concurring.
Appellant’s emphasis on appeal is based principally upon two theories. He first argues that T.C.A. § 37-234 is unconstitutional because it is too broad and vague. This same argument was made in State ex rel. Davis v. Strickland (Tenn.1975), and our Supreme Court in upholding the constitutionality of the statute stated: “ . the language of T.C.A. § 37-234 is constitutionally adequate in that it establishes criteria upon which the Juvenile Judge is to base his decision on whether to transfer the juvenile to the Criminal Court, and it adequately informs the parties as to what is to be considered by the Judge.”
Appellant’s other theory is that the trial court in considering the criteria of whether the child is amenable to treatment or rehabilitation as a juvenile erred in concluding that there were reasonable grounds to believe that the defendant was not amenable to rehabilitation. Appellant avers that the proof is overwhelmingly to the contrary. Appellant further contends that the State’s proof on this issue was silent. The appellant apparently concedes for the purposes of this appeal, that there are reasonable grounds to believe that the defendant committed the alleged delinquent act and that he is not mentally retarded or mentally ill.
A review of the evidence fails to uncover any testimony by any witness that the defendant is not amenable to rehabilitation. On the contrary, Dr. Jerry E. Gilliland, a psychologist, and Mr. Barrette, a Youth Guidance Counselor, both testified as to the defendant being amenable to rehabilitation.
Dr. Gilliland found the defendant to be of average intelligence with no personality disorder and with no mental problems except for remorse and feelings of guilt. He found nothing to indicate that the defendant would be dangerous to the community, *226for he found no violent tendencies. He further testified that the defendant needs counselling and needs to complete a program of vocational technical school and learn a trade. He stated that such a program is available at the Taft Youth Center, however he was thinking of something even more than that, long term training.
The record reflects that the defendant’s father asked the Juvenile Judge to send his son to Tennessee Preparatory School because he was staying out at night, was hard to control, and was running around with Benny Wallace. The defendant testified that Benny Wallace came to visit him one day at T.P.S. and he told Benny “I was wanting to come back, that they could hide me out.” When Benny returned to T.P.S. the second time the defendant left with him. After hiding out for several weeks the delinquent act was committed by the defendant and Benny Wallace.
Judge Grady Barker, the Juvenile Court Judge, testified that he would have been willing to send the boy to a juvenile institution rather than sending him to the penitentiary if he had the authority to set the time, however, he felt the boy should be kept longer for rehabilitation. The Circuit Judge also indicated that under the proof the only, available institution was Taft Youth Center and the proof indicated that this young man needed a period of longer treatment than was available there.
Thus both the Juvenile and Circuit Court Judges apparently based their decision not on the fact that the defendant was not amenable to rehabilitation but based their decision on the fact that the juvenile was not amenable to rehabilitation in our state institutions due to the length of time he would stay.
In Strickland our Supreme Court stated that:
The Court is only required to find that there are “reasonable grounds” upon which to base a finding that a juvenile is not amenable to rehabilitation. . In making a decision whether a juvenile is amenable to treatment or rehabilitation, the Juvenile Judge may consider many factors including . . . the type of facilities available, length of stay in these facilities, the seriousness of the alleged crime, and the attitude and demeanor of the juvenile, (emphasis added)
It should be noted that in the Strickland case and in this case T.C.A. § 37-234(a)(4)(ii) read as follows: “The child is not amenable to treatment or rehabilitation as a juvenile through available facilities.” (emphasis added). Effective May 28, 1975, the phrase “through available facilities” was deleted (Chapter 296 of the Tenn.Pub. Acts of 1975). The consequences of this amendment have not yet been interpreted by our courts. In Strickland the Court specifically considered the type of facilities available and the length of stay in the facilities. The trial judge in this case specifically considered the fact that the facilities available only provided short term rehabilitation programs and he felt the defendant needed longer treatments and therefore was not “amenable to the treatment or rehabilitation as a juvenile through available facilities.” Unquestionably the deleted phrase changes the statutory requirement. As stated earlier, none of the witnesses in this case indicated that the child was not amenable to rehabilitation, however there was sufficient evidence for the trial judge to find reasonable grounds to believe that the child was not amenable to rehabilitation through available facilities. This ground apparently will not exist in the future.
This is a sad commentary upon our system of justice and rehabilitation when a child is required to stand trial as an adult due to the crowded conditions and lack of facilities in our juvenile institutions.
As indicated above, the question before us is not whether we would have found the juvenile not amenable to rehabilitation, but whether there were “reasonable grounds” upon which the trial court could base a finding that the defendant is not amenable to rehabilitation through available facilities. The lower court obviously considered the fact that the defendant had been commit*227ted to T.P.S. and would not stay there, the fact that he associated with Benny Wallace, and the fact that he participated in the commission of a violent crime as “reasonable grounds” for determining that the period of juvenile rehabilitation was not sufficient. I therefore concur with Judge Shri-ver that the judgment below should be affirmed.
I share the same concerns that Judge Todd expressed in his separate concurring opinion, and that Dr. Gilliland expressed when he stated: “I think he’s very impressionable and if he goes to a penitentiary with adults I think that would have an unfavorable impression upon him.” Once a child is transferred to criminal court, any disposition imposed by that court is the same as if the child was an adult. Following transfer, no child shall be sentenced to a state correctional school for juvenile delinquents. However, after a child has been sentenced to an adult institution, the department of corrections may file a petition requesting the sentencing court to allow the department to transfer the juvenile defendant to an institution for juvenile delinquents. If the court approves this petition, the defendant may be transferred by the department of corrections to a child caring institution until his eighteenth birthday. If time on his sentence remains to be served when the child reaches eighteen, he can be transferred back to an adult institution. If the term expires before his eighteenth birthday, the defendant is to be released. For purposes of parole, any child transferred to an adult court and subsequently sentenced is to be treated as an adult. T.C.A. § 37 — 234(f) (1975 Supp.).
I would also like to make the following observation. In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the United States Supreme Court held that the double jeopardy clause of the Fifth Amendment attaches to the transfer hearing if the hearing becomes an adjudicatory proceeding to determine if the juvenile committed the offense charged. The Court stated that “nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding.” A reading of the State’s proof in this cause leads me to suggest that judges should be cautious as to the amount of evidence admitted to show the child committed the delinquent act. They should and must prevent the transfer hearing from becoming an adjudicatory proceeding.