Rule 28 Appeals.

Comment to Amendment Effective November 15, 1985

This rule is an attempt to reconcile the provisions of §§ 12-15-120 and 12-1130(3), Code of Alabama 1975, which provide respectively, that appeals from the juvenile court shall lie to the circuit court for trial de novo and that the circuit courts shall exercise appellate jurisdiction over district court juvenile cases, with the provisions of § 12-12-72, supra, which provide that appeals shall lie directly from the district court to the appropriate appellate court in certain instances. Thus, subsection (A) of this rule provides for direct appeals in the same instances in which they are provided under § 1212-72, supra, while subsection (B) of the rule retains and provides for the de novo appeal to the circuit court in any other case.

The direct appeal to the appropriate appellate court shall be taken whether a district or circuit judge sat as the judge of the juvenile court and should be viewed as the preferred route of all juvenile court appeals. Therefore, it is intended that a record which can be certified as adequate will be made as provided in Rule 20, Alabama Rules of Juvenile Procedure. Additionally, nothing in the language of subsection (A) should be construed as conferring the right to a jury trial upon any party in a juvenile court proceeding, including a child, who is not otherwise entitled to such right.

The second paragraph of subsection (A) further defines the phrase "appropriate appellate court" in regard to direct appeals taken from orders in cases arising out of the juvenile courts' jurisdiction over children. Direct appeals from all but two types of proceedings within this category shall lie to the court of civil appeals. Appeals in juvenile cases must, of necessity, be given priority over other appeals pending before either the appellate courts or the circuit courts and the transfer provision of subsection (D) should be expeditiously followed by the courts in those cases to which they may properly be applied.

Rule 3, Alabama Rules of Appellate Procedure, requires the trial court clerk to notify the court reporter of the filing of a notice of appeal. As a practical matter, the appellant or clerk must notify the juvenile court judge, whose responsibility with respect to the record is enlarged by this rule and Rule 20, Alabama Rules of Juvenile Procedure. If an adequate record will not be available, the juvenile judge should provide written notification of the same to authorize the appellant or clerk to direct the appeal to the circuit court in accordance with subsection (B) of this rule.

Comment to Amendment Effective August 1, 2000

Rule 28(F) was intended to resolve the problem raised by the case of Ex parte A.D.R., 690 So.2d 1208 (Ala.1996), in which a juvenile, transferred to circuit court for trial as an adult, alleged that his counsel in the transfer hearing had been ineffective. He made this claim after the time for filing an appeal from the transfer order had expired. The Supreme Court, in that case, allowed an out-of-time appeal from the transfer order. However, before the Supreme Court issued its opinion, A.D.R. had been tried on one count of capital murder, convicted, and sentenced to life imprisonment. On the date the Supreme Court issued its opinion, the appeal from that conviction was pending in the Court of Criminal Appeals. To avoid this problem, paragraph (F) was added, which stays all proceedings in the circuit court while the appeal of the transfer order is pending.

Comment to Amendment to Rule 28 Effective June 22, 2007

Rule 28(C) was amended to clarify that a written notice of appeal must be filed within 14 days of the date of the entry of order or judgment appealed from to be consistent with the amendment of Rule 1(A), which added the last sentence to provide that "[f]or all matters in the juvenile court, the phrase 'entry of order or judgment' shall have the same meaning as prescribed in Rule 58(c) of the Alabama Rules of Civil Procedure."

Comment to Amendment to Rule 28 Effective January 9, 2009

The Code sections referenced in subsections (A)(2) and (B) of this rule were updated to make the citations consistent with the Alabama Juvenile Justice Act of 2008.

Comment to Amendment to Rule 28 Effective October 1, 2011

Subsection (A)(1)(a) was amended to add the words "if applicable" before "the right to a jury trial" because in some proceedings in the juvenile court there is no right to a jury trial.

Subsection (A)(2) was amended to add to those cases that may be appealed to the Alabama Court of Criminal Appeals proceedings to revoke probation or aftercare in delinquency cases.

Other changes to this rule were technical.

Comment to Amendment to Rule 28 Effective July 1, 2014

Subsection (A) of Rule 28 was amended to eliminate the necessity of certifying the record as adequate in designated circumstances. Specifically, the juvenile court judge must certify that the record is adequate unless a licensed court reporter was present to record the proceeding, and the court reporter certifies the record as provided by the Alabama Rules of Appellate Procedure. Additionally, Rule 28 was amended to ensure that appeals of cases arising out of the jurisdiction of the juvenile court over adults are to the Court of Criminal Appeals.

Subsection (F) of Rule 28 was amended to clarify that only the trial on the alleged offense or offenses is stayed in the circuit court if an appeal is filed from an order transferring a case of a child to the adult court for criminal prosecution.

Comment to Amendment to Rule 28 Effective April 1, 2020

The amendment adds a new subsection (C) to specify that, generally, counsel appointed to represent a party in a juvenile court proceeding shall continue to represent that party in that proceeding, including the filing of the notice of appeal, if appeal is taken. This language is similar to Rule 6.2(b), Alabama Rules of Criminal Procedure. Former subsection (C) and the remaining subsections were renumbered accordingly. Other changes to the rule were technical.

Note from the reporter of decisions: The order adopting Rule 28(F) and the comment, effective August 1, 2000, is published in that volume of Alabama Reporter that contains Alabama cases from 753 So.2d. Note from the reporter of decisions: The order amending Rule 1(B), Rule 8, and Rule 28, effective January 5, 2006, is published in that volume of Alabama Reporter that contains Alabama cases from 917 So.2d.

Note from the reporter of decisions: The order amending Rule 8, Rule 25(D), and Rule 28, effective September 18, 2006, is published in that volume of Alabama Reporter that contains Alabama cases from 939 So.2d.

Note from the reporter of decisions: The order amending effective June 22, 2007, Rule 1, Rule 20, and Rule 28(C), and adopting effective June 22, 2007, Rule 13(E); the Comment to Rule 13(E) Adopted Effective June 22, 2007; the Comment to Amendment of Rule 1 Effective June 22, 2007; the Comment to Amendment of Rule 20 Effective June 22, 2007; and the Comment to Amendment of Rule 28(C) Effective June 22, 2007, is published in that volume of Alabama Reporter that contains Alabama cases from 957 So.2d.

Note from the reporter of decisions: The order amending effective January 9, 2009, Rule 1(A), Rule 8, Rule 13, Rule 20(A), Rule 24, Rule 28, and Rule 31, and adopting effective January 9, 2009, the Comment to Amendment to Rule 1(A) Effective January 9, 2009; the Comment to Amendment to Rule 8 Effective January 9, 2009; the Comment to Rescission of Rule 11 Effective January 9, 2009; the Comment to Amendment to Rule 13 Effective January 9, 2009; the Comment to Rescission of Rule 16 Effective January 9, 2009; the Comment to Amendment to Rule 20(A) Effective January 9, 2009; the Comment to Amendment to Rule 24 Effective January 9, 2009; the Comment to Amendment to Rule 28 Effective January 9, 2009; the Comment to Amendment to Rule 31 Effective January 9, 2009; and the Comment to Rescission of Rule 32 Effective January 9, 2009, is published in that volume of Alabama Reporter that contains Alabama cases from 996 So. 2d.

Note from the reporter of decisions: The order amending effective October 1, 2011, Rule 1, Rule 2, Rule 3, Rule 5, Rule 6, Rule 8, Rule 9, Rule 12, Rule 13, Rule 14, Rule 15, Rule 15.1, Rule 17, Rule 18, Rule 20, Rule 23, Rule 24, Rule 25, Rule 26, Rule 28, and Rule 31 and adopting effective October 1, 2011, Rule 8.1 and the Comment to Amendment to Rule 1 Effective October 1, 2011; the Comment to Amendment to Rule 2 Effective October 1, 2011; the Comment to Amendment to Rule 3 Effective October 1, 2011; the Comment to Amendment to Rule 5 Effective October 1, 2011; the Comment to Amendment to Rule 6 Effective October 1, 2011; the Comment to Amendment to Rule 8 Effective October 1, 2011; the Comment to Adoption of Rule 8.1 Effective October 1, 2011; the Comment to Amendment to Rule 9 Effective October 1, 2011; the Comment to Amendment to Rule 12 Effective October 1, 2011; the Comment to Amendment to Rule 13 Effective October 1, 2011; the Comment to Amendment to Rule 14 Effective October 1, 2011; the Comment to Amendment to Rule 15 Effective October 1, 2011; the Comment to Amendment to Rule 15.1 Effective October 1, 2011; the Comment to Amendment to Rule 17 Effective October 1, 2011; the Comment to Amendment to Rule 18 Effective October 1, 2011; the Comment to Amendment to Rule 20 Effective October 1, 2011; the Comment to Amendment to Rule 23 Effective October 1, 2011; the Comment to Amendment to Rule 24 Effective October 1, 2011; the Comment to Amendment to Rule 25 Effective October 1, 2011; the Comment to Amendment to Rule 26 Effective October 1, 2011; the Comment to Amendment to Rule 28 Effective October 1, 2011; and the Comment to Amendment to Rule 31 Effective October 1, 2011, is published in that volume of Alabama Reporter that contains Alabama cases from 63 So. 3d.

Note from the reporter of decisions: The order amending Rule 1, Rule 2, Rule 3, Rule 5, Rule 5.1, Rule 6, Rule 8, Rule 8.1, Rule 12, Rule 13, Rule 14, Rule 15, Rule 18, Rule 20, Rule 24, Rule 26, Rule 28, and Rule 31 effective July 1, 2014, is published in that volume of Alabama Reporter that contains Alabama cases from 135 So. 3d.

Note from the reporter of decisions: The order amending Rule 1(B), Rule 14, and Rule 28 and adopting the Comments thereto, effective April 1, 2020, is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.