AG 1999 01 19 - Laserfiche WebLink

Home Browse Search

Administration of Justice Bulletin No. 98/03 December 1998 Even if the court on motion of a party or its own motion, closes a hearing or part of a hearing, it may allow any victim, member of a victim's family, law enforcement officer, witness or other person directly revolved in the hearing to be present. Probable Cause and Transfer Hearings The code retains many of the former law's provi- sions relating to probable cause hearings and the trans- fer of cases to superior court. It continues to require the court (1) to conduct a probable cause hearing in any case in which a juvenile is alleged to be delinquent for conUmttmg a felony offense while age thirteen. fourteen~ or f'tfteen: (2) upon finding probable cause to believe that the juvenile committed first-degree mur- der, to transfer the case to superior court for trial as in the case of an adult: and (3) upon t-mdmg probable cause in other cases, to determine on a case by case basis whether the juvenile should remare in juvenile court or be transferred to superior court for trial. The new code also contains several substantial changes. It adds a time limit, requiring that the prob- able cause hearing be held within fifteen days after the juvenile's first appearance unless the court continues it for good cause. It clarifies that the court may transfer a case to superior court on the court's own motion as well as on the motion of the prosecutor or of the jure- nile's counsel, It specifies that the probable cause hearing and the hearing on transfer to superior court are separate. They may occur on the same day, how- ever. unless the juvenile has not received at least five days' notice of the intent to seek transfer and requests a continuance. Former law required the court to determine whether the needs of the juvenile or the best interest of the State would be served by transferring the case to superior court. The new code requires the court to determine whether the protection of the public and the needs of the juvenile would be served by transfer. Unlike former law, which provided no further gmd- ance regarding decisions to transfen it requires the court to consider the following: 1. thejuvenile's age: 2. thejuveniie's maturity.; 3. the juvenile's intellectual functioning; 4. the juvenile's prior record; 5. prior attempts to rehabilitate the juvenile; 6. facilities or programs available to the court during the time it would have jurisdiction over the juvenile, and the likelihood t~at the juvenile would benefit from treatment or re- habilitafive efforts; 7. whether the alleged offense .was committed in an aggressive, violent, premeditated, or will- ful manner, and 8. the seriousness of the offense and whether the protection of the public requires that the juve- nile be prosecuted as an adult. The new law does not require the court to make findings of fact regarding these factors; however, it retains the requirement that any order of transfer spec- ify the reasons for transfer. Appeal of Transfer Order A substantial change from former law allows the juvenile to appeal the district court's transfer order to superior court for a heanng on the record. Notice of appeal must be given in open court or in writing within ten days after the transfer hearing. If the juvenile does not appeal, he or she may not raise the issue of transfer before the court of appends after final disposition of the case in superior court. If notice of appeal is given and not withdrawn within the ten-day period, the superior court, within a reasonable time, must review the record of the transfer hearing for abuse of discretion in trans- ferring the case to superior court The superior court may not review the district court's probable cause findings. ARer reviewing the record, the superior court must either remand the case to juvenile court for adjudica- tion or uphold the transfer order. The order of the supe- rior court is interlocutory, and the issue of transfer ma5' be appealed to the court of appeals only after the juve- nile has been convicted in superior court. If the supe- rior court remands the.case, the district court deter- mines whether the juvenile should be in secure or non- secure custody pending adjudication. These provisions nullify, the effect of a state su- preme court decision interpreting the former statute. In State v. 7~D.R., 347 N.C. 489, 495 S.E2d 700 (1998), the court held (1) that an order transferring ajuvenile's case to superior court was a final order that the juve- nile could appeal immediately to the court of appeals. and (2) that the superior court did not have authority, to conduct appellate review of the district court's transfer order. 16