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2011 SESSION
11102265DBe it enacted by the General Assembly of Virginia:
1. That § 16.1-269.1 of the Code of Virginia is amended and reenacted as follows:
§ 16.1-269.1. Trial in circuit court; preliminary hearing; direct indictment; remand.
A. Except as provided in subsections B and C, if a juvenile fourteen 14
years of age or older at the time of an alleged offense is charged with an
offense which would be a felony if committed by an adult, the court shall, on
motion of the attorney for the Commonwealth and prior to a hearing on the
merits, hold a transfer hearing and may retain jurisdiction or transfer such
juvenile for proper criminal proceedings to the appropriate circuit court
having criminal jurisdiction of such offenses if committed by an adult. Any
transfer to the appropriate circuit court shall be subject to the following
conditions:
1. Notice as prescribed in §§ 16.1-263 and 16.1-264 shall be given to the juvenile and his parent, guardian, legal custodian or other person standing in loco parentis; or attorney;
2. The juvenile court finds that probable cause exists to believe that the juvenile committed the delinquent act as alleged or a lesser included delinquent act which would be a felony if committed by an adult;
3. The juvenile is competent to stand trial. The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the presumption by a preponderance of the evidence; and
4. The court finds by a preponderance of the evidence that the juvenile is not a proper person to remain within the jurisdiction of the juvenile court. In determining whether a juvenile is a proper person to remain within the jurisdiction of the juvenile court, the court shall consider, but not be limited to, the following factors:
a. The juvenile's age;
b. The seriousness and number of alleged offenses, including
(i) whether the alleged offense was committed in an aggressive, violent,
premeditated, or willful manner; (ii) whether the alleged offense was against
persons or property, with greater weight being given to offenses against
persons, especially if death or bodily injury resulted; (iii) whether the
maximum punishment for such an offense is greater than twenty 20 years confinement if committed
by an adult; (iv) whether the alleged offense involved the use of a firearm or
other dangerous weapon by brandishing, threatening, displaying or otherwise
employing such weapon; and (v) the nature of the juvenile's participation in
the alleged offense;
c. Whether the juvenile can be retained in the juvenile justice system long enough for effective treatment and rehabilitation;
d. The appropriateness and availability of the services and dispositional alternatives in both the criminal justice and juvenile justice systems for dealing with the juvenile's problems;
e. The record and previous history of the juvenile in this or other jurisdictions, including (i) the number and nature of previous contacts with juvenile or circuit courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the alleged offense is part of a repetitive pattern of similar adjudicated offenses;
f. Whether the juvenile has previously absconded from the legal custody of a juvenile correctional entity in this or any other jurisdiction;
g. The extent, if any, of the juvenile's degree of mental retardation or mental illness;
h. The juvenile's school record and education;
i. The juvenile's mental and emotional maturity; and
j. The juvenile's physical condition and physical maturity.
No transfer decision shall be precluded or reversed on the
grounds that the court failed to consider any of the factors specified in
subdivision A
4 of this section.
B. The juvenile court shall conduct a preliminary hearing
whenever a juvenile fourteen 14
years of age or older is charged with murder in violation of §§ 18.2-31, 18.2-32, or § 18.2-40,
or aggravated
malicious wounding in violation of § 18.2-51.2, or
an act of violence as defined in § 19.2-297.1 if the juvenile has been
previously adjudicated delinquent for an offense defined as an act of violence in § 19.2-297.1.
C. The juvenile court shall conduct a preliminary hearing
whenever a juvenile fourteen 14
years of age or older is charged with murder in violation of § 18.2-33,;
felonious injury by mob in violation of § 18.2-41,; gang
participation in violation of § 18.2-46.2; abduction
in violation of § 18.2-48,; malicious wounding in
violation of § 18.2-51,; malicious wounding of a
law-enforcement officer in violation of § 18.2-51.1,; felonious poisoning in
violation of § 18.2-54.1,; adulteration of products in
violation of § 18.2-54.2,; robbery in violation of §
18.2-58 or;
carjacking in violation of § 18.2-58.1,; rape in violation of §
18.2-61,;
forcible sodomy in violation of § 18.2-67.1 or; object sexual penetration in
violation of § 18.2-67.2,; manufacturing,
selling, giving, distributing, or possessing with intent to manufacture, sell, give
or distribute a controlled substance or an imitation controlled substance in
violation of § 18.2-248 if the juvenile has been previously adjudicated
delinquent of violating §
18.2-248; manufacturing,
selling, giving, distributing, or possessing with intent to manufacture, sell,
give, or distribute methamphetamine in violation of § 18.2-248.03 if the
juvenile has been previously adjudicated delinquent of violating § 18.2-248.03; felonious selling, giving, distributing or possessing with intent to distribute
marijuana in violation of § 18.2-248.1 if the juvenile has been previously
adjudicated delinquent of violating §
18.2-248.1; or a felony offense
of manufacturing, selling, giving, distributing, or possessing with intent to
manufacture, sell, give, or distribute anabolic steroids in violation of §
18.2-248.5 if the juvenile has been previously adjudicated delinquent of violating
§ 18.2-248.5, provided the
attorney for the Commonwealth gives written notice of his intent to proceed
pursuant to this subsection. The notice shall be filed with the court and
mailed or delivered to counsel for the juvenile or, if the juvenile is not then
represented by counsel, to the juvenile and a parent, guardian or other person
standing in loco parentis with respect to the juvenile at least seven days
prior to the preliminary hearing. If the attorney for the Commonwealth elects
not to give such notice, or if he elects to withdraw the notice prior to
certification of the charge to the grand jury, he may proceed as provided in
subsection A.
D. Upon a finding of probable cause pursuant to a preliminary hearing under subsection B or C, the juvenile court shall certify the charge, and all ancillary charges, to the grand jury. Such certification shall divest the juvenile court of jurisdiction as to the charge and any ancillary charges. Nothing in this subsection shall divest the juvenile court of jurisdiction over any matters unrelated to such charge and ancillary charges which may otherwise be properly within the jurisdiction of the juvenile court.
If the court does not find probable cause to believe that the juvenile has committed the violent juvenile felony as charged in the petition or warrant or if the petition or warrant is terminated by dismissal in the juvenile court, the attorney for the Commonwealth may seek a direct indictment in the circuit court. If the petition or warrant is terminated by nolle prosequi in the juvenile court, the attorney for the Commonwealth may seek an indictment only after a preliminary hearing in juvenile court.
If the court finds that the juvenile was not fourteen 14
years of age or older at the time of the alleged commission of the offense or
that the conditions specified in subdivision A
1, 2, or 3 of subsection A have
not been met, the case shall proceed as otherwise provided for by law.
E. An indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age. If an indictment is terminated by nolle prosequi, the Commonwealth may reinstate the proceeding by seeking a subsequent indictment.
2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 874 of the Acts of Assembly of 2010 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.