§ 10A-2-2-403. Preliminary hearing.

A.  Except as otherwise provided by law, if a child is charged with a delinquent act as a result of an offense which would be a felony if committed by an adult, the court on its own motion or at the request of the district attorney shall conduct a preliminary hearing to determine whether or not there is prosecutive merit to the complaint.  If the court finds that prosecutive merit exists, it shall continue the hearing for a sufficient period of time to conduct an investigation and further hearing to determine if the child should be held accountable for acts of the child as if the child were an adult if the child should be found to have committed the alleged act or omission.

Consideration shall be given to:

1.  The seriousness of the alleged offense to the community, and whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

2.  Whether the offense was against persons or property, greater weight being given to transferring the accused person to the adult criminal justice system for offenses against persons and, if personal injury resulted, the degree of personal injury;

3.  The sophistication and maturity of the juvenile and capability of the juvenile of distinguishing right from wrong as determined by consideration of a psychological evaluation of the juvenile, home, environmental situation, emotional attitude and pattern of living;

4.  The record and previous history of the accused person, including previous contacts with community agencies, law enforcement agencies, schools, juvenile or criminal courts and other jurisdictions, prior periods of probation or prior commitments to juvenile institutions;

5.  The prospects for adequate protection of the public;

6.  The likelihood of reasonable rehabilitation of the juvenile if the juvenile is found to have committed the alleged offense, by the use of procedures and facilities currently available to the juvenile court; and

7.  Whether the offense occurred while the juvenile was escaping or in an escape status from an institution for delinquent children.

After the investigation and hearing, the court may in its discretion proceed with the juvenile proceeding, or it shall state its reasons in writing and shall certify, based on clear and convincing evidence, that the child shall be held accountable for acts of the child as if the child were an adult and shall be held for proper criminal proceedings for the specific offense charged, by any other division of the court which would have trial jurisdiction of the offense if committed by an adult.  The juvenile proceeding shall not be dismissed until the criminal proceeding has commenced and if no criminal proceeding commences within thirty (30) days of the date of the certification, unless stayed pending appeal, the court shall proceed with the juvenile proceeding and the certification shall lapse.

If not included in the original summons, notice of a hearing to consider whether a child should be certified for trial as an adult shall be given to all persons who are required to be served with a summons at the commencement of a juvenile proceeding, but publication in a newspaper when the address of a person is unknown is not required.  The purpose of the hearing shall be clearly stated in the notice.

B.  Prior to the entry of any order of certification, any child in custody shall have the same right to be released upon bail as would an adult under the same circumstances.  Subsequent to the entry of an order that a child stand trial as an adult, the child shall have all the statutory and constitutional rights and protections of an adult accused of a crime but shall, while awaiting trial and for the duration of the trial, be detained in a jail cell or ward entirely separate from prisoners who are eighteen (18) years of age or over.  Upon conviction, the juvenile may be incarcerated with the adult population.  If, prior to the entry of any order of certification, the child becomes eighteen (18) years of age, the child may be detained in a county jail or released on bail.  If a child is certified to stand trial as an adult, the court shall make every effort to avoid duplication of the adult preliminary hearing and the prosecutorial hearing in the juvenile certification process.  The parties may jointly stipulate to the court that the record for the prosecutorial merit hearing in the juvenile proceeding be used for all or part of the preliminary hearing.

C.  Any child who has been certified to stand trial as an adult pursuant to any order entered by any competent court of this state or any other state shall be tried as an adult in all subsequent criminal prosecutions, and shall not be subject to the jurisdiction of the juvenile court or be eligible to be tried as a youthful offender in any further proceedings.

D.  An order either certifying a person as a child or an adult pursuant to subsection A of this section or denying such certification shall be a final order, appealable when entered and shall not be modified.

Added by Laws 1968, c. 282, § 112, eff. Jan. 13, 1969.  Amended by Laws 1973, c. 227, § 1, emerg. eff. May 24, 1973; Laws 1974, c. 272, § 2, emerg. eff. May 29, 1974; Laws 1977, c. 79, § 2; Laws 1978, c. 231, § 2, eff. Oct. 1, 1978; Laws 1979, c. 257, § 4, eff. Oct. 1, 1979; Laws 1981, c. 141, § 1; Laws 1988, c. 76, § 2, emerg. eff. March 25, 1988; Laws 1989, c. 363, § 7, eff. Nov. 1, 1989; Laws 1993, c. 342, § 7, eff. July 1, 1993; Laws 1994, c. 290, § 39, eff. July 1, 1994; Laws 1995, c. 352, § 126, eff. July 1, 1995.  Renumbered from § 1112 of Title 10 by Laws 1995, c. 352, § 199, eff. July 1, 1995.  Amended by Laws 1997, c. 293, § 17, eff. July 1, 1997; Laws 2004, c. 75, § 1, eff. Nov. 1, 2004; Laws 2009, c. 234, § 49, emerg. eff. May 21, 2009.  Renumbered from § 7303-4.3 of Title 10 by Laws 2009, c. 234, § 180, emerg. eff. May 21, 2009.

Note

NOTE:  Laws 1974, c. 35, § 1 repealed by Laws 1974, c. 272, § 3, emerg. eff. May 29, 1974.