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State ex rel. T. J.

Court of Appeals of Louisiana, Third Circuit

April 26, 2017

STATE IN THE INTEREST OF T. J.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NOS. 2015-JC-556, 2015-JC-128 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

          Leanna Duncan Fifteenth Judicial District Public Defender's Office COUNSEL FOR APPLICANT: T. J.

          Keith A. Stutes District Attorney, Fifteenth Judicial District Christine B. Roberts Assistant District Attorney COUNSEL FOR RESPONDENT: State of Louisiana

          Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

          EIZABETH A. PICKETT, JUDGE

         On September 21, 2015, the juvenile appeared for an adjudication hearing on docket numbers 2015-JC-128 and 2015-JC-556. At the adjudication, the juvenile entered into a plea agreement with the state, in which the juvenile admitted to illegal possession of a handgun by a juvenile in docket number 2015-JC-128 and to possession with intent to distribute marijuana in docket number 2015-JC-556. In exchange, the state dismissed five remaining counts. Additionally, the district court entered a bargained-for disposition for each delinquent act, six months detention. The adjudicating court then designated the detention was to be served consecutively, suspended the detention, imposed fifteen months of supervised probation, and ordered the probationary periods to be served concurrently. In docket number 2015-JC-128, the district court also imposed the following special conditions of probation: eighty hours of community service, house arrest with ankle monitoring, no unexcused absences, and forfeiture of property seized in conjunction with the juvenile's arrest.

         On August 30, 2016, the state filed a rule to revoke probation, alleging the juvenile tested positive for drugs, failed to complete drug treatment, and failed to complete community service. At the September 14, 2016, hearing on the motion to revoke probation, the district court required the juvenile to serve seven days of detention for failing the drug test and noted the juvenile still had time to complete his required community service.

         On December 20, 2016, the state filed a "Motion to Modify Disposition" in both docket numbers seeking an extension of the juvenile's probationary period. The state alleged the juvenile had thirty unexcused absences and seventeen write-ups. The state additionally alleged the juvenile had failed to attend drug treatment and complete his required community service. The state sought a six-month extension of probation under La.Ch.Code arts. 909-910 to allow the juvenile to complete the required community service and drug court program. The state further requested the district court require the juvenile to refrain from further unexcused absences.

         On February 8, 2017, the district court held a hearing on the state's motion. At the hearing, the juvenile, through counsel, objected to the motion and sought to dismiss the pleading based on the argument that the filing of the motion did not interrupt prescription and that the relevant date, instead, should be February 6, 2017, the date the juvenile and his mother were served with notice of the hearing. The district court overruled the objection and, following presentation of additional evidence and argument, granted the state's motion to extend the probationary period. The juvenile's lawyer then noted her objection to the ruling and gave verbal notice of her intent to seek supervisory review on the issue.

         On March 9, 2017, the state filed an opposition to the juvenile's writ application.

         DISCUSSION

         The juvenile's attorney presents the following single assignment of error: "The juvenile court erred by granting the state's motion to modify disposition, because the court lacked jurisdiction once T.J.'s probation concluded on December 21, 2016, and the filing of the state's motion to modify disposition, did not stop the running of T.J.'s probation period." The juvenile points out that neither La.Ch.Code art. 909 nor La.Ch.Code art. 910 specifically address when a trial court's authority to amend a disposition ceases; the juvenile further alleges that none of the remaining children's code articles resolve the issue. The juvenile advances, therefore, under La.Code Crim.P. art. 896(A), the trial court was without authority to extend the juvenile's probationary period because the extension was not done during the probationary period since the juvenile's probationary period ended the day after the state filed its motion, December 21, 2016.

         The purpose of the delinquency title in the Louisiana Children's Code is set forth by La.Ch.Code art. 801, which requires the preservation of due process:

The purpose of this Title is to accord due process to each child who is accused of having committed a delinquent act and, except as provided for in Article 897.1, to insure that he shall receive, preferably in his own home, the care, guidance, and control that will be conducive to his welfare and the best interests of the state and that in those instances when he is removed from the control of his parents, the court shall secure for him care as nearly as possible equivalent to that which the parents should have given him.

         Moreover, "[a]ll rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to jury trial, shall be applicable in juvenile court proceedings brought under this Title." La.Ch.Code art. 808.

         The Louisiana Children's Code ensures the preservation of procedural due process in juvenile delinquency proceedings by relying upon the Louisiana Code of Criminal Procedure to cover the gaps in the procedures set forth in the in the Louisiana Children's Code: "The provisions of this Title shall govern and regulate delinquency proceedings of courts exercising juvenile jurisdiction. Where procedures are not provided in this Title, or otherwise by this Code, the court shall proceed in accordance with the Code of Criminal Procedure." La.Ch.Code art. 803.

         In support of the principle that the Louisiana Code of Criminal Procedure applies to juvenile delinquency proceedings in areas not provided for by the Children's Code, the juvenile's attorney cites to a case requiring the application of the post-conviction relief articles to a juvenile case:

The Children's Code does not provide for post-conviction relief. However, this Court has consistently found that juveniles must be advised of the two-year prescriptive period to apply for post-conviction relief under La.C.Cr.P. art. 930.8. See State in the Interest of B.D., 13-760 (La.App. 5 Cir. 4/23/14), 140 So.3d 308, 313, writ denied, 14-1093 (La.1/9/15), 157 So.3d 597; State in the Interest of B.G., 13-445 (La.App. 5 Cir. 10/30/13), 128 So.3d 1211, 1214-15; State in the Interest of D.L., 11-835 (La.App. 5 Cir. 05/22/12), 96 So.3d 580; State in the Interest of D.S., 11-416 (La.App. 5 Cir. 12/28/11), 83 So.3d 1131, 1139; State in the Interest of O.R., 96-890 (La.App. 5 Cir. 2/25/97), 690 So.2d 200; see also State in the Interest of J.D., 13-964 (La.App. 4 Cir. 11/27/13), 129 So.3d 831. Therefore, we find that juveniles are entitled to seek post-conviction relief, including a request for an out-of-time appeal, within the two-year prescriptive period set forth under La.C.Cr.P. art. 930.8.

State in the Interest of H.N., 15-173, p. 5 (La.App. 5 Cir. 6/30/15), 171 So.3d 1242, 1246.

         In this case, we must determine if the "Motion to Modify Disposition" filed on behalf of J.T. constitutes a motion to modify a disposition pursuant to La.Ch.Code art. 909 or a motion to revoke probation pursuant to La.Ch.Code art. 913. It is the content of the pleading, rather than its caption, that determines its nature. State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703 So.2d 32. Pursuant to La.Ch.Code art. 909, the juvenile court retains the authority to modify a disposition as long as the disposition is still in effect:

Except as provided for in Article 897.1 [juvenile life delinquent acts and armed robbery], after the entry of any order of disposition, the court retains the power to modify it, including changing the child's legal custody, suspending all or part of any order of commitment, discharging conditions of probation, or adding any further condition authorized by Article 897(B) or 899(B). It may also terminate an order of disposition at any time while it is still in force.

         "The trial court retains the power to modify a disposition at any time the disposition is in force. See State v. J.R.S.C., 2000-2108 (La. 6/1/01), 788 So.2d 424." State ex rel. C.H., 03-1279, p. 2 (La.App. 3 Cir. 1/28/04), 865 So.2d 947, 948.

         However, the jurisdiction to modify a disposition ends once the disposition expires or is satisfied: "A court exercising juvenile jurisdiction no longer exercises such jurisdiction in any proceeding authorized by this Code upon: .... (5) Expiration, satisfaction, or vacation of a juvenile disposition or adult sentence." La.Ch.Code art. 313(A).

         Alteration of a juvenile's disposition may be accomplished through the filing of a motion for modification of disposition, which may be filed for the purposes of either lightening the conditions of probation or increasing the restrictions thereof, pursuant to La.Ch.Code art. 910:

A. Except as specially provided hereinafter in Articles 911 through 916, a motion for modification may be filed by the district attorney, the child, his parents, the custodian of the child, a probation officer, or the court. A motion for modification shall be in writing and shall set forth in plain and concise terms the facts supporting the modification.
B. Any motion to modify may be denied without a hearing.
C. When the motion to modify seeks the imposition of less restrictive conditions, the court may modify a judgment without a contradictory hearing.
D. When the motion to modify seeks the imposition of more restrictive conditions, the court shall conduct a contradictory hearing, except upon the waiver of the parties.
E. A judgment of disposition shall not be modified to release a child from the custody of a public or private mental institution or an institution for persons with mental illness without three days prior notice to the district attorney and the institution.
F. If a judgment of disposition is modified, a copy of the minute entry reflecting the modification shall be served upon the district attorney, the child, his parent, and any person, institution, or ...

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