Opinion
No. 77-170
Decided September 1, 1977. Rehearing denied October 13, 1977. Certiorari granted December 27, 1977.
Upon finding by "convincing" evidence that juvenile on probation committed acts which would constitute third degree assault and conspiracy, trial court revoked respondent's probation. Respondent appealed.
Reversed
1. JUVENILE DELINQUENCY — Revocation of Probation — Commission of Criminal Offense — Burden — Beyond Reasonable Doubt. In juvenile proceedings, like adult proceedings, where an alleged violation of probation is a criminal offense, the prosecution has the burden of showing the violation beyond a reasonable doubt.
2. Probation — Revocation or Modification — Imposition of Fine — Within Alternative Dispositions — Not — Abuse of Discretion. If, in proceedings for modification or revocation of probation of a juvenile, the correct standard of proof is satisfied, the imposition of a fine is within the range of alternative dispositions available to the court, and thus a sentence including such a fine constitutes neither an abuse of the trial court's discretion nor a punishment for a later offense.
Appeal from the Juvenile Court of the City and County of Denver, Honorable Orrelle R. Weeks, Judge.
J. D. MacFarlane, Attorney General, David A. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David K. Rees, Assistant Attorney General, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Nancy E. Rice, Deputy State Public Defender, for child-appellant.
In 1975, the juvenile respondent, M.B., was sentenced to a period of probation not to exceed two years. This appeal involves a petition for revocation or modification of probation filed against respondent, as a consequence of which his previous sentence was modified.
Following trial, the court found by "convincing" evidence that respondent had committed acts which, if done by an adult, would have constituted the crimes of third degree assault and conspiracy to commit that offense. Respondent contends, and we agree, that the trial court erred in failing to apply a standard of proof "beyond a reasonable doubt."
I.
[1] With respect to an adult probationer, it is settled that where an alleged violation of a condition of probation is a criminal offense, the prosecution has the burden of showing the violation beyond a reasonable doubt. Section 16-11-206(3), C.R.S. 1973; People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974). The question presented here is whether the same standard should obtain in juvenile revocation proceedings. Concluding that our legislature intended no lesser degree of protection be afforded a juvenile probationer than that extended an adult, we deem the higher standard of proof applicable in both instances.
The People assert that such a holding is contrary to previous opinions of this court. See People in the Interest of R.J.A., 38 Colo. App. 346, 556 P.2d 491 (1976); People in the Interest of D.S., 31 Colo. App. 300, 502 P.2d 95 (1972); People in the Interest of B.L.M., 31 Colo. App. 106, 500 P.2d 146 (1972). The contention is not persuasive.
The latter two decisions were rendered prior to the effective date of § 16-11-206(3), C.R.S. 1973. See Colo. Sess. Laws 1972, Ch. 44. In addition, neither the fact that the proceeding in this case is not by technical definition an adjudication, People in Interest of B.L.M., supra, nor the fact that § 16-11-206(3), C.R.S. 1973, does not by its specific terms apply to proceedings under the Children's Code, cf. People in the Interest of D.S., supra, is dispositive of this particular question. Finally, this is not a situation where the revocation is based upon merely a violation of a term of probation, as in People in the Interest of R.J.A., supra, rather than on the commission of a crime. The precise issue thus remains undecided in this jurisdiction.
The theoretical foundation underlying our system of juvenile law requires the differing treatment of juvenile and adult offenders. In re the Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and see, e.g., 19-1-101 et seq., C.R.S. 1973. However, the beneficial purposes of that system cannot be effectuated in such a manner as to deprive the juvenile of certain procedural rights. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, supra; People v. Interest of P.L.V., 176 Colo. 342, 490 P.2d 685 (1971); People in the Interest of B.M.C., 32 Colo. App. 79, 506 P.2d 409 (1973). Accordingly, the flexibility and efficiency of the juvenile courts should be preserved to the extent possible consistent with principles of due process. Cf. In re Winship, supra (C.J. Burger, dissenting).
In light of the foregoing, we determine that our legislature's solicitude for an adult probationer's due process rights as manifested in § 16-11-206(3), C.R.S. 1973, should by parity of reasoning be accorded the juvenile probationer. Our result is supported by pertinent decisions from other jurisdictions. See In re Z, 10 Cal. App. 3d 565, 89 Cal. Rptr. 246 (1970); In re Taylor, 268 A.2d 522 (D.C.App. 1970), and is compatible with analogous decisions in this state. See People v. Interest of P.L.V., supra; People in the Interest of B.M.C., supra. Further, we perceive no undue disruption of the juvenile system as a consequence of our interpretation of the relevant statutory provisions. Cf. § 19-3-117, C.R.S. 1973. See also People v. Roberson, 22 Mich. App. 664, 177 N.W.2d 712 (1970).
II.
Respondent further contends that the trial court erred in imposing a fine against him following its determination of guilt. For the guidance of the court on remand, we address this issue.
[2] The court's sentence with regard to the petition constituted a punishment grounded upon the initial adjudication rather than upon the present offense. People in the Interest of D.S., supra. And, when a violation of probation has been established, the court is permitted a range of alternative dispositions, including any delineated in the respective sections of the Code. Section 19-3-117(3)(d)(II), C.R.S. 1973. The fine imposed here was within the limitations set forth in § 19-3-113(1)(f), C.R.S. 1973. Consequently, if the correct standard of proof had been satisfied, the court's sentence would have constituted neither an abuse of its discretion nor a punishment for the later offense.
The judgment is reversed and the cause remanded for the trial court's consideration of the evidence utilizing a standard of proof beyond a reasonable doubt and for any necessary further proceedings.
JUDGE ENOCH and JUDGE STERNBERG concur.