concurring.
| lfiI join the majority opinion but write separately to urge the General Assembly to consider an amendment to our Juvenile Code to address the conundrum we face in this appeal.
In the instant case, the circuit court, criminal division, transferred C.H.’s case to circuit court, juvenile division, for C.H. to enter a plea in accordance with a plea agreement. The State opposed the transfer because C.H. was seventeen. When C.H.’s father refused to sign a jury waiver, the plea could not be entered, and the plea agreement was no longer viable.
The juvenile division orally noted that the prosecutor would now move to set aside the transfer order from the criminal division, which the prosecutor, in fact, did. The criminal division then entered an order setting aside its original transfer order. The majority opinion correctly holds that the criminal division had no authority to do this under our case law regarding concurrent jurisdiction. Accordingly, we dismiss the case for lack of jurisdiction over this particular case, the reason being that the criminal division gave up its exclusive jurisdiction over the matter by its transfer to the juvenile division.
Yet, all of this leaves the prosecution of this case unsettled and in something of a quandary. There is no statutory authority under the Juvenile Code and, specifically under Arkansas Code Annotated section 9-27-318, for a juvenile division to transfer the matter back to the criminal division, even though the reason for the original transfer to juvenile court no longer exists. Indeed, it appears that since the plea agreement has fallen apart, no one desires that the matter remain in the juvenile division except for the public defender on behalf of C.H.
|I7I certainly do not espouse a system of justice that would have juveniles transferred back and forth between criminal division and juvenile division like ping pong balls. See Smith v. State, 399 Md. 565, 924 A.2d 1175 (2007) (Wilner, J., concurring). But when the entire reason for the transfer no longer exists, or where a transfer is made based on a misrepresentation of fact, it seems that there should be some statutory vehicle for the juvenile division to transfer the matter back to the criminal division.
In the matter before us, without such authority in the juvenile division, the case languishes there where neither the prosecutor nor the two judges want it. Clearly, under these facts justice is not done.
This is not our typical concurrent-jurisdiction case where one division of circuit court conflicts with another division over deciding the matter like we have had in at least two cases since the adoption of amendment 80 to the Arkansas Constitution. See, e.g., Foster v. Hill, 372 Ark. 263, 275 S.W.3d 151 (2008); Edwards v. Nelson, 372 Ark. 300, 275 S.W.3d 158 (2008). Here, on the contrary, both judges ostensibly believe the case should go back to criminal division.
The majority concludes that the State should have appealed the transfer from criminal division to juvenile division within thirty days of the transfer order. That seems an awkward solution, though. See also Thomas v. State, 345 Ark. 236, 45 S.W.3d 818 (2001) (The onus was also placed on the State to appeal.). By the time the State learned that C.H.’s father would not allow the plea agreement to transpire, the State only had twenty-three days from the order of transfer to appeal. In other cases, that time could be even more truncated. If the 118State had agreed to the original transfer to juvenile division, which it admittedly did not do in the case at hand, it would be put in the awkward position of challenging a transfer by appeal under the ten factors which it had so recently supported.
The more reasoned solution is a legislative act providing the juvenile division with transfer authority under exceptional circumstances such as where erroneous information led to the original transfer from the criminal division or when the purpose of the transfer has been thwarted.