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Criminal Practice – Juvenile – Sentencing – Detention – Property Damage

In re J.B. (Lawyers Weekly No. 011-003-18, 12 pp.) (Ann Marie Calabria, J.) (Chris Dillon, J., concurring in part & dissenting in part) Appealed from Mecklenburg County District Court (David Strickland, J.) N.C. App.

Holding: G.S. § 7B-2506(12), the statutory subsection mentioned on the outdated form order used by the trial court, allows confinement of not more than five days; accordingly, the trial court erred when it sentenced the juvenile to 10 days in the custody of the county sheriff. The trial court also erred when it failed to impose at least one of the dispositional alternatives found in G.S. § 7B-2506(13).

We affirm in part and remand for resentencing.

At trial, the juvenile failed to argue that the Charlotte-Mecklenburg Board of Education was not an entity capable of owning property; in fact, his counsel readily conceded the point. This argument is not properly before us.

Concurrence & Dissent

(Dillon, J.) With respect to the juvenile’s argument concerning the state’s failure to plead that the owner was an entity capable of owning property, I recognize that for purposes of an indictment, such a mistake could be raised for the first time on appeal. However, the owner’s capability of owning property does not need have been pleaded in a juvenile petition with the same specificity as in an indictment.

Since the juvenile was a level 2 offender, G.S. § 7B-2506(20) allows him to be confined for up to 14 days. The trial court’s “error” was in using a form which cites to subsection (12) but not subsection (20).

I would affirm the trial court’s order but remand for correction of the clerical error by deleting the reference to subsection (12) on the pre-printed form.

 


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