This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1987

 

In the Matter of the Welfare of: V. S. V.

 

Filed June 28, 2005

Reversed and remanded

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. 234244

 

 

 

James M. Ventura, 125 West Lake Street, Suite 208, Wayzata, MN 55391; and

 

Richard Osborne, Post Office Box 581723, Minneapolis, MN 55458-1723 (for appellant V. S. V.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and,

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant challenges the juvenile court’s order designating him an extended-jurisdiction juvenile, arguing, among other things, that the designation should be vacated because the hearing on the matter was not timely held.  Because the juvenile court violated the statutory deadlines for the designation hearing, we reverse and remand without prejudice. 

FACTS

On August 11, 2003, 17-year-old appellant V.S.V arranged to meet undercover police officers to buy some marijuana from them.  The officers told V.S.V. that they would be in a white Pontiac at a particular location, and V.S.V. told the officers that he would be in a white Suburban.  After V.S.V. and the officers arrived at the specified location, V.S.V. got out of the passenger side of the Suburban and got into the Pontiac.  He examined the marijuana and paid the officers $3,600 for it.  He then returned to the Suburban with the marijuana, and the driver drove off.  Police later stopped the Suburban and interviewed the driver, who stated that he had taken V.S.V. “to the bank to withdraw money to buy some weed.”  The marijuana, found on the passenger seat of the Suburban, weighed in excess of 48.5 grams.  Just over a month later, on September 24, 2003, V.S.V. turned 18.

On April 1, 2004, the state filed a petition, alleging V.S.V. to be delinquent on one count each of fifth-degree controlled-substance crime (possession) and fifth-degree controlled-substance crime (sale).  On May 3, 2004, the state filed a motion for an extended-jurisdiction juvenile (EJJ) designation.  The juvenile court made a determination of probable cause and ordered EJJ studies from probation and psychological services.

The designation hearing was initially scheduled for June 14, 2004, but was continued until August 6, 2004, apparently because V.S.V.’s attorney was late for the June 14 appearance.  The hearing eventually took place on August 6, August 26, and September 14, 2004.  On September 20, 2004, the juvenile court designated V.S.V. an extended-jurisdiction juvenile.  Four days later, V.S.V. turned 19. 

D E C I S I O N

A juvenile court may designate a proceeding an EJJ prosecution if “(1) an adult is alleged to have committed an offense before the adult’s 18th birthday; and (2) a petition is filed . . . [within the statute of limitations] and before the adult’s 21st birthday.”  Minn. Stat. § 260B.193, subd. 5(c) (2004).  In an EJJ prosecution, a juvenile may receive an adult criminal sentence as well as a juvenile disposition.  In re Welfare of D.M.D., 607 N.W.2d 432, 434 (Minn. 2000).  “The adult sentence is stayed on the condition that the juvenile does not violate the terms of the disposition or commit a new offense.”  Id.  An EJJ designation extends the juvenile court’s jurisdiction until the person reaches age 21.  Id.  A hearing on the state’s request for an EJJ designation, “must be held within 30 days of the filing of the request for designation, unless good cause is shown by the prosecution or the child as to why the hearing should not be held within this period in which case the hearing shall be held within 90 days of the filing of the request.”  Minn. Stat. § 260B.130, subd. 2 (2004). 

V.S.V. cites In re Welfare of C.L.S. for the proposition that “the statutory time limit in [Minn. Stat. § 260B.130, subd. 2] is stated in mandatory terms” and “must be adhered to by the trial court.”  558 N.W.2d 12, 13-14 (Minn. App. 1997), overruled on other grounds by In re Welfare of D.M.D., 607 N.W.2d 432, 437 (Minn. 2000). 

In C.L.S., the juvenile committed a felony in August 1994, when he was 17 years old.  Id. at 13.  The state filed a delinquency petition and an EJJ motion on October 9, 1995.  Id.  The hearing was initially scheduled for November 1, 1995, but because the juvenile failed to appear, the juvenile court continued the hearing until a later date but within 60 days after the filing of the county’s EJJ motion.  Id.  On the basis of reports that the juvenile was not cooperating with the EJJ study, the juvenile court again continued the hearing, this time until January 31, 1996, more than 90 days after the filing of the state’s motion.  Id. 

In C.L.S., we stated that the statutory deadlines with respect to a designation hearing are “absolute.”  558 N.W.2d at 14.  But we also noted that, at the time of his appeal, the juvenile had not yet turned 21 and held that

[i]f a new petition is filed in this case before appellant reaches age 21, the juvenile court has continuing jurisdiction in the absence of a showing that delay has been purposefully caused to gain unfair advantage.  Because jurisdiction of the juvenile court for an EJJ certification in this case has not yet expired under current statutory law and the legislature has seen fit to state a mandatory time rule but to withhold statement of a sanction for untimely proceedings, we reverse and vacate the trial court's EJJ designation without prejudice.

 

Id. at 14.        

The facts of this case are substantially similar to those in C.L.S.  V.S.V. allegedly committed a felony in August 2003, when he was 17 years old.  The state filed a delinquency petition on April 1, 2004, and an EJJ motion on May 3, 2004.  The hearing was originally scheduled for June 14, 2004, more than 30 days after the filing of the county’s motion.  Apparently, V.S.V.’s attorney was late for the June 14 appearance, and the juvenile court continued the hearing until August 6, 2004, more than 90 days after the filing of the state’s motion. 

The juvenile court failed to comply with both the 30-day and 90-day mandatory time rules under Minn. Stat. § 260B.130, subd. 2.  And as of the filing of this decision, V.S.V. is 19 years old.  Therefore, as in C.L.S., “because jurisdiction of the juvenile court for an EJJ certification . . . has not yet expired,” we reverse and remand the juvenile court's EJJ designation without prejudice to the filing of a new petition.  C.L.S., 558 N.W.2d at 14. 

V.S.V. also argues that the state intentionally delayed the proceedings to gain an unfair advantage and that the evidence does not support the juvenile court’s EJJ designation.  But because we reverse and remand without prejudice to the filing of a new petition, these issues are no longer relevant to our review.

            Reversed and remanded.