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PAG LIN 1 1 Section 1. Section 232.8, subsection 3, Code Supplement 1 2 1995, is amended to read as follows: 1 3 3. The juvenile court, after a hearing and in accordance 1 4 with the provisions of section 232.45, may waive jurisdiction 1 5 of a child alleged to have committed a public offense so that 1 6 the child may be prosecuted as an adult or youthful offender 1 7 for such offense in another court. If the child, except a 1 8 child being prosecuted as a youthful offender, pleads guilty 1 9 or is found guilty of a public offense in another court of 1 10 this state that court may, with the consent of the child, 1 11 defer judgment and without regard to restrictions placed upon 1 12 deferred judgments for adults, place the child on probation 1 13 for a period not less than one year upon such conditions as it 1 14 may require. Upon fulfillment of the conditions of probation 1 15 the child shall be discharged without entry of judgment. 1 16 Sec. 2. NEW SECTION. 232.23 DETENTION – YOUTHFUL 1 17 OFFENDERS. 1 18 1. After waiver of a child who will be prosecuted as a 1 19 youthful offender, the child shall be held in a facility under 1 20 section 232.22, subsection 2, paragraph "a" or "b", unless 1 21 released in accordance with subsection 2. 1 22 2. a. The court shall determine, at the detention hearing 1 23 under section 232.44, the amount of bail, appearance bond, or 1 24 other conditions necessary for a child who has been waived for 1 25 prosecution as a youthful offender to be released from 1 26 detention or that the child should not be released from 1 27 detention. 1 28 b. A child placed in detention or released under this 1 29 subsection shall be supervised by a juvenile court officer or 1 30 juvenile court services personnel. 1 31 c. An order under this section may be reviewed by the 1 32 court upon motion of either party. 1 33 Sec. 3. Section 232.44, Code Supplement 1995, is amended 1 34 to read as follows: 1 35 232.44 DETENTION OR SHELTER CARE HEARING – RELEASE FROM 2 1 DETENTION UPON CHANGE OF CIRCUMSTANCE. 2 2 1. A hearing shall be held within forty-eight hours, 2 3 excluding Saturdays, Sundays, and legal holidays, of the time 2 4 of the child's admission to a shelter care facility, and 2 5 within twenty-four hours, excluding Saturdays, Sundays, and 2 6 legal holidays, of the time of a child's admission to a 2 7 detention facility. If the hearing is not held within the 2 8 time specified, the child shall be released from shelter care 2 9 or detention. Prior to the hearing a petition shall be filed, 2 10 except where the child is already under the supervision of a 2 11 juvenile court under a prior judgment. 2 12 If the child is placed in a detention facility in a county 2 13 other than the county in which the child resides or in which 2 14 the delinquent act allegedly occurred but which is within the 2 15 same judicial district, the hearing may take place in the 2 16 county in which the detention facility is located. The child 2 17 shall appear in person at the hearing required by this 2 18 subsection. 2 19 2. The county attorney or a juvenile court officer may 2 20 apply for a hearing at any time after the petition is filed to 2 21 determine whether the child who is the subject of the petition 2 22 should be placed in detention or shelter care. The court may 2 23 upon the application or upon its own motion order such 2 24 hearing. The court shall order a detention hearing for a 2 25 child waived under section 232.45, subsection 6A, at the time 2 26 of waiver. 2 27 3. A notice shall be served upon the child, the child's 2 28 attorney, the child's guardian ad litem if any, and the 2 29 child's known parent, guardian, or custodian not less than 2 30 twelve hours before the time the hearing is scheduled to begin 2 31 and in a manner calculated fairly to apprise the parties of 2 32 the time, place, and purpose of the hearing. In the case of a 2 33 hearing for a child waived for prosecution as a youthful 2 34 offender, this notice may accompany the waiver order. If the 2 35 court finds that there has been reasonably diligent effort to 3 1 give notice to a parent, guardian, or custodian and that the 3 2 effort has been unavailing, the hearing may proceed without 3 3 the notice having been served. 3 4 4. At the hearing to determine whether detention or 3 5 shelter care is authorized under section 232.21 or 232.22 the 3 6 court shall admit only testimony and other evidence relevant 3 7 to the determination of whether there is probable cause to 3 8 believe the child has committed the act as alleged in the 3 9 petition and to the determination of whether the placement of 3 10 the child in detention or shelter care is authorized under 3 11 section 232.21 or 232.22. At the hearing to determine whether 3 12 a child who has been waived for prosecution as a youthful 3 13 offender should be released from detention the court shall 3 14 also admit evidence of the kind admissible to determine bond 3 15 or bail under chapter 811.1, notwithstanding section 811.1. 3 16 Any written reports or records made available to the court at 3 17 the hearing shall be made available to the parties. A copy of 3 18 the petition or waiver order shall be given to each of the 3 19 parties at or before the hearing. 3 20 5. The court shall find release to be proper under the 3 21 following circumstances: 3 22 a. If the court finds that there is not probable cause to 3 23 believe that the child is a child within the jurisdiction of 3 24 the court under this chapter, it shall release the child and 3 25 dismiss the petition. 3 26 b. If the court finds that detention or shelter care is 3 27 not authorized under section 232.21 or 232.22, or is 3 28 authorized but not warranted in a particular case, the court 3 29 shall order the child's release, and in so doing, may impose 3 30 one or more of the following conditions: 3 31 (1) Place the child in the custody of a parent, guardian 3 32 or custodian under that person's supervision, or under the 3 33 supervision of an organization which agrees to supervise the 3 34 child. 3 35 (2) Place restrictions on the child's travel, association, 4 1 or place of residence during the period of release. 4 2 (3) Impose any other condition deemed reasonably necessary 4 3 and consistent with the grounds for detaining children 4 4 specified in section 232.21 or 232.22, including a condition 4 5 requiring that the child return to custody as required. 4 6 (4) In the case of a child waived for prosecution as a 4 7 youthful offender, require bail, an appearance bond, or set 4 8 other conditions consistent with this section or section 4 9 811.2. 4 10 c. An order releasing a child on conditions specified in 4 11 this section may be amended at any time to impose equally or 4 12 less restrictive conditions. The order may be amended to 4 13 impose additional or more restrictive conditions, or to revoke 4 14 the release, if the child has failed to conform to the 4 15 conditions originally imposed. 4 16 6. If the court finds that there is probable cause to 4 17 believe that the child is within the jurisdiction of the court 4 18 under this chapter and that full-time detention or shelter 4 19 care is authorized under section 232.21 or 232.22 or that 4 20 detention is authorized under section 232.23, it may issue an 4 21 order authorizing either shelter care or detention until the 4 22 adjudicatory hearing or trial is held or for a period not 4 23 exceeding seven days whichever is shorter. However, in the 4 24 case of a child placed in detention under section 232.23, this 4 25 period may be extended by agreement of the parties and the 4 26 court. 4 27 7. If a child held in shelter care or detention by court 4 28 order has not been released after a detention hearing or has 4 29 not appeared at an adjudicatory hearing before the expiration 4 30 of the order of detention, an additional hearing shall 4 31 automatically be scheduled for the next court day following 4 32 the expiration of the order. The child, the child's counsel, 4 33 the child's guardian ad litem, and the child's parent, 4 34 guardian or custodian shall be notified of this hearing not 4 35 less than twenty-four hours before the hearing is scheduled to 5 1 take place. The hearing required by this subsection may be 5 2 held by telephone conference call. 5 3 8. A child held in a detention or shelter care facility 5 4 pursuant to section 232.21 or 232.22 under order of court 5 5 after a hearing may be released upon a showing that a change 5 6 of circumstances makes continued detention unnecessary. 5 7 9. A written request for the release of the child, setting 5 8 forth the changed circumstances, may be filed by the child, by 5 9 a responsible adult on the child's behalf, by the child's 5 10 custodian, or by the juvenile court officer. 5 11 10. Based upon the facts stated in the request for release 5 12 the court may grant or deny the request without a hearing, or 5 13 may order that a hearing be held at a date, time and place 5 14 determined by the court. Notice of the hearing shall be given 5 15 to the child and the child's custodian or counsel. Upon 5 16 receiving evidence at the hearing, the court may release the 5 17 child to the child's custodian or other suitable person, or 5 18 may deny the request and remand the child to the detention or 5 19 shelter care facility. 5 20 11. This section does not apply to a child placed in 5 21 accordance with section 232.78, 232.79, or 232.95. 5 22 Sec. 4. Section 232.45, subsection 1, Code 1995, is 5 23 amended to read as follows: 5 24 1. After the filing of a petition which alleges that a 5 25 child has committed a delinquent act on the basis of an 5 26 alleged commission of a public offense and before an 5 27 adjudicatory hearing on the merits of the petition is held, 5 28 the county attorney or the child may file a motion requesting 5 29 the court to waive its jurisdiction over the child for the 5 30 alleged commission of the public offense. If the county 5 31 attorney and the child agree, a motion for waiver for the 5 32 purpose of being prosecuted as a youthful offender may be 5 33 heard by the court which will have jurisdiction over the 5 34 criminal proceedings involving the child. 5 35 Sec. 5. Section 232.45, Code 1995, is amended by adding 6 1 the following new subsection: 6 2 NEW SUBSECTION. 6A. At the conclusion of the waiver 6 3 hearing and after considering the best interests of the child 6 4 and the best interests of the community the court may, in 6 5 order that the child may be prosecuted as a youthful offender, 6 6 waive its jurisdiction over the child if all of the following 6 7 apply: 6 8 a. The child is fifteen years of age or younger. 6 9 b. The court determines, or has previously determined in a 6 10 detention hearing under section 232.44, that there is probable 6 11 cause to believe that the child has committed a delinquent act 6 12 which would constitute a public offense under section 232.8, 6 13 subsection 1, paragraph "c", notwithstanding the application 6 14 of that paragraph to children aged sixteen or older. 6 15 c. The court determines that the state has established 6 16 that there are not reasonable prospects for rehabilitating the 6 17 child, prior to the child's eighteenth birthday, if the 6 18 juvenile court retains jurisdiction over the child and the 6 19 child enters into a plea agreement, is a party to a consent 6 20 decree, or is adjudicated to have committed the delinquent 6 21 act. 6 22 The court shall retain jurisdiction over the child for the 6 23 purpose of determining whether the child should be released 6 24 from detention under section 232.23. 6 25 Sec. 6. Section 232.45, Code 1995, is amended by adding 6 26 the following new subsection: 6 27 NEW SUBSECTION. 7A. In making the determination required 6 28 by subsection 6A, paragraph "c", the factors which the court 6 29 shall consider include but are not limited to the following: 6 30 a. The nature of the alleged delinquent act and the 6 31 circumstances under which it was committed. 6 32 b. The nature and extent of the child's prior contacts 6 33 with juvenile authorities, including past efforts of such 6 34 authorities to treat and rehabilitate the child and the 6 35 response to such efforts. 7 1 c. The age of the child, the programs, facilities, and 7 2 personnel available to the juvenile court for rehabilitation 7 3 and treatment of the child, and the programs, facilities, and 7 4 personnel which would be available to the district court after 7 5 the child reaches the age of eighteen in the event the child 7 6 is given youthful offender status. 7 7 Sec. 7. Section 232.45, subsection 10, Code 1995, is 7 8 amended to read as follows: 7 9 10. If the court waives its jurisdiction over the child 7 10 for the alleged commission of the public offense so that the 7 11 child may be prosecuted as an adult or a youthful offender, 7 12 the judge who made the waiver decision shall not preside at 7 13 any subsequent proceedings in connection with that prosecution 7 14 if the child objects. 7 15 Sec. 8. Section 232.45A, Code Supplement 1995, is amended 7 16 by adding the following new subsection: 7 17 NEW SUBSECTION. 4. This section shall not apply to a 7 18 child who was waived to the district court for the purpose of 7 19 being prosecuted as a youthful offender. 7 20 Sec. 9. Section 232.50, subsection 1, Code 1995, is 7 21 amended to read as follows: 7 22 1. As soon as practicable following the entry of an order 7 23 of adjudication pursuant to section 232.47 or notification 7 24 that the child has received a youthful offender deferred 7 25 sentence pursuant to section 907.3A, the court shall hold a 7 26 dispositional hearing in order to determine what disposition 7 27 should be made of the matter. 7 28 Sec. 10. Section 232.52, subsection 1, Code Supplement 7 29 1995, is amended to read as follows: 7 30 1. Pursuant to a hearing as provided in section 232.50, 7 31 the court shall enter the least restrictive dispositional 7 32 order appropriate in view of the seriousness of the delinquent 7 33 act, the child's culpability as indicated by the circumstances 7 34 of the particular case, the age of the child,andthe child's 7 35 prior record, or the fact that the child has received a 8 1 youthful offender deferred sentence under section 907.3A. The 8 2 order shall specify the duration and the nature of the 8 3 disposition, including the type of residence or confinement 8 4 ordered and the individual, agency, department or facility in 8 5 whom custody is vested. In the case of a child who has 8 6 received a youthful offender deferred sentence, the initial 8 7 duration of the dispositional order shall be until the child 8 8 reaches the age of eighteen. 8 9 Sec. 11. Section 232.54, Code Supplement 1995, is amended 8 10 by adding the following new subsections: 8 11 NEW SUBSECTION. 7. With respect to a juvenile court 8 12 dispositional order entered regarding a child who has received 8 13 a youthful offender deferred sentence under section 907.3A, 8 14 the dispositional order may be terminated prior to the child 8 15 reaching the age of eighteen upon motion of the child, the 8 16 person or agency to whom custody of the child has been 8 17 transferred, or the county attorney following a hearing before 8 18 the juvenile court if it is shown by clear and convincing 8 19 evidence that it is in the best interests of the child and the 8 20 community to terminate the order. The district court shall 8 21 discharge the child's youthful offender status upon receiving 8 22 a termination order under this section. 8 23 NEW SUBSECTION. 8. With respect to a dispositional order 8 24 entered regarding a child who has received a youthful offender 8 25 deferred sentence under section 907.3A, the juvenile court 8 26 may, in the case of a child who violates the terms of the 8 27 order, modify or terminate the order in accordance with the 8 28 following: 8 29 a. After notice and hearing at which the facts of the 8 30 child's violation of the terms of the order are found, the 8 31 juvenile court may refuse to modify the order, modify the 8 32 order and impose a more restrictive order, or, after an 8 33 assessment of the child by a juvenile court officer in 8 34 consultation with the judicial district department of 8 35 correctional services and if the child is age fourteen or 9 1 over, terminate the order and return the child to the 9 2 supervision of the district court under chapter 907. 9 3 b. The juvenile court shall only terminate an order under 9 4 this subsection if after considering the best interests of the 9 5 child and the best interests of the community the court finds 9 6 that the child should be returned to the supervision of the 9 7 district court. 9 8 c. A youthful offender over whom the juvenile court has 9 9 terminated the dispositional order under this subsection shall 9 10 be treated in the manner of an adult who has been arrested for 9 11 a violation of probation under section 908.11 for sentencing 9 12 purposes only. 9 13 Sec. 12. Section 232.55, Code 1995, is amended by adding 9 14 the following new unnumbered paragraph: 9 15 NEW UNNUMBERED PARAGRAPH. This section does not apply to 9 16 dispositional orders entered regarding a child who has 9 17 received a youthful offender deferred sentence under section 9 18 907.3A who is not discharged from probation before or upon the 9 19 child's eighteenth birthday. 9 20 Sec. 13. NEW SECTION. 232.56 YOUTHFUL OFFENDERS – 9 21 TRANSFER TO DISTRICT COURT SUPERVISION. 9 22 The juvenile court shall deliver a report, which includes 9 23 an assessment of the child by a juvenile court officer after 9 24 consulting with the judicial district department of 9 25 correctional services, to the district court prior to the 9 26 eighteenth birthday of a child who has received a youthful 9 27 offender deferred sentence under section 907.3A. A hearing 9 28 shall be held in the district court in accordance with section 9 29 907.3A to determine whether the child should be discharged 9 30 from youthful offender status or whether the child shall 9 31 continue under the supervision of the district court after the 9 32 child's eighteenth birthday. 9 33 Sec. 14. Section 602.1211, subsection 4, Code 1995, is 9 34 amended to read as follows: 9 35 4. A chief judge may designate other public officers to 10 1 accept bond money or security under section 232.23 or 811.2 at 10 2 times when the office of the clerk of court is not open. 10 3 Sec. 15. NEW SECTION. 907.3A YOUTHFUL OFFENDER DEFERRED 10 4 SENTENCE – YOUTHFUL OFFENDER STATUS. 10 5 1. Notwithstanding section 907.3, the trial court shall, 10 6 upon a plea of guilty or a verdict of guilty, defer sentence 10 7 of a youthful offender over whom the juvenile court has waived 10 8 jurisdiction pursuant to section 232.45, subsection 6A, and 10 9 place the juvenile on youthful offender status. The court 10 10 shall transfer supervision of the youthful offender to the 10 11 juvenile court for disposition in accordance with section 10 12 232.52. The court shall require supervision of the youthful 10 13 offender in accordance with section 232.54, subsection 8 or 10 14 subsection 2 of this section. 10 15 2. The court shall hold a hearing prior to a youthful 10 16 offender's eighteenth birthday to determine whether the 10 17 youthful offender shall continue on youthful offender status 10 18 after the youthful offender's eighteenth birthday under the 10 19 supervision of the court or be discharged. The court shall 10 20 review the report of the juvenile court regarding the youthful 10 21 offender and shall hear evidence by or on behalf of the 10 22 youthful offender, by the county attorney, and by the person 10 23 or agency to whom custody of the youthful offender was 10 24 transferred. The court shall make its decision after 10 25 considering the services available to the youthful offender, 10 26 the evidence presented, the juvenile court's report, the 10 27 interests of the youthful offender, and interests of the 10 28 community. 10 29 3. Notwithstanding any provision of this Code which 10 30 prescribes a mandatory minimum sentence for the offense 10 31 committed by the youthful offender, following transfer of the 10 32 youthful offender from the juvenile court back to the court 10 33 having jurisdiction over the criminal proceedings involving 10 34 the youthful offender, the court may continue the youthful 10 35 offender deferred sentence or enter a sentence, which may be a 11 1 suspended sentence. However, a youthful offender shall not be 11 2 placed on probation for longer than five years. During the 11 3 period of probation, a youthful offender who violates the 11 4 terms of probation is subject to section 908.11. 11 5 Sec. 16. Section 908.11, Code 1995, is amended to read as 11 6 follows: 11 7 908.11 VIOLATION OF PROBATION. 11 8 A probation officer or the judicial district department of 11 9 correctional services having probable cause to believe that 11 10 any person released on probation has violated the conditions 11 11 of probation shall proceed by arrest or summons as in the case 11 12 of a parole violation. The functions of the liaison officer 11 13 and the board of parole shall be performed by the judge or 11 14 magistrate who placed the alleged violator on probation if 11 15 that judge or magistrate is available, otherwise by another 11 16 judge or magistrate who would have had jurisdiction to try the 11 17 original offense. If the probation officer proceeds by 11 18 arrest, any magistrate may receive the complaint, issue an 11 19 arrest warrant, or conduct the initial appearance and probable 11 20 cause hearing if it is not convenient for the judge who placed 11 21 the alleged violator on probation to do so. The initial 11 22 appearance, probable cause hearing, and probation revocation 11 23 hearing, or any of them, may at the discretion of the court be 11 24 merged into a single hearing when it appears that the alleged 11 25 violator will not be prejudiced thereby. If the violation is 11 26 established, the court may continue the probation or youthful 11 27 offender status with or without an alteration of the 11 28 conditions of probation or youthful offender status. If the 11 29 defendant is an adult or youthful offender the court may hold 11 30 the defendant in contempt of court and sentence the defendant 11 31 to a jail term while continuing the probation or youthful 11 32 offender status, order the defendant to be placed in a 11 33 violator facility established pursuant to section 904.207 11 34 while continuing the probation or youthful offender status, or 11 35 revoke the probation or youthful offender status and require 12 1 the defendant to serve the sentence imposed or any lesser 12 2 sentence, and, if imposition of sentence was deferred, may 12 3 impose any sentence which might originally have been imposed. 12 4 EXPLANATION 12 5 This bill provides for shared jurisdiction between the 12 6 adult and juvenile courts over a juvenile who has committed 12 7 certain crimes. A juvenile who commits certain crimes would 12 8 become subject to the jurisdiction of the district court to be 12 9 tried or to plead guilty as an adult and would receive a 12 10 deferred sentence and be placed on youthful offender probation 12 11 as an adult. The juvenile would then be transferred to the 12 12 supervision of the juvenile court which would enter a 12 13 dispositional order as if it had adjudicated the juvenile a 12 14 delinquent. At the juvenile's eighteenth birthday, unless 12 15 supervision is terminated sooner by the juvenile court, the 12 16 juvenile would be returned to the district court for a hearing 12 17 at which the court will determine whether the juvenile, now an 12 18 adult, should continue on youthful offender status or be 12 19 discharged from youthful offender status as an adult. 12 20 Juveniles eligible for youthful offender status are those 12 21 under the age of 16 who commit drug offenses while possessing 12 22 a firearm or offensive weapon, criminal gang participation 12 23 involving a firearm or offensive weapon, a felony violation of 12 24 chapter 724 regarding firearms or offensive weapons, or a 12 25 forcible felony. These are the same offenses for which 12 26 juveniles age 16 or 17 are excluded from the jurisdiction of 12 27 the juvenile court. 12 28 The bill provides that a juvenile may attain youthful 12 29 offender status through the waiver of jurisdiction process in 12 30 the manner that juveniles are currently waived from the 12 31 jurisdiction of the juvenile court. The juvenile court can 12 32 waive its jurisdiction for the purpose of the juvenile being 12 33 prosecuted as a youthful offender after considering the best 12 34 interests of the child and community, the resources available 12 35 to the juvenile court prior to the juvenile's eighteenth 13 1 birthday, and whether the juvenile should be subject to 13 2 continued court supervision past the juvenile's eighteenth 13 3 birthday. 13 4 A juvenile who is waived for the purpose of being 13 5 prosecuted as a youthful offender would be held in a juvenile 13 6 detention facility prior to trial, unless released on bail. 13 7 Pretrial release conditions, if any, would be determined by 13 8 the juvenile court at a detention hearing. The juvenile will 13 9 be supervised by a juvenile court officer or juvenile court 13 10 services personnel while in detention or on pretrial release. 13 11 In addition, juveniles who receive youthful offender 13 12 deferred sentences shall be subject to the supervision of the 13 13 juvenile court while on youthful offender status until age 18, 13 14 unless the juvenile court sooner terminates its supervision 13 15 because it believes the juvenile has been rehabilitated or the 13 16 juvenile violates the terms of the juvenile court's order. If 13 17 the termination is due to successful rehabilitation, the 13 18 district court must accept the termination. If the 13 19 termination is due to a violation of the terms of the order, 13 20 the juvenile is treated the same as an adult who has been 13 21 arrested for a probation violation. In this case, a juvenile 13 22 could be sentenced as an adult for the youthful offender 13 23 status violation, including the reinstatement of the deferred 13 24 sentence and commitment to the department of corrections. 13 25 The bill provides that if the juvenile is still on youthful 13 26 offender status under juvenile court supervision as the 13 27 juvenile's eighteenth birthday approaches, the juvenile will 13 28 have a hearing before the district court to determine if 13 29 youthful offender status will continue. The district court 13 30 may continue the youthful offender status for the offender 13 31 after age 18 is reached after considering the best interests 13 32 of the offender and the community. At this point, the 13 33 offender will be treated the same as other adults who have 13 34 received a deferred sentence and been placed on probation 13 35 regarding services or placement. However, although the bill 14 1 provides that youthful offenders are to be treated as adults, 14 2 youthful offender deferred sentences will be given for 14 3 offenses which would not be eligible for deferred sentence if 14 4 committed by an adult. 14 5 LSB 3728SV 76 14 6 mk/cf/24.1
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