2006 Code of Virginia § 16.1-269.1 - Trial in circuit court; preliminary hearing; direct indictment; remand

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 years ofage or older at the time of an alleged offense is charged with an offensewhich would be a felony if committed by an adult, the court shall, on motionof the attorney for the Commonwealth and prior to a hearing on the merits,hold a transfer hearing and may retain jurisdiction or transfer such juvenilefor proper criminal proceedings to the appropriate circuit court havingcriminal jurisdiction of such offenses if committed by an adult. Any transferto 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 thejuvenile and his parent, guardian, legal custodian or other person standingin loco parentis; or attorney;

2. The juvenile court finds that probable cause exists to believe that thejuvenile committed the delinquent act as alleged or a lesser includeddelinquent act which would be a felony if committed by an adult;

3. The juvenile is competent to stand trial. The juvenile is presumed to becompetent and the burden is on the party alleging the juvenile is notcompetent to rebut the presumption by a preponderance of the evidence; and

4. The court finds by a preponderance of the evidence that the juvenile isnot a proper person to remain within the jurisdiction of the juvenile court.In determining whether a juvenile is a proper person to remain within thejurisdiction of the juvenile court, the court shall consider, but not belimited to, the following factors:

a. The juvenile's age;

b. The seriousness and number of alleged offenses, including (i) whether thealleged offense was committed in an aggressive, violent, premeditated, orwillful manner; (ii) whether the alleged offense was against persons orproperty, with greater weight being given to offenses against persons,especially if death or bodily injury resulted; (iii) whether the maximumpunishment for such an offense is greater than twenty years confinement ifcommitted by an adult; (iv) whether the alleged offense involved the use of afirearm or other dangerous weapon by brandishing, threatening, displaying orotherwise employing such weapon; and (v) the nature of the juvenile'sparticipation in the alleged offense;

c. Whether the juvenile can be retained in the juvenile justice system longenough for effective treatment and rehabilitation;

d. The appropriateness and availability of the services and dispositionalalternatives in both the criminal justice and juvenile justice systems fordealing with the juvenile's problems;

e. The record and previous history of the juvenile in this or otherjurisdictions, including (i) the number and nature of previous contacts withjuvenile or circuit courts, (ii) the number and nature of prior periods ofprobation, (iii) the number and nature of prior commitments to juvenilecorrectional centers, (iv) the number and nature of previous residential andcommunity-based treatments, (v) whether previous adjudications andcommitments were for delinquent acts that involved the infliction of seriousbodily injury, and (vi) whether the alleged offense is part of a repetitivepattern of similar adjudicated offenses;

f. Whether the juvenile has previously absconded from the legal custody of ajuvenile correctional entity in this or any other jurisdiction;

g. The extent, if any, of the juvenile's degree of mental retardation ormental 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 thecourt failed to consider any of the factors specified in subdivision A 4 ofthis section.

B. The juvenile court shall conduct a preliminary hearing whenever a juvenilefourteen 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 violationof 18.2-51.2.

C. The juvenile court shall conduct a preliminary hearing whenever a juvenilefourteen 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, abduction inviolation 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 inviolation of 18.2-54.2, robbery in violation of 18.2-58 or carjacking inviolation of 18.2-58.1, rape in violation of 18.2-61, forcible sodomy inviolation of 18.2-67.1 or object sexual penetration in violation of 18.2-67.2, provided the attorney for the Commonwealth gives written notice ofhis intent to proceed pursuant to this subsection. The notice shall be filedwith the court and mailed or delivered to counsel for the juvenile or, if thejuvenile is not then represented by counsel, to the juvenile and a parent,guardian or other person standing in loco parentis with respect to thejuvenile at least seven days prior to the preliminary hearing. If theattorney for the Commonwealth elects not to give such notice, or if he electsto withdraw the notice prior to certification of the charge to the grandjury, he may proceed as provided in subsection A.

D. Upon a finding of probable cause pursuant to a preliminary hearing undersubsection B or C, the juvenile court shall certify the charge, and allancillary charges, to the grand jury. Such certification shall divest thejuvenile court of jurisdiction as to the charge and any ancillary charges.Nothing in this subsection shall divest the juvenile court of jurisdictionover any matters unrelated to such charge and ancillary charges which mayotherwise be properly within the jurisdiction of the juvenile court.

If the court does not find probable cause to believe that the juvenile hascommitted the violent juvenile felony as charged in the petition or warrantor if the petition or warrant is terminated by dismissal in the juvenilecourt, the attorney for the Commonwealth may seek a direct indictment in thecircuit court. If the petition or warrant is terminated by nolle prosequi inthe juvenile court, the attorney for the Commonwealth may seek an indictmentonly after a preliminary hearing in juvenile court.

If the court finds that the juvenile was not fourteen years of age or olderat the time of the alleged commission of the offense or that the conditionsspecified in subdivision 1, 2, or 3 of subsection A have not been met, thecase shall proceed as otherwise provided for by law.

E. An indictment in the circuit court cures any error or defect in anyproceeding held in the juvenile court except with respect to the juvenile'sage. If an indictment is terminated by nolle prosequi, the Commonwealth mayreinstate the proceeding by seeking a subsequent indictment.

(1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 862.)