2023 Vermont Statutes › Title 33 - Human Services › Chapter 52 - Delinquency Proceedings › § 5204. Transfer from Family Division of the Superior Court

§ 5204. Transfer from Family Division of the Superior Court
(a) After a petition has been filed alleging delinquency, upon motion of the State’s Attorney and after hearing, the Family Division of the Superior Court may transfer jurisdiction of the proceeding to the Criminal Division of the Superior Court if the child had attained 16 years of age but not 19 years of age at the time the act was alleged to have occurred and the delinquent act set forth in the petition is a felony not specified in subdivisions (1)–(12) of this subsection or if the child had attained 12 years of age but not 14 years of age 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 or an attempt to commit that offense;
(2) assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b) or an attempt to commit that offense;
(3) assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c) or an attempt to commit that offense;
(4) aggravated assault as defined in 13 V.S.A. § 1024 or an attempt to commit that offense;
(5) murder as defined in 13 V.S.A. § 2301 and aggravated murder as defined in 13 V.S.A. § 2311 or an attempt to commit either of those offenses;
(6) manslaughter as defined in 13 V.S.A. § 2304 or an attempt to commit that offense;
(7) kidnapping as defined in 13 V.S.A. § 2405 or an attempt to commit that offense;
(8) unlawful restraint as defined in 13 V.S.A. § 2406 or 2407 or an attempt to commit that offense;
(9) maiming as defined in 13 V.S.A. § 2701 or an attempt to commit that offense;
(10) sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2) or an attempt to commit that offense;
(11) aggravated sexual assault as defined in 13 V.S.A. § 3253 and aggravated sexual assault of a child as defined in 13 V.S.A. § 3253a or an attempt to commit either of those offenses; or
(12) burglary into an occupied dwelling as defined in 13 V.S.A. § 1201(c) or an attempt to commit that offense.
(b)(1) The State’s Attorney of the county where the juvenile petition is pending may move in the Family Division of the Superior Court for an order transferring jurisdiction under subsection (a) of this section at any time prior to adjudication on the merits. The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
(2)(A)(i) The Family Division of the Superior Court shall hold a hearing under subsection (c) of this section to determine whether jurisdiction should be transferred to the Criminal Division under subsection (a) of this section if the delinquent act set forth in the petition is:
(I) a felony violation of 18 V.S.A. chapter 84 for selling or trafficking a regulated drug;
(II) human trafficking or aggravated human trafficking in violation of 13 V.S.A. § 2652 or 2653;
(III) defacing a firearm’s serial number in violation of 13 V.S.A. § 4024; or
(IV) straw purchasing of firearm in violation of 13 V.S.A. § 4025; and
(ii) the child had attained 16 years of age but not 19 years of age at the time the act was alleged to have occurred.
(B) A transfer hearing required by this subdivision (2) shall occur without delay and as soon as practicable, and the State shall have the burden of proof. The court decision to hold the transfer hearing shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the Family Division of the Superior Court may deny the motion to transfer jurisdiction.
(c) Upon the filing of a motion to transfer jurisdiction under subdivision (b)(1) of this section, or in cases where a hearing is required under subdivision (b)(2) of this section, the Family Division of the Superior Court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:
(1) there is probable cause to believe that the child committed the charged offense; and
(2) public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to the Family Division of the Superior Court and delinquent children.
(d) In making its determination as required under subsection (c) of this section, the court may consider, among other matters:
(1) the maturity of the child as determined by consideration of the child’s age, home, and environment; emotional, psychological, and physical maturity; and relationship with and adjustment to school and the community;
(2) the extent and nature of the child’s prior record of delinquency;
(3) the nature of past treatment efforts and the nature of the child’s response to them, including the child’s mental health treatment and substance abuse treatment and needs;
(4) the nature and circumstances of the alleged offense, including whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(5) the nature of any personal injuries resulting from or intended to be caused by the alleged act;
(6) the prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings;
(7) whether the protection of the community would be better served by transferring jurisdiction from the Family Division to the Criminal Division of the Superior Court;
(8) the youth’s residential housing status;
(9) the youth’s employment and educational situation;
(10) whether the youth has complied with conditions of release;
(11) the youth’s criminal record and whether the youth has engaged in subsequent criminal or delinquent behavior since the original charge;
(12) whether the youth has connections to the community; and
(13) the youth’s history of violence and history of illegal or violent conduct involving firearms.
(e) A transfer under this section shall terminate the jurisdiction of the Family Division of the Superior Court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.
(f)(1) The Family Division, following completion of the transfer hearing, shall make findings and, if the court orders transfer of jurisdiction from the Family Division, shall state the reasons for that order. If the Family Division orders transfer of jurisdiction, the child shall be treated as an adult. The State’s Attorney shall commence criminal proceedings as in cases commenced against adults.
(2) Notwithstanding subdivision (1) of this subsection, the parties may stipulate to a transfer of jurisdiction from the Family Division at any time after a motion to transfer is made pursuant to subsection (b) of this section. The court shall not be required to make findings if the parties stipulate to a transfer pursuant to this subdivision. Upon acceptance of the stipulation to transfer jurisdiction, the court shall transfer the proceedings to the Criminal Division and the child shall be treated as an adult. The State’s Attorney shall commence criminal proceedings as in cases commenced against adults.
(3) Notwithstanding subdivision (1) of this subsection, the parties may stipulate to convert the juvenile proceeding to a youthful offender proceeding under chapter 52A of this title. If the parties stipulate to convert the proceeding pursuant to this subdivision, the court may proceed immediately to a youthful offender consideration hearing under section 5283 of this title. The Court shall request that the Department complete a youthful offender consideration report under section 5282 of this title before accepting a case for youthful offender treatment pursuant to this subdivision.
(g) The order granting or denying transfer of jurisdiction shall constitute a final order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.
(h) If a person who has not attained 16 years of age at the time of the alleged offense has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
(i) If a juvenile 16 years of age or older has been prosecuted as an adult for an offense not listed in subsection (a) of this section and is not convicted of a felony, but is convicted of a lesser included misdemeanor, jurisdiction shall be transferred to the Family Division of the Superior Court for disposition. A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of a crime, and the entire matter shall be treated as if it had remained in the Family Division throughout. In case of an acquittal for a matter specified in this subsection and in case of a transfer to the Family Division under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.
(j) The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child. (Added 2007, No. 185 (Adj. Sess.), § 2, eff. Jan. 1, 2009; amended 2009, No. 154 (Adj. Sess.), § 238; 2011, No. 159 (Adj. Sess.), § 4; 2015, No. 153 (Adj. Sess.), § 11, eff. January 1, 2017; 2015, No. 153 (Adj. Sess.), § 12; 2017, No. 201 (Adj. Sess.), § 16, eff. July 1, 2020; 2017, No. 201 (Adj. Sess.), § 19, eff. July 1, 2024; 2021, No. 160 (Adj. Sess.), § 14, eff. June 1, 2022; 2023, No. 23, § 1, eff. May 30, 2023.)