Return to Remand

PATTERSON, Judge.

On original submission, we directed the circuit court to hold another evidentiary hearing on the question of whether M.W.B. should be transferred from juvenile court to stand trial as an adult for three counts of vehicular homicide and also to issue written findings in compliance with § 12-15-34, Code of Alabama 1975.

We cannot properly review this case because the record on return to remand does not contain a transcript of the hearing ordered in our remand opinion. While we recognize that the transfer hearing held before the circuit court’s affirmance of the juvenile court’s transfer order was a full evidentiary hearing, we are constrained to follow the mandate of Ex parte Minor, 502 So.2d 776 (Ala.1986), which reversed this court’s holding that a new evidentiary hearing is not necessary on remand for the correction of the transfer order. Thus, this case is remanded for the circuit court to hold another evidentiary hearing in compliancé with Minor. As long as the circuit court gives each side the opportunity to submit additional evidence, we see no reason why the court cannot merely adopt by reference the testimony and evidence introduced at the first hearing. See C. Gamble, McElroy’s Alabama Evidence § 484.02(2) (“The circuit court takes judicial notice of all parts of its record of the case in hand.”).

The circuit court is to take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days of the release of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the circuit court.

By our action in this opinion, the petition for the writ of mandamus filed by M.W.B. after the submission of this case on return to remand is rendered moot and is therefore dismissed.

REMANDED WITH INSTRUCTIONS.

All Judges concur.

On Second Return to Remand

PATTERSON, Retired Appellate Judge. AFFIRMED BY MEMORANDUM.

LONG, P.J., and McMILLAN, BROWN, and BASCHAB, JJ., concur.

COBB, J., concurs in part, dissents in part.

COBB, Judge,

concurring in part, dissenting in part.

I concur with part A of the memorandum issued today by the majority because I agree that the probable cause finding was not clearly erroneous. I dissent, however, from part B of the memorandum regarding the decision to transfer M.W.B. to the circuit court for trial as an adult.

The majority’s conclusion is supported by Alabama caselaw. Yet it is a perfect example of how all too often the orderly development of legal principles has been hindered by our burgeoning caseload. Not only does this case illustrate this point by its questionable facts, but also by the trial court’s failure to apply the clear and convincing standard established by this court in O.M. v. State, 595 So.2d 514 (Ala.Cr.App.1991). Therefore, this dissent is generated out of my belief that this case was inappropriate for transfer to circuit court.

I

The transfer of cases involving juveniles to the circuit court where ,the juveniles are tried as adults is certainly on. the rise. However, transferring children for trial as adults has not achieved the desired result of making children more accountable for their behavior and, therefore, decreasing criminal activity among children. Federal Bureau of Investigation, United States Department of Justice, Uniform Crime Reports for the United States 1994, 5-7, 10-12, 35-37 (1995). Because of perceptions (some would say mis-perceptions) that juvenile judges were not transferring enough cases involving juvenile offenders to the circuit court, the legislature passed Act No. 94-481, 1994 Ala.Acts, codified at § 12-15-34.1, Ala. Code 1975. That act modified the jurisdiction of the juvenile court by declaring that children 16 years of age or older who commit certain enumerated violent offenses are to be treated as adults and that, therefore, these children are no longer within the jurisdiction of the juvenile court. The long-term results of this legislative change are yet to be seen.

The juvenile court was designed so that a child who commits a criminal offense would be treated in such a way that the child would learn from his mistake and not reoffend. The special terms used in juvenile proceedings illustrate the differences in the way the criminal justice system views a juvenile offender as compared to an adult offender. These terms reflect more than just semantic differences.

The juvenile court is charged with deciding what is in the best interest of the child. Nevertheless, there should be balancing of the public’s interest against the child’s interest. In the bifurcated transfer proceeding, once probable cause has been established, the court then conducts a dispositional hearing in order to determine whether the juvenile is amenable to treatment. If the juvenile is beyond benefiting from the services the juvenile court has to offer, then the public interest would demand that the juvenile be treated as an adult.

Generally, three types of cases are transferred to adult court. The most frequently transferred case involves a violent offense committed by a child who has a lengthy juvenile record. Second, a juvenile judge will generally transfer a case regardless of the seriousness of the offense when it involves a child who has had ongoing contact with the juvenile court and has been committed to the Department of Youth Services' on more than one occasion; this is a child who has been under the constant supervision of the juvenile court, has been offered its services, however limited they may be, and whose behavior has failed to improve. Third, a juvenile judge will usually transfer a case that involves an older child with a relatively clean record when the offense is heinous or violent in nature.

This case does not fall within any of these categories. The results of M.W.B.’s actions were horrendous — three innocent people lost their lives — but the underlying act was not itself horrendous. The state trooper who investigated the accident testified that the evidence indicated that M.W.B.’s vehicle slid onto the shoulder of the road, and after it returned to the pavement, it crossed the center line. The skid marks before the point of impact and other factors led the trooper to estimate that M.W.B. was traveling 10 m.p.h. over the posted speed limit. There was no evidence that alcohol was involved in the accident. At most, M.W.B. was negligent.

Neither was this a case of a repeat offender, for M.W.B. had never been referred to the juvenile court. The worst thing the trial judge could say about this high school student was that he had been given a warning ticket for speeding and he had once been in the presence of other teenagers who were drinking. The same could be said about almost every teenager in Alabama. It certainly cannot be said that M.W.B. had not taken advantage of the rehabilitative efforts of the juvenile court — he had no prior record. But for the unfortunate loss of innocent lives, M.W.B. possibly would have faced a charge of speeding, which is not a major criminal offense but a misdemeanor.

II

Justice Kennedy, in an opinion dissenting from the quashing of a writ of certiorari by the Alabama Supreme Court in Ex parte J.R., 582 So.2d 444 (Ala.1991), discussed the standard of proof and the standard of review in juvenile transfer proceedings. He noted that the burden of proof for the probable cause phase of the transfer hearing was whether a reasonably prudent man would believe that the offense had been committed and that the juvenile offender had committed it. He noted, too, that no burden of proof for the dispositional phase of the proceeding had been pronounced by the appellate courts. Id. at 445-46. He noted further that the following appellate standard of review for both phases of transfer hearings had gradually “evolved”: probable cause and transfer decisions will not be reversed on appeal unless they are clearly erroneous. Justice Kennedy agreed that a probable cause determination should not be set aside unless it was clearly erroneous. Id. at 448. He asserted, however, that the Alabama Supreme Court should establish a burden of proof and a standard of review for the dispositional phase, and that each should be by “clear and convincing evidence,” that is, the “juvenile court may grant a motion to transfer a juvenile if it finds from cléar and convincing evidence that it is in the best interest of the child or the public to do so,” Id. at 446-47, and “an appellate court must find, within the record, clear and convincing evidence in order to affirm a juvenile court’s determination at the disposition hearing that it is in the best interest of the child or the public to transfer the child for prosecution.” Id. at 449.

In O.M. v. State, 595 So.2d 514 (Ala.Cr. App.1991), this court adopted Justice Kennedy’s dissenting opinion oii the standard of proof issue in Ex parte J.R. In many of the cases in which this court has purported to apply this standard, however, it appears to me that it has done no more than review the record to determine whether the trial court considered the six factors set out in § 12-15-34(d). E.y., D.R.H. v. State, 615. So.2d 1327, 1329 (Ala.Cr.App.1993) (upholding the transfer and stating, “The court viewed the evidence and considered all of the factors listed in § 12-15-34(d) in reaching its decision”). This result is incomprehensible to me. The fact that the trial court has included statutory verbiage or mentioned in its order that it considered these six factors does not, in any way, reheve this court from its obligation- to conduct an independent review of the record to determine whether clear and convincing evidence exists to support the transfer of the child for prosecution as an adult.

In other eases, this court has not conducted the review required by its own caselaw. For example, in AM. v. State, 621 So.2d 369 (Ala.Cr.App.1992), this court affirmed the transfer of a juvenile charged with receiving stolen property, even though ■ there is no mention of any of the other factors relevant to the transfer decision, such as any prior delinquency record, the nature of any past efforts, or the interests of the community. In other eases, this court has failed to apply the correct standard of review. E.g., B.L.S. v. State, 628 So.2d 1034, 1036 (Ala.Cr.App. 1993) (quoting the clear and convincing standard of review and applying the abuse of discretion standard of review); R.J. v. State, 627 So.2d 1163, 1169 (Ala.Cr.App.1993) (applying both the “abuse of discretion” standard and the “clear and convincing” standard); D.R.H. v. State, 615 So.2d 1327, 1329 (Ala.Cr.App.1993) (applying the abuse of discretion standard of review).

This case provides yet another example, in my opinion, of this failure to conduct a thorough analysis of the evidence and apply the appropriate standard, because there is no clear and convincing evidence in this case to support the transfer of M.W.B. to circuit court for trial as an adult. Certainly the loss of three lives made this a very serious accident. However, a review of the facts demonstrates that the harm was unintended. M.W.B. has no prior record. There were no “past treatment efforts” with regard to M.W.B., so there can be no evaluation of the nature of his response to any treatment efforts. The juvenile court and the majority of this court apparently considered a written warning from a trooper as if it were some type of past treatment effort to which M.W.B. failed to respond; I do not agree with that comparison. The fact that M.W.B. was traveling 10 m.p.h. over the speed limit approximately one week after he received a written warning for speeding does not in any way alter the fact that M.W.B. received no prior treatment or services through the juvenile court, which clearly is what is meant by the statute. The juvenile court described the child’s demeanor as “not good,” but the probation officer stated that M.W.B. “carried himself well” and that he is generally well liked by his peers at school. The juvenile court found.M.W.B. to be physically and mentally mature, but the probation officer stated that he was less mature physically than others his age. The probation officer stated that, because he lacked a juvenile record and because the deaths were unintended, the child’s and community’s best interests warranted keeping the matter in juvenile court.

It is certainly true, as the majority states, that the existence of contrary evidence does not preclude a juvenile’s transfer to circuit court. However, there must still be evidence that clearly convinces this court that it is in the best interests of M.W.B. or the public that M.W.B. be transferred. That standard cannot be met here. The lack of a juvenile record, the lack of prior treatment efforts, and the nature of the crime can only, in my opinion, militate against a transfer. The contradicting evidence on the remaining factors further demonstrates that the evidence as a whole does not satisfy the clear and convincing standard.

I-cannot imagine a case more appropriate for adjudication in the juvenile court. In light of the above, I would reverse the lower court’s order transferring the cause for prosecution in circuit court. Therefore, I respectfully dissent. 
      
      . The actual exhibits show that, during the 1993-94 school year, M:W.B. had 13 discipline infractions, some for failure to do class assignments, for failure to get approval to miss classes, and for tardiness. They also show that, during the 1994-95 school year, M.W.B. had five discipline infractions: two for talking that interrupted the class and three for not getting approval from the teacher to be absent from class.
     
      
      . The Alabama Court of Criminal Appeals has the second highest mandatory caseload per judge among all intermediate appellate courts in the United States. National Center for State Courts, State Court Caseload Statistics (1995).
     
      
      . For example, when we discuss juveniles we speak of "detain” not “incarcerate”; "detention center” not “jail"; "petition” not “arrest warrant"; "admitting the allegations of the petition” not "pleading guilty”; and "disposition” not "sentence”.- See §§ 12-15-1, 12-15-71(c), Alabama Code 1975.
     
      
      . I share with Justice Cook the concern he expressed in his special concurrence in Ex parte Knowles, 689 So.2d 832 (Ala. 1997), that § 32-5A-192, Ala. Code 1975, violates due process because it imposes criminal felony sanctions in the complete absence of a culpable mental state.
     
      
      . Section 32-5A-8, Ala. Code 1975, provides that violations of the traffic code are misdemeanors, unless otherwise specified, and the first conviction may be punished by a fine of up to $100.00 or by not more than 10 days in jail.
     
      
      . In T.R.D. v. State, 673 So.2d 838, 843 (Ala.Cr. App.1995), I, too, referred to the abuse of discretion standard.
     