2020 Nebraska Revised Statutes
Chapter 43 - Infants and Juveniles
43-276 County attorney; city attorney; criminal charge, juvenile court petition, pretrial diversion, restorative justice, or transfer of case; determination; considerations; referral to community-based resources.

43-276. County attorney; city attorney; criminal charge, juvenile court petition, pretrial diversion, restorative justice, or transfer of case; determination; considerations; referral to community-based resources.

(1) The county attorney or city attorney, in making the determination whether to file a criminal charge, file a juvenile court petition, offer juvenile pretrial diversion or restorative justice, or transfer a case to or from juvenile court, and the juvenile court, county court, or district court in making the determination whether to transfer a case, shall consider: (a) The type of treatment such juvenile would most likely be amenable to; (b) whether there is evidence that the alleged offense included violence; (c) the motivation for the commission of the offense; (d) the age of the juvenile and the ages and circumstances of any others involved in the offense; (e) the previous history of the juvenile, including whether he or she had been convicted of any previous offenses or adjudicated in juvenile court; (f) the best interests of the juvenile; (g) consideration of public safety; (h) consideration of the juvenile's ability to appreciate the nature and seriousness of his or her conduct; (i) whether the best interests of the juvenile and the security of the public may require that the juvenile continue in secure detention or under supervision for a period extending beyond his or her minority and, if so, the available alternatives best suited to this purpose; (j) whether the victim or juvenile agree to participate in restorative justice; (k) whether there is a juvenile pretrial diversion program established pursuant to sections 43-260.02 to 43-260.07; (l) whether the juvenile has been convicted of or has acknowledged unauthorized use or possession of a firearm; (m) whether a juvenile court order has been issued for the juvenile pursuant to section 43-2,106.03; (n) whether the juvenile is a criminal street gang member; and (o) such other matters as the parties deem relevant to aid in the decision.

(2) Prior to filing a petition alleging that a juvenile is a juvenile as described in subdivision (3)(b) of section 43-247, the county attorney shall make reasonable efforts to refer the juvenile and family to community-based resources available to address the juvenile's behaviors, provide crisis intervention, and maintain the juvenile safely in the home. Failure to describe the efforts required by this subsection shall be a defense to adjudication.

Source

• Laws 1981, LB 346, § 32;
• Laws 1998, LB 1073, § 22;
• Laws 2000, LB 1167, § 20;
• Laws 2003, LB 43, § 14;
• Laws 2008, LB1014, § 40;
• Laws 2009, LB63, § 30;
• Laws 2012, LB972, § 2;
• Laws 2014, LB464, § 17;
• Laws 2015, LB482, § 5;
• Laws 2019, LB595, § 30.

Annotations

• 1. Factors

• 2. Miscellaneous

• 1. Factors

• In deciding whether to grant the requested waiver and to transfer the proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in the light of the criteria or factors set forth in this section. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

• There is no arithmetical computation or formula required in a court's consideration of the statutory criteria or factors. Also, there are no weighted factors. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

• In determining whether a case should be transferred from juvenile court to criminal court, a juvenile court should consider those factors set forth in this section; there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor. In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d 391 (2018).

• In deciding whether to transfer adult criminal proceedings to juvenile court, the court having jurisdiction must carefully consider the criteria set forth in this section. In weighing the criteria set forth in this section, there is no arithmetical computation or formula required in the court's consideration of the statutory criteria. In order to retain jurisdiction pursuant to section 29-1816, the district court does not need to resolve every factor in this section against the juvenile. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).

• In weighing the factors set forth in this section, there is no arithmetical computation or formula required in the court's consideration of the statutory criteria. In order to retain the proceedings, the court need not resolve every factor against the juvenile. There are no weighted factors and no prescribed method by which more or less weight is assigned to each specific factor. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).

• In deciding whether to transfer adult criminal proceedings to juvenile court, the court having jurisdiction over a pending criminal prosecution must carefully consider the criteria set forth in this section. State v. Reynolds, 247 Neb. 608, 529 N.W.2d 64 (1995).

• Where 16-year-old defendant was charged with violent adult crimes, was an obvious threat to the public, and, if convicted, could not easily be rehabilitated in the juvenile correctional system or properly punished for the atrocities he would be adjudged to have committed, no abuse of discretion occurred in denial of transfer to juvenile court. State v. Garza, 241 Neb. 934, 492 N.W.2d 32 (1992).

• The court having jurisdiction over a pending criminal prosecution of a juvenile must consider the juvenile's request for waiver to transfer the proceedings to the juvenile court in light of the criteria set forth in this section. State v. Doyle, 237 Neb. 944, 468 N.W.2d 594 (1991).

• The factors set forth in this section provide a balancing test by which the protection of the public is weighed against the practical and not problematical rehabilitation of the juvenile. For retention of the criminal proceedings, the court need not resolve every factor against the juvenile. The standard of review applicable to an appeal from denial of a motion to transfer to juvenile court is abuse of discretion. State v. Phinney, 236 Neb. 76, 459 N.W.2d 200 (1990).

• In deciding whether to grant a requested waiver of jurisdiction and transfer proceedings to juvenile court pursuant to section 29-1816, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria set forth in this section. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).

• This section and section 29-1816 provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).

• This section and section 29-1816 involve a balancing test, namely, public protection and societal security weighed against practical and not problematic rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court. Where the record supported the trial court's findings that the crime was violent, that the defendant may require treatment beyond the age of majority, that defendant's rehabilitative needs were beyond the scope of the juvenile court, and that more protection of the public was required than would be available in juvenile court, the district court did not abuse its discretion in retaining jurisdiction. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987).

• Considering the statutory factors on a motion to transfer to juvenile court is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

• In case involving multiple counts of possession of child pornography, the district court properly weighed all applicable statutory factors in denying juvenile defendant's motion to transfer his case to juvenile court; in addition to the fact that there would likely be insufficient time to treat the defendant in the juvenile system before he aged out of the juvenile court's jurisdiction, the district court considered the defendant's maturity, as well as the fact that the motivation for the offenses appeared to be the desire to view and distribute pornography, predominantly involving young children, which preference was potentially associated with someone afflicted with pedophilia. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

• In order to retain juvenile proceedings in the district court, the court does not need to resolve every statutory factor against the juvenile; moreover, there are no weighted factors and no prescribed method by which more or less weight is assigned to each specific factor. State v. Landera, 20 Neb. App. 24, 816 N.W.2d 20 (2012).

• 2. Miscellaneous

• Pursuant to section 29-1816(3)(a), after considering the evidence and the criteria set forth in this section, the court shall transfer the case to juvenile court unless a sound basis exists for retaining the case in county court or district court. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018).

• When a court's basis for retaining jurisdiction over a juvenile is supported by appropriate evidence, it cannot be said that the court abused its discretion in refusing to transfer the case to the juvenile court. State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733 (2009).