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Z.T. v. State

Court of Appeals of Arkansas, Division II

April 29, 2015

Z.T. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO. 60CR-13-3443] HONORABLE BARRY SIMS, JUDGE.

Willard Proctor, Jr., P.A., Willard Proctor, Jr., for appellant.

Leslie Rutledge, Att'y Gen., Rebecca B. Kane, Ass't Att'y Gen., for appellee.

KENNETH S. HIXSON, Judge.

On October 21, 2013, appellant Z.T. was charged in the criminal division of circuit court with aggravated robbery and theft of property. The information alleged that these crimes were committed on September 19, 2013, which was three days prior to Z.T.'s eighteenth birthday.

On March 13, 2014, Z.T. filed a motion to transfer the case to the juvenile division of circuit court. After a juvenile-transfer hearing held on August 25, 2014, the trial court announced that Z.T.'s transfer motion was denied. On September 15, 2014, Z.T. filed a renewed motion to transfer or in the alternative for a written order detailing the reasons for denial. The trial court entered an order on September 16, 2014, denying in writing Z.T.'s motion to transfer and making written findings in support of its decision.

Z.T. now appeals from the denial of his motion to transfer to juvenile court. Z.T. first argues that the trial court lacked jurisdiction over the case because it failed to hold a hearing on the motion within ninety days as required by the Arkansas Juvenile Code. Z.T. also argues that the trial court's denial of his transfer motion was clearly erroneous. We reject Z.T.'s first argument, but we remand for reconsideration of the transfer motion.

A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1) (Repl. 2009). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. Miller v. State, 2015 Ark.App. 117, __ S.W.3d __. The trial court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Miller, supra. We will not reverse a trial court's determination of whether to transfer a case unless that decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.

At a juvenile-transfer hearing the trial court is required to consider all of the following factors:

(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history ...

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