Download this document in WordPerfect 6.1 format

NO. 116. AN ACT RELATING TO BLENDED SENTENCES FOR YOUTHFUL OFFENDERS.

(S.162)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 4 V.S.A. § 454 is amended to read:

§ 454. JURISDICTION

Notwithstanding any other provision of law to the contrary, the family court shall have exclusive jurisdiction to hear and dispose of the following proceedings filed or pending on or after October 1, 1990. The family court shall also have exclusive jurisdiction to hear and dispose of any requests to modify or enforce any orders issued by the district or superior court relating to the following proceedings:

* * *

(8) All juvenile proceedings filed pursuant to chapter 55 of Title 33, including matters involving "youthful offenders" as that term is defined by 33 V.S.A. § 5502(18) whether the matter originated in the district or the family court.

* * *

Sec. 2. 33 V.S.A. § 5502(a)(18) is added to read:

(18) A "youthful offender" means an offender who has been found to be a youthful offender pursuant to section 5529b of this title.

Sec. 3. 33 V.S.A. § 5504(b) is amended to read:

(b) *[The juvenile court, in its discretion, may retain jurisdiction over a child up to twenty-one years of age if the child has been found to have committed a delinquent act and if the child has attained the age of 18 on or before July 1, 1996.]* The family court may retain jurisdiction over a youthful offender up to the age of 19.

Sec. 4. 33 V.S.A. § 5505(e) and (f) are added to read:

(e) A defendant in a criminal proceeding who has attained the age of 14 but not the age of 16 at the time an offense specified in subsection 5506(a) of this title is alleged to have been committed, may file a motion requesting treatment as a youthful offender. The court may transfer the proceeding to family court for youthful offender adjudication if it finds that:

(1) the defendant enters a plea of guilty or nolo contendere to the offense charged pursuant to Rule 11 of the Vermont Rules of Criminal Procedure;

(2) the defendant is amenable to treatment or rehabilitation as a youthful offender; and

(3) public safety will be secured by treating the defendant as a youthful offender.

(f) If the state elects to file charges in criminal court pursuant to subsection (c) of this section, the defendant may file a motion requesting treatment as a youthful offender. The court may transfer the proceeding to family court if it finds that:

(1) the defendant has previously been adjudicated a delinquent child or has previously been convicted of a crime;

(2) the defendant enters a plea of guilty or nolo contendere to the offense charged pursuant to Rule 11 of the Vermont Rules of Criminal Procedure;

(3) the defendant is amenable to treatment or rehabilitation as a youthful offender; and

(4) public safety will be secured by treating the defendant as a youthful offender.

Sec. 5. 33 V.S.A. §§ 5529b, 5529c, 5529d, 5529e and 5529f are added to read:

§ 5529b. DISPOSITION OF YOUTHFUL OFFENDERS

(a) Upon the transfer of a case pursuant to subsection 5505(e) or (f) of this title, the court shall impose sentence. That sentence shall then be suspended and replaced with a juvenile disposition pursuant to section 5529 of this title.

(b) Copies of all records relating to the criminal sentence imposed under subsection (a) of this section shall be forwarded to the district court and filed in the defendant's criminal case file.

(c) In determining an appropriate disposition, the court shall obtain input from the child's parents, custodians or guardians, teachers, treatment providers, clergy, and all other persons that the court deems necessary. Upon the imposition of a criminal sentence, the jurisdiction of the family court shall cease and thereafter shall be assumed by the district court.

(d) When practicable, the same judge who granted the motion requesting treatment asa youthful offender shall impose sentence and disposition under this section.

§ 5529c. MODIFICATION OR REVOCATION OF DISPOSITION

If, after a hearing, the court finds that a youthful offender has violated the terms of the disposition order, the court may modify the disposition order, or may impose the criminal sentence. Upon the imposition of a criminal sentence, the jurisdiction of the family court shall cease and thereafter shall be assumed by the district court.

§ 5529d. REVIEW PRIOR TO THE AGE OF 18

(a) The family court shall review the youthful offender's case before the youthful offender reaches the age of 18 to determine if the court's jurisdiction over the youthful offender should be continued past the age of 18.

(b) After receiving a notice of review under this section, the state may file a motion to modify or revoke pursuant to section 5529c of this title. If such a motion is filed it shall be consolidated with the review under this section and all options provided for under section 5529c of this title shall be available to the court.

(c) If the court finds that it is in the best interest of the youthful offender to continue the case past the age of 18 and if the court finds, based on evidence submitted by the department of social and rehabilitation services, that Title IV-E funds and sufficient state matching funds are available to provide services to the youthful offender, it shall make an order continuing the court's jurisdiction up to the age of 19.

(d) If the court finds that it is not in the best interest of the youthful offender to continue the case past the age of 18 it shall terminate the disposition order and discharge the youthful offender and dismiss the criminal case.

§ 5529e. TERMINATION OR CONTINUANCE OF DISPOSITION

(a) If the youthful offender successfully completes the juvenile disposition, on motion, the court shall hold a hearing to determine whether the youthful offender has been rehabilitated, and the youthful offender shall bear the burden of so proving by a preponderance of the evidence. Successful completion of the disposition shall create a rebuttable presumption that the youthful offender has been rehabilitated. If the youthful offender meets this burden, the burden is then on the state to show otherwise by clear and convincing evidence.

(b) In determining whether a youthful offender has been sufficiently rehabilitated, the court shall base its finding on:

(1) the youthful offender's performance during treatment;

(2) reports of treatment personnel; and

(3) any other relevant facts associated with the youthful offender's behavior.

(c) If the court finds that the youthful offender has successfully completed the terms of the juvenile disposition order and has been rehabilitated, it shall terminate the disposition order, discharge the youthful offender and dismiss the criminal case.

(d) Upon discharge and dismissal under subsection (c) of this section, the records of the criminal case and juvenile proceeding shall be sealed.

(e) If the court finds that the youthful offender has not successfully completed the terms of the disposition or has not been sufficiently rehabilitated, it may extend the disposition or impose the criminal sentence.

§ 5529f. RIGHTS OF VICTIMS IN YOUTHFUL OFFENDER PROCEEDINGS

(a) The victim in a proceeding involving a youthful offender shall have the following rights:

(1) to be notified by the prosecutor in a timely manner when a court proceeding is scheduled to take place and when a court proceeding to which he or she has been notified will not take place as scheduled;

(2) to be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or her views concerning the offense and the youthful offender;

(3) to request notification by the agency having custody of the youthful offender before the youthful offender is released from a residential facility;

(4) to be notified by the prosecutor as to the final disposition of the case; and

(5) to be notified by the prosecutor of the victim's rights under this section.

(b) In accordance with court rules, at the disposition hearing of a youthful offender, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition. In ordering disposition, the court shall consider any views offered at the hearing by the victim. If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.

(c) No youthful offender proceeding shall be delayed or voided by reason of the failure to give the victim the required notice or the failure of the victim to appear.

(d) For purposes of this section "victim" shall mean the same as defined in subdivision 5301(4) of Title 13.

Sec. 6. 33 V.S.A. § 5506(a) is amended to read:

(a) After a petition has been filed alleging delinquency, upon motion of the state's attorney and after hearing, the juvenile court may transfer jurisdiction of the proceeding to a court of criminal jurisdiction, if the child had attained the age of 10 but not the age of 14 at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:

(1) arson causing death as defined in 13 V.S.A. § 501;

(2) assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b);

(3) assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c);

(4) aggravated assault as defined in 13 V.S.A. § 1024;

(5) murder as defined in 13 V.S.A. § 2301;

(6) manslaughter as defined in 13 V.S.A. § 2304;

(7) kidnaping as defined in 13 V.S.A. *[§ 2401, 2402 or 2403]* § 2405;

(8) unlawful restraint as defined in 13 V.S.A. §§ 2406 and 2407;

(12) burglary into an occupied dwelling as defined in 12 V.S.A. § 1201(c).

Sec. 7. FISCAL IMPACT STUDY AND REPORTS

(a) On January 15, 1999, and annually thereafter, the commissioner of social and rehabilitation services and the court administrator shall report to the House and Senate Committees on Judiciary and Appropriations on the following:

(1) Any problems encountered by the department of social and rehabilitation services, the courts and the attorneys for the state and youthful offenders in implementing this act.

(2) The number of motions requesting treatment as a youthful offender filed and the outcome in each case.

(3) The number of cases in which the court continued its jurisdiction after the youthful offender attained the age of 18.

(4) Copies of any trial court or supreme court published decisions involving this act.

(5) The amount expended on behalf of youthful offenders, including a breakdown and description of the services purchased and the age of the youthful offender.

(6) Any recommended changes in the law.

(b) On January 15, 2000, the department of social and rehabilitation services and the department of corrections shall submit a report to the General Assembly on the fiscal impact of the youth offenders program.

(c) The obligation to submit reports and results of studies pursuant to this section shall expire on July 1, 2001.

Sec. 8. APPROPRIATION

The sum of $100,000.00 is appropriated from the general fund and the sum of $150,000.00 is appropriated in federal funds to the Department of Social and Rehabilitation Services in fiscal year 1999 to accomplish the purpose of this act. Notwithstanding the provisions of 32 V.S.A. § 706, none of the above appropriation may be transferred to any other appropriation.

Approved: April 27, 1998