Opinion
No. 74-600 No. 74-601
Decided December 4, 1975. Rehearing denied December 26, 1975. Certiorari granted March 8, 1976.
Juvenile court granted probation to certain delinquent children with the condition that they serve weekend jail terms for a specified number of consecutive weeks, and the children appealed.
Sentences Set Aside
1. JUVENILE DELINQUENCY — Disposition — Probation Conditions — Weekend Jail Terms — No Authority — Children's Code. Juvenile court was without authority to grant probation to delinquent child with the condition that said minor child serve a jail sentence on consecutive weekends for a specified number of weeks, there being no provision for such probationary conditions under the Colorado Children's Code, and it being contrary to the implicit provisions thereof.
Appeal from the District Court of the County of Pueblo, Honorable Richard D. Robb, Judge.
J. E. Losavio, Jr., District Attorney, Charles Malouff, Deputy District Attorney, for petitioner-appellee.
Albert G. Davis, Gary B. Wiggs, for respondent-appellant.
Division II.
These cases have been consolidated on appeal to review the single question whether the juvenile court may grant probation to a delinquent child under the age of 18 years and impose as a condition thereof the requirement that the child serve a jail sentence on consecutive weekends for a given number of weeks. We hold that it may not.
It is conceded that there is no express authority in the Colorado Children's Code for the imposition of a jail sentence on a delinquent child under the age of 18 years, either as part of a final disposition or as a condition of probation. Moreover, while § 16-11-202, C.R.S. 1973, in the Colorado Code of Criminal Procedure authorizes imposition of such a sentence upon adult offenders, the Code of Criminal Procedure is not applicable to proceedings under the Children's Code, except as specifically set forth therein. See § 16-1-102, C.R.S. 1973.
In the cases before us, however, the trial court imposed jail sentences as one of the terms of probation pursuant to the provisions of § 16-11-202, C.R.S. 1973, perceiving its authority to apply these provisions in a juvenile case as having been derived from § 16-11-210, C.R.S. 1973, which states:
"Any county court or juvenile court in this state may exercise the powers provided for and granted to district courts in this part 2 [of Title 16, Article 11, entitled Probation]. . ."
Thus, § 16-11-210 appears to authorize the imposition, under § 16-11-202, of a jail sentence as one of the conditions of probation in juvenile court proceedings. Thus, the precise question presented here is whether § 16-11-210, C.R.S. 1973, permits the imposition of such a probationary condition where the delinquent child is under the age of 18 years.
In our view, the plain intendment of the Colorado Children's Code militates against the application of § 16-11-202 via § 16-11-210 to a delinquent child under the age of 18 years. In In re People in the Interest of B.M.C., 32 Colo. App. 79, 506 P.2d 409, we said:
"One of the underlying purposes of the [Children's] Code is to create a distinction between adults and children who violate the law. A child who violates the law may be adjudicated a delinquent child and thus become subject to correction by the state; however, he is not subject to the specific penalties imposed upon adult offenders."
The only provisions to be found in the Colorado Children's Code authorizing the sentencing of delinquent children to a county jail appear in §§ 19-3-113 and 19-3-117, C.R.S. 1973. The former section provides:
"The court may sentence a person who is eighteen years of age or over on the date of a dispositional hearing to the county jail for a period not to exceed an aggregate total of one hundred eighty days, which may be served consecutively or in intervals, if he is adjudicated delinquent for an act committed prior to his eighteenth birthday."
Section 19-3-117(3)(e) states that:
"If the court revokes the probation of a person over eighteen years of age, in addition to other action permitted by this article, the court may sentence him to the county jail for a period not to exceed three months during which he may be released during the day for school attendance, job training, or employment, as ordered by the court."
Implicit in each of these statutory sections is the converse, that is, that the trial court may not impose a county jail sentence on a delinquent child under the age if 18 years. Further, the dispositional authority granted to the juvenile court by the remaining sections of § 19-3-113 and by the provisions of § 19-3-112 evidence the legislative intent that delinquent children under the age of 18 be incarcerated through commitment to the department of institutions, or otherwise detained in a facility especially suited to the care of children. See particularly, § 19-3-112(1)(c), (d), (g) and § 19-3-113(1)(a), (b).
[1] "Probation is purely a statutory creation, and, as such, the terms of probation must be derived from the applicable statute." People v. Ledford, 173 Colo. 194, 477 P.2d 374. Hence, absent explicit provision in the applicable statutes for imposition of a jail sentence on a delinquent child under the age of 18 years, as a condition of probation, such a condition may not be judicially imposed. See People v. Ledford, supra; and Logan v. People, 138 Colo. 304, 332 P.2d 897.
There being no such authorization in either the Colorado Children's Code or in the Colorado Code of Criminal Procedure, the sentences of the trial court in the cases before us are set aside and each cause is remanded to the trial court for proceedings not inconsistent with the views expressed herein.
JUDGE SMITH concurs.
JUDGE RULAND dissents.