David G. v. Pollard Ex Rel. County of Pima

                    SUPREME COURT OF ARIZONA
                             En Banc


DAVID G.                          )   Arizona Supreme Court
                                  )   No. CV-03-0169-PR
                      Petitioner, )
                                  )   Court of Appeals
                 v.               )   Division Two
                                  )   No. 2 CA-SA 2003-0030
THE HONORABLE MICHAEL POLLARD OF )
THE TUCSON CITY COURT, in and     )   Pima County Superior
for the COUNTY OF PIMA, STATE OF )    Court
ARIZONA,                          )   No. CR-20013589
                                  )
                      Respondent, )   Tucson City Court
                                  )   Nos. TR 02001686
STATE OF ARIZONA, ex rel.,        )        TR 02002072
MICHAEL D. HOUSE, Attorney for    )        TR 02003099
the City of Tucson,               )
                                  )
          Real Party in Interest. )   O P I N I O N
                                  )
__________________________________)

                     Petition for Review from
                 Court of Appeals, Division Two,
                       No. 2 CA-SA 2003-0030

                   Special Action Review from
                        Tucson City Court
           Nos. TR 02001686, TR 02002072, TR 02003099

                  REMANDED TO TUCSON CITY COURT


MICHAEL D. HOUSE, Tucson City Attorney                        Tucson
     By: William F. Mills
Attorneys for Real Party in Interest

City of Tucson Public Defender’s Office                    Tucson
    By:   Russell E. Hughes, Assistant City Public Defender
Attorneys for Petitioner
R Y A N, Justice

¶1            This case concerns whether a city court judge who has

been     authorized       to      adjudicate         criminal       misdemeanor    traffic

citations issued to a juvenile can apply the Arizona Rules of

Criminal Procedure and order a jury trial.                             We hold that he

cannot.

                                                I.

¶2            Petitioner, fourteen-year-old David G., was involved

in a high-speed chase through the City of Tucson with various

Tucson      Police    officers        and    a      Tucson    air    unit.     David   was

ultimately         apprehended      and     cited      for    numerous    civil    traffic

violations.          He     was    also     cited      for    two    Title   28   criminal

offenses: 1) leaving the scene of an accident in violation of

Arizona Revised Statutes (“A.R.S.”) section 28-664(A)(1) (1998),

a class 3 misdemeanor; and 2) reckless driving in violation of

A.R.S. § 28-693(A) (1998), a class 2 misdemeanor.

¶3            At David’s arraignment, the State, unaware that David

was a juvenile, advised the Tucson City Court judge that it

would       seek     jail      time       for        the     two    criminal      offenses.

Consequently, the judge appointed a public defender to represent
        1
David       and set the matter for a pretrial conference.                            After


1
     See Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (holding
“that absent a knowing and intelligent waiver, no person may be
imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at



                                                2
realizing   that   David   was   a   juvenile,   the   State   withdrew   its

request for jail time.

¶4          David filed a motion to dismiss the criminal offenses,

challenging the jurisdiction of the Tucson City Court to hear

juvenile cases.     The court denied the motion to dismiss.           David

filed a second motion to dismiss alleging a violation of due

process because the city court judge failed to comply with the

Arizona Rules of Juvenile Procedure.             The court denied David’s

motion, ruling in part, “[t]hat the Rules of Criminal Procedure

in so far as they do not conflict with the Rules of Juvenile

Procedure guarantee the protection of due process rights.”                The

court subsequently set the matter for a jury trial.              See Urs v.

Maricopa County Attorney’s Office, 201 Ariz. 71, 72, ¶ 2, 31

P.3d 845, 846 (App. 2001) (holding that reckless driving is a

jury-eligible offense under Article 2, Sections 23 and 24, of

the Arizona Constitution).

¶5          David then filed a petition for special action with

the Arizona Court of Appeals.         The court declined jurisdiction,

with Judge Flórez voting to accept jurisdiction. David filed a




his trial”); Neilson v. Superior Court, 159 Ariz. 395, 396, 767
P.2d 1185, 1186 (App. 1988) (finding that a defendant has a
constitutional right to be represented by counsel if the
defendant’s “liberty is in jeopardy” (quoting Argersinger, 407
U.S. at 40)).




                                      3
petition for review by this court.           He did not request a stay.2

¶6         Although     David’s     case    may   have    concluded    by   now,

making the issue in this case moot with respect to David, the

issue is one that is capable of repetition yet evades review.

See In re Leon G., 204 Ariz. 15, 18 n.1, ¶ 2, 59 P.3d 779, 782

n.1 (2002) (“Generally, this court will not examine waived or

moot questions.        An exception exists, however, for issues that

are of great public importance or likely to reoccur.” (citing

Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 104, 692 P.2d

280, 283 (1984) and Corbin v. Rodgers, 53 Ariz. 35, 39, 85 P.2d

59, 61 (1938))).       Concluding that clarification is necessary as

to the appropriate procedures to be applied in city court for

cases   involving       minors     charged    with       misdemeanor    traffic

offenses, we granted review.3        We have jurisdiction under Article

6,   Section   5(3),    of   the   Arizona    Constitution     and     A.R.S.   §

12-120.24 (2003).

                                      II.

¶7         A juvenile is an individual under the age of eighteen

2
     David later advised this court that he had a pretrial
conference pending in this matter.    It is unclear from the
record whether the order setting a jury trial remained in
effect. Neither party has subsequently advised us whether this
matter has been resolved, either by trial, change of plea, or
dismissal.
3
     Two other cases involving juveniles who had raised the same
issue were consolidated for the purpose of deciding the issue
raised in David’s second motion to dismiss.




                                      4
years.       A.R.S. § 8-201(6) (Supp. 2003).                An act committed by a

juvenile is considered delinquent if that same act “committed by

an   adult     would    be   a    criminal        offense   or     a    petty     offense.”

A.R.S. § 8-201(10). 4            If committed by an adult, the charges of

reckless      driving   and      leaving     the    scene   of     an      accident    would

constitute       criminal        acts      under      Title       28.           A.R.S.    §§

28-664(B),      -693(B).         Thus,   because      David       is   a    juvenile,    his

offenses were delinquent acts.

                                             A.

¶8            The juvenile court has original jurisdiction over all

delinquency proceedings, A.R.S. § 8-202(A) (Supp. 2003), and all

offenses listed in A.R.S. § 8-323(B) committed by a person under

eighteen years of age.               A.R.S. § 8-202(E).           The offenses listed

in A.R.S. § 8-323(B) include any provision of Title 28 that is

“not   declared    to    be      a   felony.”      A.R.S.     §    8-323(B)(1)        (Supp.
         5
2003).         Because       David     was   cited     under       Title     28    for   two

misdemeanor violations, the Juvenile Division of the Pima County


4
     Excluded from the definition of “delinquent act” are
offenses listed in A.R.S. § 13-501(A) and (B), which include
such offenses as first and second degree murder, sexual assault,
and other serious offenses. A.R.S. § 8-201(10).
5
     The other offenses listed in A.R.S. § 8-323(B) consist of
the following: purchase of alcohol; boating or game and fish
violations; curfew violations; truancy; graffiti offenses;
purchase or possession of tobacco; violations of any city
ordinance; and “failure to appear related to any offense in this
section.” A.R.S. § 8-323(B)(2)-(9).




                                             5
Superior    Court       had    original   jurisdiction         to    adjudicate    these

charges.

¶9            Although the juvenile court has original jurisdiction

over   such    citations,        the   presiding       judge    of    the   county     may

decline jurisdiction over the offenses listed in A.R.S. § 8-

323(B).     A.R.S. § 8-202(E). 6           If such a declination occurs, the

presiding     judge      of   the    juvenile    court    has       the   discretion    to

appoint juvenile hearing officers, “who may be magistrates or

justices      of   the    peace.”       A.R.S.    §    8-323(A).          Such   hearing

officers    “may    hear       and   determine    juvenile      pretrial      detention

hearings” and “process, adjudicate and dispose of all cases that

are not classified as felonies and in which a juvenile . . . is

charged with violating,” among other offenses, “[a]ny provision

of title 28 not declared to be a felony.”                      A.R.S. § 8-323(B)(1)

(footnote omitted).

¶10           Effective March 5, 2001, the presiding judge of the

Juvenile Division of the Pima County Superior Court declined

jurisdiction       of    all    juvenile       civil    and    misdemeanor       traffic

offenses other than offenses for driving under the influence.

Admin. Order No. 2001-01 (Feb. 26, 2001).                       In the same order,

the presiding judge authorized city magistrates to hear those

6
     This provision allows juveniles to be treated as adults for
civil traffic violations.     See A.R.S. § 8-202(E).     But as
discussed later, for misdemeanor criminal traffic offenses, the
juvenile must be adjudicated under the procedures set forth in
A.R.S. § 8-323.



                                           6
matters.     Id.     The Tucson City Council approved the delegation

of this authority to the city magistrates in 2001.                                  Res. No.

18865   (Mar.      26,    2001);    see    A.R.S.       §   8-323(A)       (requiring          the

local governing body to “approve the appointment of municipal

judges as juvenile hearing officers”).                        Consequently, the city

court judge in this case, sitting as a juvenile court hearing

officer,     had    the       authority     to       hear    and    adjudicate        David’s

citations.

                                            B.

¶11         Delinquency         proceedings          are    governed    by    the     Arizona

Rules of Procedure for the Juvenile Court.                          Ariz. R.P. Juv. Ct.

1(A); Yavapai County Juvenile Action No. 7707, 25 Ariz. App.

397, 399, 543 P.2d 1154, 1156 (1975).                              A proceeding in the

juvenile    court        is    generally        initiated      by    the     filing       of    a

referral of delinquent conduct that sets forth                         1) the facts of

the    juvenile’s        alleged    acts;       2)    the    juvenile’s       name,        age,

gender,    and      address;       3)     the     names      and     addresses       of        the

juvenile’s parent, guardian, or custodian, if known; and 4) if

the juvenile is in custody, the place of detention and the date

and time the juvenile was taken into custody.                          Ariz. R.P. Juv.

Ct. 22(A).       Upon receipt of the referral, the prosecutor has the

sole    discretion        to    divert     or     defer      the     prosecution          to     a

community based alternative program or to a diversion program.

Id. R. 22(C).        If the prosecutor does not designate the offense



                                            7
for diversion, the referral must be submitted for prosecution.

Id. R. 22(D).         Once the referral of a juvenile who is not in

custody has been received by the prosecutor, the prosecutor has

forty-five days to file a petition with the court.                                    Id. R.

25(B)(2).       Notice of the petition and notice to appear before

the court must be given in writing to the juvenile and his

parent, guardian, or custodian.                     Id. R. 26(A).             Attendance at

the proceeding is mandatory for the juvenile and his parent,

guardian, or custodian.7              Id.

                                              C.

¶12         By    statute       and    rule,       juvenile        proceedings    for      non-

felony offenses may be initiated “by the referral of a uniform

Arizona   traffic        ticket       and    complaint         form,”    rather      than     by

filing a formal petition.                   A.R.S. § 8-301(3)(Supp. 2003); see

also   A.R.S.     §   8-323(C)        (permitting         a    hearing   on    any    of     the

offenses listed in A.R.S. § 8-323(B) to “be conducted upon . . .

a uniform Arizona traffic ticket”); Ariz. R.P. Juv. Ct. 33(A)

(providing for the initiation of juvenile proceedings for non-

felony offenses “by the filing of an Arizona Traffic Ticket and

Complaint,       otherwise       known       as     a   citation,        in    lieu     of    a

petition”).        But    the    Juvenile         Rules       of   Procedure    contain       no

specific rules governing the adjudication of juveniles cited for

7
     “Upon a showing of good cause, the court may waive the
appearance of the parent, guardian or custodian . . . .” Ariz.
R. P. Juv. Ct. 26(A).



                                              8
violating any of the offenses listed in A.R.S. § 8-323(B).

¶13           The omission of specific procedures in the Juvenile

Rules   for    the     adjudication    of     non-felony       offenses     was   not

inadvertent.     As the comment to Rule 33 explains:

          It was the determination of the committee
          that due to the number of lower courts which
          process     non-felony     offenses,   statewide
          procedural rules would not permit individual
          counties the flexibility needed to dispose of
          such cases in the most efficient manner
          possible. Further, amendments made to A.R.S.
          [§] 8-323, as reflected in S.B. 1024, have
          clarified some of the provisions which have
          been   most    troublesome   for   the  juvenile
          courts.

Ariz. R.P. Juv. Ct. 33 cmt.           The question, therefore, is whether

a city judge, sitting as a juvenile hearing officer, has the

flexibility      to    apply   the    Rules        of    Criminal     Procedure    to

proceedings brought under A.R.S. § 8-323.

¶14           David argues that only the Juvenile Rules of Procedure

can be applied.         The State counters that the comment to Rule 33

authorizes      the     municipal    courts        to    depart     from   “[s]trict

compliance      with     the   dictates       of        the   Rules   of    Juvenile

Procedure,” and fill the gap by applying the Rules of Criminal

Procedure.       Both    parties     ignore   the        procedures   described    in

A.R.S. § 8-323.

                                       III.

                                        A.

¶15           In State ex rel. Collins v. Seidel, 142 Ariz. 587,



                                        9
591,    691    P.2d        678,     682    (1984),     we   recognized    that     the

legislature may enact procedural rules that supplement, but do

not contradict, the rules the court has promulgated.                     Section 8-

323 sets forth the procedures a juvenile hearing officer must

follow in adjudicating a juvenile charged with violating any of

the offenses listed in A.R.S. § 8-323(B). 8                  For several reasons,

we     conclude    that       the        procedures    in   §    8-323    reasonably

supplement, and do not contradict, the relevant Juvenile Rules

of Procedure.

¶16           First,       A.R.S.    §    8-323(C),     mirroring     Juvenile    Rule

33(A), authorizes the juvenile hearing officer to depart from

the    formality      of    the     general       requirements   of    referral   and

petition and may conduct a hearing on an alleged violation based

upon “a written notice to appear, including a uniform Arizona

traffic ticket and complaint form, that states, at a minimum,


8
     In his supplemental brief, David contends that because
Article 6, Section 5 gives exclusive power to this court to
promulgate procedural rules, application of any procedural
scheme other than the Rules of Juvenile Procedure violates
Article 6 and the separation of powers provision of the
constitution, Article 3.     David did not raise this argument
below, nor in his petition for review. Therefore, the argument
is waived.   State v. Detrich, 188 Ariz. 57, 64, 932 P.2d 1328,
1335 (1997) (Defendant waived issue “by failing to sufficiently
argue this claim on appeal.”); State v. Nirschel, 155 Ariz. 206,
208, 745 P.2d 953, 955 (1987) (“Failure to argue a claim
constitutes abandonment and waiver of that issue.” (citing State
v. McCall, 139 Ariz. 147, 163, 677 P.2d 920, 936 (1983))).
Nevertheless, as we explain, the procedures outlined in A.R.S. §
8-232 do not conflict with the Juvenile Rules of Procedure.




                                             10
the name and address of the juvenile, the offense charged and

the time and place the juvenile shall appear in court.”                             Second,

A.R.S. § 8-323(D), paralleling Rule 26(A), provides that the

matter may not proceed to disposition unless a parent, guardian,

or    custodian    appears    with       the    juvenile          at   the   time    of   the

disposition. 9      Third, a juvenile has the right to appeal to the

juvenile   court     from    an    order       of   a       juvenile   hearing      officer.

A.R.S. § 8-325 (1999).             This procedure comports with that set

forth in Rules 88 and 89 governing juvenile appellate procedure.

¶17         In addition, and perhaps most importantly, A.R.S. § 8-

323(F) limits the sanctions the hearing officer may impose.                               For

example, the hearing officer may not impose jail time.                              Instead,

the   hearing     officer    may    do    any       of      the   following:    place     the

juvenile on unsupervised probation, § 8-323(F)(1); transfer the

citation to the juvenile court for further proceedings, § 8-

323(F)(2);        suspend     or     restrict               the    juvenile’s        driving

privileges, § 8-323(F)(3); order the juvenile to attend traffic

school or counseling, § 8-323(F)(4); order the juvenile to pay a

monetary     assessment      or     penalty,            §    8-323(F)(5);      order      the

juvenile to perform community service, § 8-323(F)(6); order the

juvenile to pay restitution, § 8-323(F)(9); or reprimand the


9
     But “[u]pon a showing of good cause that the parent,
guardian or custodian cannot appear on the date and time set by
the court, the court may waive the requirement that the parent,
guardian or custodian appear.” A.R.S § 8-323(D).



                                           11
juvenile and take no further action, § 8-323(F)(11).                       Moreover,

in Pima County, once the proceeding has concluded, the hearing

officer    must   forward    copies    of    all    citations     along      with   his

findings    and   disposition     to    the    juvenile      court     for    review.

Admin. Order No. 2001-01 (Feb. 26, 2001).                   Because all possible

sanctions fall short of incarceration, we conclude that strict

application of the Juvenile Rules of Procedure, as argued by

David, is not required.

¶18         Instead,     the    procedures         in   §   8-323     provide       the

flexibility recommended in the comment to Juvenile Rule 33, yet

still afford a juvenile procedural due process similar to that

provided by the Juvenile Rules of Procedure.

                                        B.

¶19         Contrary to the State’s position, the Arizona Rules of

Criminal Procedure apply only to “criminal proceedings in all

courts within the State of Arizona.”                    Ariz. R. Crim. P. 1.1

(emphasis added).      Because David is a juvenile, the allegations

against him are not criminal offenses.                  See A.R.S. § 8-201(10)

(defining     criminal       offenses        committed       by      juveniles       as

“delinquent acts”).         Furthermore, an adjudication of delinquency

is not deemed a criminal conviction and does not impose any

civil     disabilities      ordinarily        resulting       from     a     criminal

conviction.       A.R.S. § 8-207(A) (Supp. 2003).                   Therefore, the

application of the Rules of Criminal Procedure to a juvenile’s



                                        12
adjudication in a proceeding brought under A.R.S. § 8-323(B)

conflicts with the plain language of Rule 1.1.                              Thus, to the

extent the city court applied the Rules of Criminal Procedure,

it erred.

                                             IV.

¶20           Nevertheless, the State maintains that application of

the   Rules    of    Criminal       Procedure       did    not    violate    David’s   due

process rights in this case.                      In fact, the State argues that

affording     David     a    jury    trial        gives    him    more    procedural    due

process than do the procedures in A.R.S. § 8-323 or the Rules of

Juvenile      Procedure.            This     argument         overlooks     the    policies

underlying the juvenile justice system.

                                             A.

¶21           From    the    inception       of    the     juvenile      justice    system,

courts   have       recognized       that    juvenile         cases    involved    special

interests that could not be adequately addressed by the adult

criminal system.            In re Gault, 387 U.S. 1, 15 (1967) (noting

that the early reformers of the juvenile system were “profoundly

convinced that society’s duty to the child could not be confined

by the concept of justice alone”).                        The juvenile was seen as

essentially     good        and   the      idea    of     crime    and    punishment   was

abandoned.        Id.       The primary function of juvenile courts is

treatment and rehabilitation.                 Id. at 15-16 (“The child was to

be    ‘treated’      and     ‘rehabilitated’            and      the   procedures,     from



                                             13
apprehension through institutionalization, were to be ‘clinical’

rather   than   punitive.”).       In    contrast,       the    public    policy    of

Arizona’s     Criminal   Code     is    “to    condemn,     correct,      or    deter

transgressions      which       harm     either        individual        or    public

interests.”     State v. Bly, 127 Ariz. 370, 371, 621 P.2d 279, 280

(1980) (citing A.R.S. § 13-101).              In addition, rehabilitation is

not an express sentencing policy of our criminal code; rather

the policy is “[t]o impose just and deserved punishment on those

whose conduct threatens the public peace.” Id. at 372, 621 P.2d

at 281 (quoting A.R.S. § 13-101(6)).

¶22         In an attempt to further the goals of treatment and

rehabilitation of juveniles, courts in the past kept juvenile

proceedings less formal and initially forsook the “rigidities,

technicalities, and harshness” of the substantive and procedural

criminal    law.       Gault,     387    U.S.     at     15.       Such       informal

proceedings,     however,   were       ultimately       found    to   violate      the

juvenile’s right to due process.                Id. at 19 (“Unfortunately,

loose    procedures,     high-handed          methods     and     crowded       court

calendars, either singly or in combination, all too often have

resulted in depriving some juveniles of fundamental rights that

have resulted in a denial of due process.” (quoting Paul S.

Lehman, A Juvenile’s Right to Counsel in a Delinquency Hearing,

17 Juv. Ct. Judges J. 53, 54 (1966))).




                                        14
¶23           Consequently,            the   United     States       Supreme    Court     held

that the Due Process Clause applies to juvenile proceedings.

Schall      v.     Martin,      467     U.S.    253,    263     (1984)       (holding     that

“certain         basic    constitutional         protections         enjoyed     by    adults

accused of crimes also apply to juveniles”).                                 A juvenile is

entitled,        among    other       things,    to    notice    of    the     charges,    see

Gault, 387 U.S. at 31-34; right to counsel, 10 see id. at 34-42;

privilege against self-incrimination, see id. at 42-57; right to

confrontation,           see    id.    at    56-57;    cross-examination,         see     id.;

proof beyond a reasonable doubt, see In re Winship, 397 U.S.

358, 368 (1970); and protection against double jeopardy, see

Breed v. Jones, 421 U.S. 519, 527-28 (1975).                           The Court did not

hold, however, that a juvenile charged with criminal conduct

must   be    treated       in    the    same    manner    as     a    similarly       situated

adult.      Instead, the Court stated that “the Constitution does

not mandate elimination of all differences in the treatment of

juveniles.”         Schall, 467 U.S. at 263.               Rather, the Court noted,

“[t]he State has ‘a parens patriae interest in preserving and

10
     If the proceedings will not result in the commitment of the
juvenile   to  custody,  the   constitution  does   not  require
appointment of counsel.    Gault, 387 U.S. at 41 (“We conclude
that the Due Process Clause of the Fourteenth Amendment requires
that in respect of proceedings to determine delinquency which
may result in commitment to an institution in which the
juvenile’s freedom is curtailed, the child and his parents must
be notified of the child’s right to be represented by counsel
retained by them, or if they are unable to afford counsel, that
counsel will be appointed to represent the child.”) (emphasis
added).



                                                15
promoting     the       welfare    of   the       child,’   which         makes    a    juvenile

proceeding         fundamentally        different       from         an     adult       criminal

trial.”       Id. (quoting Santosky v. Kramer, 455 U.S. 745, 766

(1982)).

¶24           Thus,       certain       constitutional          protections             afforded

adults are not guaranteed to juveniles.                     For example, a juvenile

is not guaranteed the right to a trial by jury.                                   McKeiver v.

Pennsylvania, 403 U.S. 528, 545 (1971); see also Ariz. R.P. Juv.

Ct. 6 (Juvenile proceedings are to be conducted informally “in a

manner similar to the trial of a civil action before the court

sitting without a jury.”).                    The task of the juvenile court,

therefore,         is    “to      strike      a     balance      —        to    respect       the

‘informality’           and    ‘flexibility’         that       characterize            juvenile

proceedings, and yet to ensure that such proceedings comport

with   the    ‘fundamental         fairness’        demanded      by      the     Due    Process

Clause.”       Schall, 467 U.S. at 263 (citing Breed, 421 U.S. at

531, McKeiver, 403 U.S. at 543, and Winship, 397 U.S. at 366).

                                              B.

¶25           We     conclude        that     the     substantive           and     procedural

structure of A.R.S. § 8-323 appropriately safeguards due process

rights,      yet    allows     the    flexibility       necessary          to     promote     the

policies of the juvenile justice system.                        As discussed above, a

juvenile hearing officer must notify the juvenile’s parent or

guardian      before      disposition.             A.R.S.   §    8-323(D).              And   the



                                              16
hearing officer has limited discretion as to what sanctions may

be     imposed.       See     A.R.S.      §    8-323(F)(1)-(11).                  Finally,     a

determination that the juvenile committed a delinquent act is

not considered to be a criminal conviction.                                  See A.R.S. § 8-

207(A) (Adjudication of delinquency by the juvenile court will

“not     be   deemed      a     conviction          of        crime,     impose    any   civil

disabilities ordinarily resulting from a conviction or operate

to disqualify the juvenile in any civil service application or

appointment.”).

¶26           Consequently, we disagree with the State’s assertion

that a jury trial provides more protection for the due process

rights of the juvenile than does an adjudication before a judge.

Forcing a juvenile to be tried by a jury for the offenses for

which    David      was   cited    does       not    promote           the   informality     and

flexibility       that    the     juvenile         courts        strive      to   achieve    and

subjects the juvenile to the very stigma the legislature sought

to prevent.

¶27           We therefore hold that a city court judge, sitting as

a juvenile hearing officer, cannot apply the Rules of Criminal

Procedure and order a jury trial, but must instead apply the

procedures of A.R.S § 8-323.

                                              V.

¶28           The    ultimate     resolution             of    this     matter    will   depend

upon the status of David’s case.                          If he has been tried and



                                              17
convicted as an adult, the city court judge must vacate the

convictions without prejudice.   On the other hand, if the matter

is still pending, the judge must process the matter under the

procedures set forth in A.R.S. § 8-323.      We therefore remand

this matter to the city court for further proceedings consistent

with this opinion.



                         ______________________________________
                         Michael D. Ryan, Justice



CONCURRING:


______________________________________
Charles E. Jones, Chief Justice


______________________________________
Ruth V. McGregor, Vice Chief Justice


                                      _
Rebecca White Berch, Justice


______________________________________
Andrew D. Hurwitz, Justice




                                 18