In the Matter of the Welfare of: K.G.K., Child. C8-97-1275, Court of Appeals Unpublished, February 10, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-1275

In the Matter of the Welfare of:

K.G.K., Child.

Filed February 10, 1998

Reversed

Crippen, Judge

Washington County District Court

File No. 8211442Y

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Richard M. Arney, Washington County Attorney, Gregory J. Tavernier, Assistant County Attorney, Washington County Government Center, 14900 61^st Street North, Stillwater, MN 55082 (for appellant)

Gregory J. Schmidt, Gregory J. Schmidt Law Office, P.A., Suite 510, Spruce Tree Centre, 1600 University Avenue, St. Paul, MN 55104 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Forsberg, Judge.^** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant, the Washington County Attorney, designated two charges against respondent K.G.K. as an extended jurisdiction juvenile (EJJ) prosecution, a unilateral decision permitted by statute.[1] Sanctioning appellant for an untimely first appearance, the trial court dismissed the EJJ designation with prejudice. We reverse.

FACTS

The juvenile petition, containing the prosecutor's designation of two offenses for EJJ proceedings, was filed on May 13, 1997. On the same day, the court administrator issued notice that an initial juvenile hearing would be conducted on June 17, 35 days later. On July 11, after respondent contended that the initial hearing was not timely, the trial court dismissed the EJJ charges, expressly with prejudice as to the designation, citing (a) Minn. R. Juv. P. 19.04, subd. 1(B) (demanding EJJ hearing within 30 days after filing of a petition containing the designation), and (b) Minn. R. Juv. P. 19.04. subd. 3(A) (demanding a probable cause hearing within 14 days after filing of a petition containing the designation).

D E C I S I O N

We first observe that the facts here do not present an issue regarding the timeliness of an EJJ hearing on the merits of a prosecutor's motion for that designation. See n. 1. The prosecutor's EJJ designation, which lawfully occurred in this case, is a final determination that an extended jurisdiction juvenile prosecution will occur. Absent a lawful sanction, the trial court had no discretion in these circumstances to prevent or eliminate the designation.

It is undisputed that the court administrator's scheduling in this case ran afoul of two time demands of the juvenile rules. Unless the time is extended for good cause, the EJJ statute demands a probable cause hearing within 14 days after the petition containing a designation. The initial appearance after a prosecutor's designation must occur within at least 30 days, or 60 days if the period is extended for good cause.[2]

As in earlier cases, we are presented here with the question of whether the trial courts or this court can fashion a sanction for violations of time demands in the juvenile rules. We need go no further here than in the last appeal on the same question, when we decided that no such sanction was appropriate in the absence of circumstances where the delay in question has constitutional importance. In re Welfare of J.J.H., 446 N.W.2d 680, 681-82 (Minn. App. 1989), review denied (Minn. Dec. 8, 1989). As in J.J.H., we encounter here at least two rules that demand certain time limits but state no sanctions for untimely action, and no pertinent sanction is provided by statute or under the constitution.

It was error in this case to dismiss with prejudice lawful extended jurisdiction juvenile proceedings.

Reversed.

[1] A prosecutor's designation is permitted for a child who is at least 16 years old at the time of an alleged offense that is one "for which the sentencing guidelines and applicable statutes presume a commitment to prison." Minn. Stat. § 260.126, subd. 1(2) (1996). It is undisputed that respondent is charged with presumptive commitment offenses that were allegedly committed when he was age 17. Upon motion, the juvenile court may designate other juvenile charges for extended jurisdiction juvenile prosecution. Minn. Stat. § 260.126, subd. 1(3) (1996).

[2] Arguably, the 30-day requirement, demanded for an "extended jurisdiction juvenile hearing," does not govern the initial appearance after the prosecutor has lawfully designated a charge for EJJ prosecution. The rule makes it evident that the EJJ "hearing" is one conducted for a court determination on the merits of a prosecutor's motion for the designation, where a prosecutorial designation could not occur because of the age of the child at the time of the offense or the less serious nature of the charge. See Minn. R. Juv. P. 19.04. Were we to interpret the rule in this fashion, which need not be decided in this case, the 35 day scheduling would conflict with another time demand of the rules. See Minn. R. Juv. P. 7.03, subd. 2 (demanding an arraignment within 20 days after service of the petition on the child). The petition in this case was served by mail on the day it was filed.