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01/13/95 D. L. S. v. STATE

January 13, 1995

D. L. S.
v.
STATE



Appeal from Covington Circuit Court. (CC-93-241). Frank McGuire, TRIAL JUDGE.

Rehearing Denied March 3, 1995. Released for Publication August 12, 1995.

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, D. L. S., a minor, admitted the allegations of a petition charging sodomy in the first degree and was adJudged a delinquent in juvenile court. The appellant appealed to the circuit court for a trial de novo, and the circuit court transferred the appeal to this Court.

The appellant argues that the record of the proceedings in juvenile court are inadequate to support an appeal to this Court and that this case should be remanded to the circuit court for a trial de novo. Rule 28(A)(1), Ala. R. Juv. P., states:

"(1)Appeals from final orders, judgments or decrees of the juvenile court shall be to the appropriate appellate court, subject to the Alabama Rules of Appellate Procedure, if:

"(a) A record certified as adequate by the juvenile court Judge or a stipulation of facts is available and the right to a jury trial has been exercised or waived by all parties entitled thereto; or,

"(b) The parties stipulate that only questions of law are involved and the juvenile court certifies the questions."

Following the proceedings in juvenile court, the juvenile court Judge entered an order committing the appellant to the custody of Department of Youth Services. The Judge later amended his order, ex mero motu, to further detail the proceedings. We note that the record contained no transcript of the court proceeding. The juvenile court Judge certified the amended order as "an adequate record of the exact proceedings that took place at the hearing held in this cause on November 5, 1993." (C. 6.) This Court then remanded the case to the juvenile court for an adequate transcript or a stipulation of the facts or a stipulation by the parties that the appeal involves only questions of law. On return, the juvenile court, citing Rule 20, Ala. R. Juv. P., stated that because no testimony was taken in the juvenile proceeding, no transcript was required to certify the record as adequate for the purposes of direct appeal to this Court. Rule 20(A), Ala. R. Juv. P., provides:

"(A)A record of all testimony shall be kept by stenographic reporting, by mechanical or electronic device, or by some combination thereof. Exhibits and other tangible evidence shall be preserved by the party offering the exhibits or the evidence, unless otherwise directed by the court. The record shall be preserved until the time for taking an appeal has expired."

The Comment to this rule states, in part:

"This rule provides for the use of electronic devices for recording testimony in any hearings in the juvenile court. This rule should facilitate appeals in that a substantially complete record may be provided in each case.

"It is expected that a record made in juvenile court by any of the methods prescribed in subsection (A) of this rule will be adequate and as substantially complete as a ...


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