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State v. Welch

June 12, 1973

STATE EX REL JUVENILE DEPARTMENT OF COOS COUNTY, RESPONDENT,
v.
DION ARTHUR WELCH, APPELLANT



Appeal from Circuit Court, Coos County. James A. Norman, Judge.

Elden M. Rosenthal, Portland, argued the cause for appellant. On the brief were Pozzi, Wilson & Atchison and Garry L. Kahn, Portland.

Robert E. Brasch, District Attorney, Coquille, argued the cause for respondent. With him on the brief was Richard L. Barron, Assistant District Attorney, Coquille.

Foley, Judge. Schwab, Chief Judge, and Thornton, Judge. Fort, Judge, concurring. Langtry, Judge, joins in this concurring opinion.

Foley

Former opinion adhered to except as herein modified.

We realize that recognition by this court of the requirement that a waiver of rights by a juvenile must appear in the record will in some instances place further burdens on juvenile courts. In our original opinion

we held that the child must be apprised of and understand the legal consequences of his admission of jurisdiction. We point out that this inquiry into the knowing and voluntary nature of the admission of jurisdiction will and should vary depending on the circumstances of the case, the age and intelligence of the child, as well as other factors which we decline to attempt to enumerate. As we said in Raisley v. Sullivan, 8 Or App 332, 336, 493 P2d 745, Sup Ct review denied (1972):

"* * * [W]e decline to impose a rigid formula on our own courts. The judge who accepts a guilty plea must have sufficient latitude to tailor his questions to the needs of the defendant before him.

"* * * [T]he record must contain an affirmative showing of the voluntariness of the plea." (Emphasis omitted.)

Rather than reverse we remand this case for further proceedings. Our former opinion held that the record did not disclose a knowing and voluntary waiver of rights. It may be that additional evidence would disclose a knowing and voluntary waiver. If so, the entry of the plea was valid. If not, the plea itself must be set aside for further proceedings consistent with this and our former opinion.

The assignment of error that the court abused its discretion in placing the child in MacLaren we ...


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