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M.W.B. v. STATE5/24/1996
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(f), 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 determinating 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 travelle
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