¶1(dissenting) .
¶2The questions involved in this case concern the proceeding at which a juvenile court relinquishes jurisdiction over a juvenile in order that criminal proceedings may be brought against the juvenile. Our statute, § 13-8-27, supra, states that the juvenile court may “certify such child for proper criminal proceedings ….” The decisions refer to this action in several ways — as transfer, remand or waiver of jurisdiction. To avoid confusion, “transfer”, is used herein as meaning the proceeding by which the juvenile is certified for criminal proceedings.
¶3The majority opinion avoids a decision on the question of whether a juvenile has the right to counsel at a transfer hearing. It avoids this issue by holding that if this right exists, it was waived in this case. I disagree; I would hold there was a right to counsel and that the question of waiver is not reached because of a lack of jurisdiction.
¶4In discussing the question of counsel at the transfer hearing, the majority opinion relies on Cradle v. Peyton, supra. Cradle declines to place the right to counsel on a constitutional basis, but indicates the right, where it has been held to exist, is a development in statutory law. I do not see how it can be a statutory right. Section 13 — 8— 27, supra, contains no reference to counsel. Neither did the statute involved in Kent v. United States; supra. Both statutes are set out in 43 Wash. L.R. 639, note 12, page 641. Kent says:
“We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.”
¶5The right to counsel exists as a result of application of constitutional principles to the statute providing for the transfer.
¶6Which constitutional principles ? Kent refers to due process and assistance of counsel. However, constitutional provisions concerning right to counsel refer to a right to counsel in criminal prosecutions. U. S. Const. Amend. VI; N.M. Const. Art. II, § 14. State v. Acuna, 78 N.M. 119, 428 P.2d 658 (1967) held that the constitutional provision of “right to counsel” did not entitle a juvenile to counsel at the transfer proceeding because this proceeding was not a criminal proceeding.
¶7Kent states that the transfer proceeding is “critically important” and must measure up to the essentials of due process. See Steinhauer v. State, supra. For the distinction between “due process” and “right to counsel” provisions, as applied in juvenile proceedings, compare the majority opinion of In re Gault, supra, with Justice Black’s concurring opinion.
¶8Section 13-8-27, supra, authorizes transfer after a “full investigation”. This “full investigation” must measure up to the constitutional requirement of due process. To meet the essentials of due process, the juvenile, at least (a) must be afforded the right to be represented by counsel at the transfer hearing and (b) must be notified of the-right to be represented and that if he is unable to afford counsel that counsel will be provided.
¶9The majority opinion holds that the right to counsel at a transfer proceeding, if it exists, is waived by a failure to raise the right as an issue prior to arraignment in the criminal proceedings. I agree that rights may be waived by a plea in criminal proceedings. Further, I agree that in certain instances rights of a juvenile under the juvenile law may be waived by plea at arraignment. For example, misrepresentation or non-disclosure of a juvenile’s age prior to arraignment results in waiver of rights under the juvenile act. State v. Superior Court of Pima County, 7 Ariz.App. 170, 436 P.2d 948 (1968); Sheppard v. Rhay, Wash., 440 P.2d 422 (1968).
¶10In my opinion, however, the trial court did not have authority to accept the plea which, according to the majority, resulted in a waiver.
¶11Trujillo v. Cox, 75 N.M. 257, 403 P.2d 696 (1965) states:
“Exclusive original jurisdiction over juveniles under 18 years of age is vested in the juvenile court by § 8, Ch. 205, Laws 1955 which has been amended and now appears as § 13-8-26, N.M.S.A. 1953. In those states having statutes similar to our own, it is commonly held that the trial courts are without jurisdiction to proceed against such a juvenile unless and until the juvenile court has transferred him to the trial court in the manner provided by statute.”
¶12See citations of decisions appearing in State v. Superior Court of Pima County, supra.
¶13In this case Neller was not transferred in the manner provided by statute when the statute is read in the context of the requirements of due process. Neller did not have counsel at the transfer proceeding; the trial court specifically advised him that counsel would be provided only after he had been transferred.
¶14Thus, under Trujillo v. Cox, supra, the trial court was without jurisdiction to proceed and was without jurisdiction to accept the plea which, according to the majority opinion, resulted in the waiver.
¶15What is meant by “jurisdiction” in the Trujillo decision? Heckathorn v. Heckathorn, 77 N.M. 369, 432 P.2d 410 (1967), indicates there are three jurisdictional essentials: jurisdiction over the parties, jurisdiction over the subject matter and power or authority to decide the particular matter presented.
¶16These jurisdictional essentials must be considered in relation to N.M. Const. Art. VI, § 13 which provides:
“The district court shall have original jurisdiction in all matters and causes not excepted in this Constitution, and such jurisdiction of special cases and proceedings as may be conferred by law …
¶17Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968) teaches us that the juvenile court is a division of the District Court and that our Juvenile Code validly provides for special proceedings in the District Court. Juvenile proceedings were filed against Neller on the basis that he had violated a law of this state which would be a felony if committed by an adult. In this situation Peyton v. Nord states that “[i]t is only after facts required to vest jurisdiction have been found to be present that the exclusive original jurisdiction …” of the juvenile court (juvenile division of the District Court) attaches.
¶18Since in this case the jurisdictional facts had not been determined, exclusive, original jurisdiction in the juvenile court had not attached and the District Court (distinct from its juvenile division) had jurisdiction of the subject matter. N.M. Const. Art. VI, § 13; Peyton v. Nord, supra. On the basis of the same authority, I am of the opinion that the District Court had jurisdiction of the person of Neller. Compare, however, State v. Superior Court of Pima County, supra, where under a similar constitutional provision, the Arizona court indicated there was absence of jurisdiction over the person in the criminal prosecution because there was “… no order refusing to suspend criminal prosecution in the juvenile court …
¶19Heckathorn v. Heckathorn, supra, illustrates the third jurisdictional essential— power or authority to decide the particular matter presented. There, the District Court did not have power to grant a divorce to plaintiff because she had not been a resident for the time required by our statute. This is the “jurisdiction” referred to in Trujillo v. Cox, supra.
¶20In my view, the District Court did not have authority to proceed with the criminal proceedings against Neller because Neller had not been transferred from the juvenile to the criminal docket of the District Court in the manner required by the statute authorizing such a transfer. This view is directly supported by Peyton v. French, 207 Va. 73, 147 S.E.2d 739 (1966), Dillenburg v. Maxwell, Wash., 422 P.2d 783 (1967) and Summers v. State, Ind., 230 N.E.2d 320 (1967). Inferential support appears in People ex rel. Terrell v. District Court in and for City & Co. of Denver, Colo., 435 P.2d 763 (1967) and in People ex rel. Rodello v. District Court in and for City & Co. of Denver, Colo., 436 P.2d 672 (1968). Shannon v. Gladden, 243 Or. 334, 413 P.2d 418 (1966) and State v. Briggs, 245 Or. 503, 420 P.2d 71 (1966) are not to the contrary. Shannon considered a statutory provision that differs from ours; Briggs was decided on a procedural point.
¶21The majority opinion does not discuss the question of the District Court’s “jurisdiction” in the criminal proceedings, but asks, “… what reason can be advanced to hold there was no waiver of such defect …?” In my view there is a reason for holding there was no waiver and that reason is that the District Court was without authority to proceed because of the failure to transfer Neller in the manner required by § 13-8-27 when the statute is considered in the context of due process.
¶22The majority opinion also states:
“While we can agree that a procedure which results in a child receiving ‘the worst of both worlds,’ viz., adult and juvenile, is wrong and unsupportable, we see nothing that constitutionally requires anything more or better than is accorded an adult.”
¶23The legislature has provided a Juvenile Code which accords special rights to juveniles. We are not concerned here with the wisdom of this enactment. People ex rel. Rodello v. District Court in and for City & Co. of Denver, supra. One of the rights accorded to a juvenile is that he is not to be deprived of Juvenile Code benefits except as provided by that Code. Specifically, he is not to be transferred for criminal proceedings unless the transfer is in ac•cordance with the statute providing for such a transfer. Kent v. United States, supra, holds that the statute providing for transfer must be read in the context of the constitutional principle of due process. The answer to the majority statement is that due process • concepts applied to § 13-8-27 requires that he be afforded benefits not accorded to an adult.
¶24For the above reasons, I dissent.