Opinion
7 Div. 350.
March 12, 1985. Rehearing Denied April 9, 1985.
Appeal from the Juvenile Court, DeKalb County, Robert G. Wilson, District Judge.
Stephen P. Bussman, Fort Payne, for appellant.
Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
The appellant, Paula Vaughn, appeals from an adjudication of delinquency. Vaughn was found to have committed the offense of assault in the first degree as charged in the petition. As a result of the juvenile court's adjudging her to be a delinquent child, Vaughn was placed in the care and control of the Alabama Department of Youth Services.
On appeal, Vaughn raises the sole contention that a material and fatal variance existed between the petition's allegations and the proof. Although we recognize the principles of Scott v. State, 374 So.2d 316 (Ala. 1979), as cited in the exemplary brief of appellant's counsel, we find that this case is different from Scott, in that in this case this issue is not before us, for the contention was not raised in the juvenile court. Even though the State failed to argue that the issue was not preserved for our review, we have thoroughly searched the record and find no objection to the sufficiency of the evidence or to a fatal variance. Appellate review is limited to matters on which rulings are invoked in the juvenile court. Burttram v. State, 448 So.2d 497, 499 (Ala.Cr.App. 1984). Accordingly, the judgment of the juvenile court is affirmed.
AFFIRMED.
TYSON and TAYLOR, JJ., concur.
BOWEN, P.J., and McMILLAN, J., dissent.
I respectfully but strenuously dissent from the majority opinion. The defendant stands adjudicated a delinquent based on a finding that she is guilty of assault in the first degree. The record shows that the defendant is not guilty of that offense because there was no serious physical injury to the victim. This deficiency is admitted by the Attorney General: "In the State's opinion, the victim's injuries were not sufficient to bring Appellant's actions within the orbit of Assault in the First Degree." Appellee's Brief, p. 3. The majority implicitly recognizes this with its reference to Scott v. State, 374 So.2d 316 (Ala. 1979).
It is fundamentally unfair and constitutionally offensive to allow this adjudication to remain as it now stands. The adjudication of delinquency is based upon a clearly erroneous finding that the defendant is guilty of an offense. To refuse to recognize that fact is judicial blindness.
As a practical matter, we will probably have a second chance to review this same issue when a post-conviction extraordinary writ is sought on the basis of incompetence of counsel.
The record shows that, even though the defendant is not guilty of first degree assault, she is guilty of second degree assault for the same reasons as those in Davis v. State, 467 So.2d 265 (Ala.Cr.App. 1985). In this case, we should do what we did in Davis. The judge's finding that the defendant is guilty of Assault I should be reversed and set aside. This cause should be remanded with directions that the defendant be adjudged guilty of and sentenced for the offense of Assault II. This procedure was sanctioned in Ex parte Edwards, 452 So.2d 508 (Ala. 1984).