A juvenile must justify the transfer of prosecution to the juvenile division by showing they have not previously been found to have committed two specific delinquent acts.
A juvenile charged as an adult for burglary challenged the constitutionality of a statute requiring the defendant to prove they had not previously committed two delinquent acts to qualify for a transfer to juvenile court. The defendant argued that this requirement unconstitutionally shifts the burden of proof regarding an element of the crime. The court holds that the statute does not create a new element of the crime but merely establishes the basis for initiating adjudication. Because there is no inherent constitutional right to be tried as a juvenile, the defendant must justify the transfer to the juvenile division.
At page 1153 because decision regarding which court should prosecute juvenile does not create a new element of the crime or have anything to do with a substantive adjudication, it is not unconstitutional for juvenile to retain burden of justifying transfer to juvenile court1 citing case
- State v. Buelow, 587 A.2d 948 (Vt. 1990).published (because decision regarding which court should prosecute juvenile does not create a new element of the crime or have anything to do with a substantive adjudication, it is not unconstitutional for juvenile to retain burde…)
v.
STATE of Florida
Appellant, a juvenile, charged as an adult with burglary of a dwelling, pleaded nolo contendere, reserving the right to appeal the denial of a motion to dismiss the information. We affirm.
Appellant’s contention that section 39.-04(2)(e)(4),[1] Florida Statutes (Supp.1978), is unconstitutional has already been determined contrary to his position. State v. Cain, 381 So.2d 1361 (Fla.1980). Appellant contends, however, that Cain did not address the particular area on which he relies, i. e., that the statute shifts the burden of proof to the child to show that he has not previously been found to have committed two delinquent acts, thus unconstitutionally shifting to him the burden of proof of an element of the crime.
No new element of the crime is created by the statute. The decision regarding which court should prosecute a juvenile has nothing to do with a substantive adjudication; rather, it is only the basis by which adjudication is initiated. State v. Cain, supra.
The statute permits the transfer of the prosecution to the juvenile division upon motion of the child, coupled with a showing that he has not “previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.” Section 39.04(2)(e)4, supra. Clearly, this involves a pre-trial proceeding, and does not involve the prosecution of the crime for which the appellant is now charged. Since there is no common law, inherent, or constitutional right to be tried as a juvenile, State v. Cain, supra, it is incumbent on the juvenile to justify the transfer. Carter v. State, 382 So.2d 871 (Fla.5th DCA 1980).
The trial court was correct in denying the motion to dismiss, and the judgment of conviction is
AFFIRMED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur.“With respect to any child who at the time of commission of the alleged offense was 16 or 17 years of age, [the State Attorney may] file an information when in his judgment and discretion the public interest requires that adult sanctions be considered or imposed. Upon motion of the child, the case shall be transferred for adjudicatory proceedings as a child pursuant to § 39.09(1) if it is shown by the child that he had not previously been found to have committed two delinquent acts, one of which involved an offense classified under Florida law as a felony.”