ALABAMA RULES OF JUVENILE PROCEDURE

Rule 28. 

Appeals.

(A) Direct appeals to appellate courts.

(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.

(2) If the appeal provided in this subsection is taken from a final order, judgment, or decree in a case or proceeding arising out of the jurisdiction of the juvenile court over a child, as that term is defined in Ala. Code 1975, § 12-15-102(3), the appropriate appellate court for purposes of the appeal shall be (a) the Court of Criminal Appeals in proceedings in which a child is adjudicated delinquent and proceedings in which a motion seeking an order to transfer a child to the adult court for criminal prosecution is either granted or denied, and (b) the Court of Civil Appeals in any other case or proceeding.

(B) Appeals to circuit court. Appeals from final orders, judgments, or decrees in all other cases, including those cases in which there is not an adequate record as provided in subsection (A) of this rule, shall be to the circuit court for trial de novo and the case shall be heard by a different circuit judge if heard by a circuit judge in the first instance in the juvenile court. The subject of an appeal to the circuit court for trial de novo on delinquency cases or cases involving a child in need of supervision, as that term is defined in Ala. Code 1975, § 12-15-102(4), shall be on the same charge tried in juvenile court; however, no provision of this rule shall be construed to confer the right to a jury trial for a juvenile adjudication appealed to the circuit court. The same provisions of law or rule regarding confidentiality of records and proceedings in the juvenile court shall be applicable on appeal de novo to the circuit court.

(C) Notice of appeal. Written notice of appeal shall be filed within 14 days of the date of the entry of the order or judgment appealed from, whether the appeal is to an appellate court or to the circuit court for trial de novo.

(D) Transfer of appeal. An appellate court or circuit court may transfer an appeal that it determines should have been transferred to or brought in another court to that other court.

(E) Stay of order. Except as otherwise provided by these Rules or by statute, an appeal pursuant to this rule shall not stay enforcement of the order, judgment, or decree appealed from, but the court to which the appeal is taken may order otherwise, if suitable provision is made for the care and custody of the child. If the order, judgment, or decree appealed from grants the custody of a child to, or withholds it from, one or more of the parties to the appeal, the appeal shall be heard at the earliest time practicable.

(F) Stay of circuit court proceedings pending appeal of transfer order. The filing of an appeal from an order transferring a child to the adult court for criminal prosecution shall stay the proceedings in the circuit court.

[Amended eff. 3-1-82; Amended eff 11-15-85; Amended eff. 7-1-98; Amended eff. 8-1-2000; Amended eff. 1-5-2006; Amended eff. 9-18-2006; Amended eff. 6-22-2007; Amended eff. 1-9-2009.]

Comment to Amendment

Effective November 15, 1985

This rule is an attempt to reconcile the provisions of §§ 12-15-120 and 12-11-30(3), Code of Alabama 1975, which provide respectively, that appeals from the juvenile court shall lie to the circuit court for trial de novo and that the circuit courts shall exercise appellate jurisdiction over district court juvenile cases, with the provisions of § 12-12-72, supra, which provide that appeals shall lie directly from the district court to the appropriate appellate court in certain instances. Thus, subsection (A) of this rule provides for direct appeals in the same instances in which they are provided under § 12-12-72, supra, while subsection (B) of the rule retains and provides for the de novo appeal to the circuit court in any other case.

The direct appeal to the appropriate appellate court shall be taken whether a district or circuit judge sat as the judge of the juvenile court and should be viewed as the preferred route of all juvenile court appeals. Therefore, it is intended that a record which can be certified as adequate will be made as provided in Rule 20, Alabama Rules of Juvenile Procedure. Additionally, nothing in the language of subsection (A) should be construed as conferring the right to a jury trial upon any party in a juvenile court proceeding, including a child, who is not otherwise entitled to such right.

The second paragraph of subsection (A) further defines the phrase "appropriate appellate court" in regard to direct appeals taken from orders in cases arising out of the juvenile courts' jurisdiction over children. Direct appeals from all but two types of proceedings within this category shall lie to the court of civil appeals.

Appeals in juvenile cases must, of necessity, be given priority over other appeals pending before either the appellate courts or the circuit courts and the transfer provision of subsection (D) should be expeditiously followed by the courts in those cases to which they may properly be applied.

Rule 3, Alabama Rules of Appellate Procedure, requires the trial court clerk to notify the court reporter of the filing of a notice of appeal. As a practical matter, the appellant or clerk must notify the juvenile court judge, whose responsibility with respect to the record is enlarged by this rule and Rule 20, Alabama Rules of Juvenile Procedure. If an adequate record will not be available, the juvenile judge should provide written notification of the same to authorize the appellant or clerk to direct the appeal to the circuit court in accordance with subsection (B) of this rule.

Comment to Amendment

Effective August 1, 2000

Rule 28(F) was intended to resolve the problem raised by the case of Ex parte A.D.R., 690 So.2d 1208 (Ala.1996), in which a juvenile, transferred to circuit court for trial as an adult, alleged that his counsel in the transfer hearing had been ineffective. He made this claim after the time for filing an appeal from the transfer order had expired. The Supreme Court, in that case, allowed an out-of-time appeal from the transfer order. However, before the Supreme Court issued its opinion, A.D.R. had been tried on one count of capital murder, convicted, and sentenced to life imprisonment. On the date the Supreme Court issued its opinion, the appeal from that conviction was pending in the Court of Criminal Appeals. To avoid this problem, paragraph (F) was added, which stays all proceedings in the circuit court while the appeal of the transfer order is pending.

Comment to Amendment to Rule 28

Effective June 22, 2007

Rule 28(C) was amended to clarify that a written notice of appeal must be filed within 14 days of the date of the entry of order or judgment appealed from to be consistent with the amendment of Rule 1(A), which added the last sentence to provide that "[f]or all matters in the juvenile court, the phrase 'entry of order or judgment' shall have the same meaning as prescribed in Rule 58(c) of the Alabama Rules of Civil Procedure."

Comment to Amendment to Rule 28

Effective January 9, 2009

The Code sections referenced in subsections (A)(2) and (B) of this rule were updated to make the citations consistent with the Alabama Juvenile Justice Act of 2008.

Note from the reporter of decisions: The order adopting Rule 28(F) and the comment, effective August 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from 753 So.2d.

Note from the reporter of decisions: The order amending Rule 1(B), Rule 8, and Rule 28, effective January 5, 2006, is published in that volume of Alabama Reporter that contains Alabama cases from 917 So.2d.

Note from the reporter of decisions: The order amending Rule 8, Rule 25(D), and Rule 28, effective September 18, 2006, is published in that volume of Alabama Reporter that contains Alabama cases from 939 So.2d.

Note from the reporter of decisions: The order amending effective June 22, 2007, Rule 1, Rule 20, and Rule 28(C), and adopting effective June 22, 2007, Rule 13(E); the Comment to Rule 13(E) Adopted Effective June 22, 2007; the Comment to Amendment of Rule 1 Effective June 22, 2007; the Comment to Amendment of Rule 20 Effective June 22, 2007; and the Comment to Amendment of Rule 28(C) Effective June 22, 2007, is published in that volume of Alabama Reporter that contains Alabama cases from 957 So.2d.

Note from the reporter of decisions: The order amending effective January 9, 2009, Rule 1(A), Rule 8, Rule 13, Rule 20(A), Rule 24, Rule 28, and Rule 31, and adopting effective January 9, 2009, the Comment to Amendment to Rule 1(A) Effective January 9, 2009; the Comment to Amendment to Rule 8 Effective January 9, 2009; the Comment to Rescission of Rule 11 Effective January 9, 2009; the Comment to Amendment to Rule 13 Effective January 9, 2009; the Comment to Rescission of Rule 16 Effective January 9, 2009; the Comment to Amendment to Rule 20(A) Effective January 9, 2009; the Comment to Amendment to Rule 24 Effective January 9, 2009; the Comment to Amendment to Rule 28 Effective January 9, 2009; the Comment to Amendment to Rule 31 Effective January 9, 2009; and the Comment to Rescission of Rule 32 Effective January 9, 2009, is published in that volume of Alabama Reporter that contains Alabama cases from 996 So. 2d.