Chapter 16: Dismissal to Allow Prosecution of Juvenile Under General Law as an Adult
| Section 16.1 | Generally | |
| Section 16.2 | Age Misrepresentation | |
| Section 16.3 | JUV Section 1.112 Procedure | |
| Section 16.4 |
Consultation with Prosecuting Attorney | |
| Section 16.5 | Required Written Report | |
| Section 16.6 | Mandatory Requirements for Certification Hearings | |
| Section 16.7 | Effect of Dismissal | |
| Section 16.8 | Appeal From Dismissal to Allow Prosecution of Juvenile as an Adult | |
| Section 16.9 | Dual Jurisdiction |
| Section 16.1 Generally |
No child shall be charged with a crime or convicted unless the case is transferred to a court of general jurisdiction. Section 211.271.2, RSMo. The decision of the juvenile division as to whether a petition should be dismissed to allow a child to be transferred to a court of general jurisdiction and to be prosecuted under the general law is a discretionary decision of the juvenile court. Section 211.071, RSMo requires the court to hold a hearing on whether a juvenile should be transferred to a court of general jurisdiction to allow prosecution under the general law if a petition alleges that a child committed any of the following:
1. First Degree Murder under Section 565.020, RSMo.
2. Second Degree Murder under Section 565.021, RSMo.
3. First Degree Assault under Section 565.050, RSMo.
4. Forcible
Rape under Section 566.030, RSMo as it existed prior to August 28, 2013.
5. Forcible
Sodomy under Section 566.060, RSMo as it existed prior to August 28, 2013.
6. First Degree Robbery under Section 569.020, RSMo.
7. Distribution of Drugs under Section 195.211, RSMo.
8. If the juvenile has committed two or more prior unrelated offenses which would be felonies if committed by an adult.
If the juvenile falls within any of the above categories, the court shall order a hearing and may in its discretion dismiss the petition and transfer the child to a court of general jurisdiction for prosecution under the general law. Note that there is no age limit with respect to the above categories. Accordingly, a child at any age who falls within one of the above categories is required to be the subject of a hearing to determine whether he should be transferred to a court of general jurisdiction to allow prosecution under the general law, but the decision to certify or not is discretionary.
In all other cases, dismissal to allow prosecution of the juvenile as an adult under the general law may proceed only if:
1. The child is between the ages of 12 and 17 years of age and
2. The child has committed an offense which would be considered a felony if committed by an adult.
If the petition alleges that a child between the ages of 12 and 17 years of age has committed acts that would constitute a felony if committed by an adult, the court may, upon its own motion or upon motion by the juvenile officer, the child or the child's custodian, order a hearing. After such hearing, the court may, in its discretion, dismiss the petition thereby permitting the child to be transferred to a court of general jurisdiction and prosecuted under the general law. The petition must allege sufficient facts to demonstrate that the juvenile had committed an offense which would be considered a felony if committed by an adult. In State ex rel. D.V. v. Cook, 495 S.W.2d 127 (Mo. App. 1973), a petition alleging that the juvenile "participated in unnecessary aggressive sexual behavior with" a female minor was insufficient to demonstrate the juvenile had committed an offense that would be a felony if committed by an adult. Thus, no jurisdictional basis existed for the juvenile court to order the child to be prosecuted under the general law on the charge of attempted rape.
If a motion to dismiss to permit the juvenile to be prosecuted under the general law as an adult is filed, the juvenile officer shall provide the prosecuting or circuit attorney having jurisdiction with a copy of the motion. Section 211.068, RSMo. The prosecuting or circuit attorney is allowed access to police reports, reports of the juvenile officer, witness statements and all other records or report relating to the offense alleged to have been committed by the child. In addition, the prosecuting or circuit attorney shall have access to the dispositional records of the child when the child has been adjudicated pursuant to subdivision three of subsection 1 of Section 211.031, RSMo (delinquency).
At the hearing on the motion to dismiss, the prosecuting or circuit attorney has a right to be present and to testify as to the likelihood of prosecution under the general law in the event the court dismisses the petition thereby allowing prosecution of the juvenile under the general law. Id. No testimony given by the prosecutor, however, may be used as evidence in any subsequent stage of the juvenile or criminal case. Section 211.068, RSMo.
At the hearing on the motion to dismiss, proof of guilt of the underlying offense is not a pre-requisite to the juvenile court's certification of the juvenile to stand trial as an adult. Hooker v. State, 569 S.W.2d 403 (Mo. App. 1978). See also Brown v. State, 581 S.W.2d 407 (Mo. App. 1979).
| Section 16.2 Age Misrepresentation |
If a juvenile knowingly and willfully misrepresents his age, the same shall not affect any action or proceeding which occurs based upon the misrepresentation. Any evidence obtained during the period of time in which a child misrepresents his age may be used against the child and will be subject only to rules of evidence applicable in adult proceedings. Section 211.071.3, RSMo.
| Section 16.3 JUV Section 1.112 Procedure |
In the event a motion to dismiss to allow prosecution under the general law is filed, written notification of the transfer hearing must be given to the juvenile and his custodian in the manner provided in sections 211.101 and 211.111, RSMo. Said notice may, however, be waived by the custodian.
| Section 16.4 Consultation with Prosecuting Attorney |
The juvenile officer may and should consult with the prosecuting attorney to determine whether the juvenile would be charged and tried as an adult in the event the juvenile officer proceeds with certification. The prosecuting attorney is granted access to police reports, juvenile officer reports, witness statements and other records related to the offense committed by the child as well as prior dispositional records related to acts of delinquency pursuant to Sections 211.068 and 211.071.5, RSMo. The prosecuting attorney, however, is bound by a confidentiality provision and may not disclose or divulge any information regarding the child and the offense until the juvenile court has determined that the child is not a proper subject to be dealt with under the provisions of the juvenile code. Section 211.071.5, RSMo.
| Section 16.5 Required Written Report |
A written report shall be prepared to aid the court in determining whether the child shall be certified to stand trial as an adult. Supreme Court Rule 129.03(b). The report must develop fully all available information relevant to the criteria which shall be considered by the court in determining whether the child is a proper subject to be dealt with under the provisions of the juvenile code and whether there are reasonable prospects of rehabilitation within the juvenile justice system. Although this report should be made available to all parties, the failure to do so does not deprive the juvenile court of its power to relinquish jurisdiction over the juvenile thereby rendering its order dismissing the juvenile case allowing the juvenile to be prosecuted as an adult void. State ex rel. K.D.C. v. Copeland, 852 S.W.2d 417 (Mo. App. S.D. 1993). The criteria, which the court must consider and which must be included in the report, include, but are not necessarily limited to, the following:
1. The seriousness of the offense alleged and whether protection of the community requires transfer to a court of general jurisdiction.
2. Whether the offense alleged involves viciousness, force and violence.
3. Whether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted.
4. Whether the offense alleged is part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code.
5. The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements.
6. The sophistication and maturity of the child as determined by consideration of his home and environmental situation, emotional condition and pattern of living.
7. The age of the child.
8. The program and facilities available to the juvenile court in considering disposition.
9. Whether or not the child can benefit from the treatment or rehabilitative program available to the juvenile court.
10. Racial disparity in certification.
The tenth factor "racial disparity in certification" was added by an amendment to Section 211.071, RSMo in 1995. The exact meaning and scope of the criteria is unclear. The majority of courts seem to be taking the position that a finding that the race of the juvenile did not enter into the certification decision in any respect is sufficient to comply with this provision. It is, of course, anticipated that defense counsel will attempt to defeat certification based upon statistical analysis that greater numbers of one race or another are certified in much the same manner as similar statistical analysis has been presented to the courts in relation to the racial disparity issue being advanced by litigants in death penalty cases.
As these materials are prepared, no case has yet interpreted the exact findings which the court must make on the issue of "racial disparity in certification." The Office of State Courts Administrator, however, has issued some guidelines about interpreting "racial disparity." See also Minority Youth in the Juvenile Justice System, A Judicial Response, 41 Juv. & Family Court Journal 3A (1990).
In determining whether the juvenile is a proper subject to be dealt with under the juvenile code, it is not necessary for the court to give equal weight to each of the statutory factors. Further, it is not necessary that the court make an express finding on each factor. State v. Simpson, 836 S.W.2d 75 (Mo. App. S.D. 1992), State v. Troupe, 891 S.W.2d 808 (Mo. 1995), Robinson v. State, 854 S.W.2d 393, (Mo. 1993). A waiver of juvenile court jurisdiction is not conditioned upon a lack of success in the juvenile system. If the court concludes that relevant factors properly found and considered lead to the conclusion that the juvenile system is not a proper forum for handling the juvenile, then the juvenile may be certified to stand trial as an adult. In Interest of A.D.R., 603 S.W.2d 575 (Mo. 1980); see also State v. Pierce, 749 S.W.2d 397 (Mo. 1988).
The juvenile court may dismiss the pending juvenile matter to allow the juvenile to be prosecuted as an adult even though a psychiatric evaluation may recommend that the juvenile be dealt with in the juvenile court. In State v. Simpson, 836 S.W.2d 75 (Mo. App. S.D. 1992), the juvenile was charged with murder and the juvenile officer testified that the Division of Youth Services did not have available programs, facilities or resources to allow proper rehabilitation of the juvenile.
| Section 16.6 Mandatory Requirements for Certification Hearings |
The following are mandatory requirements for the court to conduct a proper certification hearing:
1. The certification hearing must be held prior to the beginning of the adjudicatory hearing in order to avoid double jeopardy. If the adjudicatory hearing has begun and the juvenile is subsequently certified, his subsequent charges in adult court constitute double jeopardy. Breed v. Jones, 421 U.S. 519 (1975); State v. Abbott, 654 S.W.2d 260 (Mo. App. S.D. 1983); Durant v. State, 523 S.W.2d 837 (Mo. App. W.D. 1975).
2. The court hearing the certification must have jurisdiction of the cause and of the parties. This means that the court must have both subject matter and personal jurisdiction. Jurisdiction of certification hearings is in the juvenile division of the circuit court, or family court in circuits having such a court. Venue rules discussed, supra, must be given consideration to make certain that the pending petition which is sought to be dismissed has been filed in the correct venue. Service rules discussed, supra, must be carefully reviewed to insure that the court has acquired personal jurisdiction over all of the required parties both on the underlying petition and that adequate notice has been given of the certification hearing.
3. The juvenile must be represented by counsel. Counsel may not be waived in a certification hearing.
4. The hearing on the motion to dismiss must be held in the presence of the juvenile and his counsel.
5. In
the event the court decides to transfer jurisdiction of the juvenile to allow
the juvenile to be prosecuted under the general law, the court must enter factual findings showing the reasons underlying the court's decision.
Section 211.071.7 (1)-(4), RSMo. It has long been held that detailed findings of fact are not required, but must be sufficient to permit "meaningful appellate review." State v. Nathan, 404 S.W.3d, 261 (Mo. banc 2013) citing, Coney v. State, 491 S.W.2d 501, 512 (Mo. 1973). The only "fact" that must be found is whether the juvenile is an appropriate subject for the juvenile code. Id.
It is suggested that the court's order be framed in terms of a "Findings of Fact, Conclusions of Law and Judgment." The court's order must, at a minimum, show all of the above matters. Following entry of the court's order, a copy of the petition that was dismissed and the order of dismissal shall be sent to the prosecuting attorney. Section 211.071.8, RSMo.
In a certification proceeding, hearsay admitted without objection can be properly considered by the trial court where part of the court's decision was based on the hearsay which was admitted without objection. State v. Whitfield, 947 S.W.2d 537 (Mo. App. E.D. 1997). See also State v. Thomas, 70 S.W.3d 496 (Mo. App. 2002); State v. Williams, 24 S.W.3d 101 (Mo. App. 2000).
| Section 16.7 Effect of Dismissal |
Once the order of dismissal has been granted permitting a child to be prosecuted under the general law, the jurisdiction of the juvenile court over that child is forever terminated unless the child is found not guilty by a court of general jurisdiction. Section 211.071.9 and 211.071.10, RSMo.
NOTE: If juvenile is certified to stand trial as adult but charges are not filed in the adult system, subsequent charges filed against the juvenile must originate in the juvenile system as the adult criminal court lacks jurisdiction to act. State v. K.J., 97 S.W.3d 543 (Mo. App. W.D. 2003).
| Section 16.8 Appeal From Dismissal to Allow Prosecution of Juvenile | |
| as an Adult |
No appeal lies from the order of the juvenile court relinquishing jurisdiction over a child so that the child can be prosecuted under the general law as an adult. State v. Abbott, 654 S.W.2d 260 (Mo. App. S.D. 1983). See also McAnulty v. State, 766 S.W.2d 749 (Mo. App. S.D. 1989). Instead, the appropriate method to review the order of the juvenile court relinquishing jurisdiction over a child to allow the child to be prosecuted as an adult under the general law is by a motion to dismiss the indictment or information in the trial court. Id. The standard of review in determining whether the decision to dismiss the juvenile court petition to allow the juvenile to be prosecuted as an adult is whether, in view of the totality of the relevant circumstances, the juvenile court abused its discretion. State v. Owens, 582 S.W.2d 366 (Mo. App. S.D. 1979); distinguished by State ex rel. K.D.C. v. Copeland, 852 S.W.2d 417 (Mo. Ct. App. 1993). Appellate review of the juvenile court's decision to dismiss the juvenile proceedings to allow the juvenile to be prosecuted as an adult is deferred until the primary issue of guilt has been determined in the adult criminal case. State ex rel. T.J.H. v. Bills, 495 S.W.2d 722 (Mo. App. 1973), certified question answered, State ex rel. T.J.H. v. Bills, 504 S.W.2d 76 (Mo. banc 1974); followed by State ex rel. K.D.C. v. Copeland, 852 S.W.2d 417 (Mo. Ct. App. 1993).
| Section 16.9 Dual Jurisdiction |
Section 211.073, RSMo allows an adult court, when sentencing a juvenile who has been certified, to invoke "dual jurisdiction" of both the criminal and juvenile codes. The sentencing adult court is authorized to impose a juvenile disposition and to simultaneously impose an adult criminal sentence, the execution of which shall be suspended pursuant to the provisions of Section 211.073, RSMo. Successful completion of the juvenile disposition is a required condition of the suspended adult criminal sentence. Id.
Section 211.073, RSMo provides guidelines for when a certified juvenile may be ordered into the custody of the Division of Youth Services by the adult court after conviction or plea of guilty. Section 211.073, RSMo also provides provisions for dealing with a certified juvenile who has violated a condition of his suspended sentence, who reaches 17 years of age and who reaches 21 years of age.
All time served by the offender under the juvenile disposition must be credited toward the adult criminal sentence imposed. Section 211.073.6, RSMo.