STATE IN THE INTEREST OF T. J.
FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NOS. 2015-JC-556, 2015-JC-128 HONORABLE MICHELLE
M. BREAUX, DISTRICT JUDGE
Duncan Fifteenth Judicial District Public Defender's
Office COUNSEL FOR APPLICANT: T. J.
A. Stutes District Attorney, Fifteenth Judicial District
Christine B. Roberts Assistant District Attorney COUNSEL FOR
RESPONDENT: State of Louisiana
composed of John D. Saunders, Elizabeth A. Pickett, and
Shannon J. Gremillion, Judges.
EIZABETH A. PICKETT, JUDGE
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
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
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
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.
March 9, 2017, the state filed an opposition to the
juvenile's writ application.
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.
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.
"[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.
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.
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
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.
State in the Interest of H.N., 15-173, p. 5 (La.App.
5 Cir. 6/30/15), 171 So.3d 1242, 1246.
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.
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.
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).
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
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 ...