CHAPTER 18

MOTION TO TRANSFER TO FAMILY COURT

§ 18.01 Introduction

§ 18.02 - Transfers Down

§ 18.03 - Transfers Up

§ 18.04 The Transfer Motion - Procedure

§ 18.05 - The Standard

§ 18.06 - Appeals

§ 18.07 Retransfers

§ 18.08 Delinquency Procedures and Sanctions

§ 18.01

Introduction

Young people charged with crimes can either be prosecuted in district court or tried for delinquency in the family court. The statutes provide mechanisms for transfers "up" from family to adult court, and "down" from adult to family court. Because the sanctions available to the state after a delinquency adjudication are limited in duration, and do not include incarceration in an adult prison, a juvenile defendant accused of a serious crime will almost always be better off having his or her case transferred to, or retained in, the family court. The motion to transfer is a critically important stage in such cases.

§ 18.02

- Transfers Down

Eligibility for transfer to and from juvenile court depends in part on the type of crime the defendant is charged with and in part on the defendant's age. 33 V.S.A. § 5506(a) sets out a "laundry list" of ten serious crimes:

(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(b);

(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) kidnapping as defined in 13 V.S.A. § 2402, 2402 or 2403;

(8) maiming as defined in 13 V.S.A. § 2701;

(9) sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2);

(10) aggravated sexual assault as defined in 13 V.S.A. § 3253. . . .{1}

Transfers from district to family court are mandatory if the defendant was under sixteen at the time of the alleged offense and not charged with a listed offense; otherwise they are discretionary with the trial judge:{2}

______________________________________________________________

Age 14-16 Age 16-18

Listed: discretionary (district court has exclusive original jurisdiction){3}

Unlisted: mandatory discretionary (prosecutor may

file first in juvenile court)

______________________________________________________________

A person under age sixteen who has been tried in district court for a listed offense but convicted of a lesser included offense is treated as a delinquent: the case goes to family court for disposition and the conviction is considered to be only a delinquency adjudication.{4}

§ 18.03

- Transfers Up

The state can bring delinquency proceedings against a child between the ages of ten and fourteen charged with a listed offense, and then move for an order transferring the case to district court, within ten days of the petition.{5}

§ 18.04

The Transfer Motion - Procedure

The defendant has the right to a hearing on his or her transfer motion.{6} It is the movant's burden to show that transfer is appropriate: the defendant's in a transfer down case, and the prosecutor's in a transfer up case.{7} The judge must make sufficient findings on the transfer motion to permit review on appeal,{8} although the Vermont Supreme Court has never found an abuse of discretion in this situation.{9} In a transfer up case the findings must be in writing.{10}

§ 18.05

- The Standard

33 V.S.A. § 5506, permitting transfers up from family court to district court, sets forth detailed standards governing the court's discretion, including such factors as the child's maturity, the nature of the child's prior record, the success of past treatment efforts, the prospects for rehabilitation, and the need to protect the community.{11}

The older and much more commonly used transfer down statute,{12} by contrast, states no criteria, and the Vermont Supreme Court has refused to promulgate its own. The court has cautioned that the decision to transfer or not involves more than "judicial whim," and that the judge must exercise "sound" discretion and make adequate findings.{13} But it has consistently refused to mandate use of the § 5506 transfer up criteria,{14} or the similar criteria approved in Kent v. United States,{15} and the ABA Juvenile Justice Standards,{16} although it has approved use of the Kent criteria in a number of cases.{17} A concurring opinion in State v. Buelow argues persuasively that the court should "articulate standards for distinguishing transfer decisions based on `judicial whim' from those based on `sound discretion[,]'" and that its "ad hoc decision-making" in this area violates due process.{18}

A trial judge may not condition a transfer on the defendant's waiver of procedural protections, for example, by insisting that the defendant plead guilty and agree to provide restitution.{19}

§ 18.06

- Appeals

Denial of a motion to transfer from adult to family court is immediately appealable, on motion, as a collateral final order, pursuant to V.R.A.P. 5.1.{20} Such an appeal does not, however, automatically stay proceedings in the district court.{21} By statute a transfer in the other direction, from family to adult court, is not considered an appealable final order "within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure,"{22} but Rule 5.1 (promulgated after the statute) probably covers this situation as well.

In the absence of statutory or case law criteria, transfer down decisions are reviewed on a case-by-case basis, by the permissive abuse-of-discretion standard.{23} Discretion can be challenged on the ground that the decision was partly based on an erroneous factual determination,{24} or a legal mistake about the consequences of the transfer or nontransfer,{25} or an impermissible criterion such as the defendant's unwillingness to waive procedural rights in the event of a transfer.{26}

§ 18.07

Retransfers

The family court's power to retransfer a case back to adult court is either strictly limited or entirely nonexistent. By statute the juvenile court lacks jurisdiction to retransfer before an adjudication of delinquency.{27} Under the constitution, however, an adult trial after a delinquency adjudication would almost certainly violate double jeopardy.{28}

A prosecutor and the court acting together may be able to circumvent these limitations by (a) dismissing the juvenile case before trial, and (b) refiling adult charges.{29}

§ 18.08

Delinquency Procedures and Sanctions

Juvenile delinquency cases are governed by a modified version of the rules of criminal procedure;{30} and with the exception of a jury,{31} the child has the same basic procedural rights as defendants in criminal proceedings,{32} including the requirement of proof beyond a reasonable doubt.{33} Unlike criminal proceedings, they are protected by strict rules of confidentiality.{34}

The major difference between delinquency and criminal proceedings is the range of available sanctions. When a child is found to be a delinquent, the juvenile court has only three options. It can

(1) Place the child under protective supervision,

(2) Place the child on probation under such conditions and limitations as the court may prescribe, [or]

(3) Transfer legal custody to the commissioner of social and rehabilitation services, who may place the child under his or her supervision and authority in a family home, a treatment, rehabilitative, or educational institution or facility, or a hospital. . . .{35}

The child may not be imprisoned in any facility "used primarily for the execution of sentences of persons convicted of a crime[,]"{36} and the adjudication is not deemed a criminal conviction for most purposes.{37}

This is not to say that the sanctions are trivial. An order committing the child to SRS custody vests the state with broad discretion over placement, which can entail confinement in the prison-like Woodside Detention Center, or a transfer to a restrictive out-of-state facility.{38} The juvenile court's jurisdiction, and the custody order, can be extended past the child's eighteenth birthday, until he or she turns twenty-one.{39}

1. The statute includes an eleventh crime, "burglary of sleeping apartments in nighttime as defined in 13 V.S.A. § 1203[,]" which was repealed in 1981.

2. The following table reflects the provisions of 33 V.S.A. § 5505(a)-(c). "Age" means age at the time of the alleged offense, not when the charge was brought. State v. Hatin, No. 88-378 (Vt. Jan. 4, 1990) (mem.)

3. 33 V.S.A. § 5516(c); State v. Buelow, 155 Vt. 537, 540 (1990).

4. 33 V.S.A. § 5506(h).

5. 33 V.S.A. § 5506 (a),(b). Juvenile delinquency proceedings cannot be brought against children under ten, unless the charge is murder. 33 V.S.A. § 5502(a)(1),(a)(1)(C).

6. State v. Buelow, 155 Vt. 537, 546 (1990); State v. Powers, 136 Vt. 167, 169 (1978).

7. State v. Buelow, 155 Vt. 537, 540 (1990).

8. State v. Powers, 136 Vt. 167, 169 (1978).

9. For decisions rejecting claims of abuse of discretion, see State v. Buelow, 155 Vt. 537 (1990); State v. Barrette, 153 Vt. 476 (1990); State v. Lafayette, 152 Vt. 108 (1989); State v. Smail, 151 Vt. 340 (1989); State v. Willis, 145 Vt. 459 (1985); and State v. Jacobs, 144 Vt. 70 (1984).

10. 33 V.S.A. § 5506.

11. 33 V.S.A. § 5506(d).

12. 33 V.S.A. § 5505.

13. State v. Jacobs, 144 Vt. 70 (1984); State v. Powers, 136 Vt. 167, 169-70 (1978).

14. State v. Buelow, 155 Vt. 537, 544 (1990).

15. 383 U.S. 541, 566-67 (1963).

16. State v. Buelow, 155 Vt. 537, 544 (1990); State v. Jacobs, 144 Vt. 70, 74-75 (1984).

17. State v. Buelow, 155 Vt. 537, 544 (1990); State v. Willis, 145 Vt. 459, 468-69 (1985); State v. Jacobs, 144 Vt. 70, 74-75 (1984).

18. State v. Buelow, 155 Vt. 537, 548 (1990) (quoting State v. Powers, 136 Vt. 167, 169 (1978)).

19. State v. Smail, 151 Vt. 340, 341 (1989).

20. See State v. Francis, No. 92-506 (Vt. Dec. 3, 1992) (mem.); State v. Lafayette, 148 Vt. 288 (1987). The rule does not grant an appeal as of right, however, and the trial judge can make the defendant wait until after a final judgment in the criminal case. In re J.G., No. 93-119 (Vt. May 25, 1993). The rule does not apply when the defendant is no longer a juvenile and the effect of a transfer decision would be to dismiss the proceedings outright. State v. Gilman, 155 Vt. 649 (1990).

21. V.R.A.P. 5.1(a); State v. Francis, No. 92-506 (Vt. Dec. 3, 1992) (mem.).

22. 33 V.S.A. § 5506(g).

23. State v. Buelow, 155 Vt. 537, 544 (1990); State v. Barrette, 153 Vt. 476, 477 (1990); State v. Smail, 151 Vt. 340, 341 (1989).

24. Cf. State v. Buelow, 155 Vt. 537, 543-44 (1990) (findings supportable evidence "not substantial or conclusive"); State v. Jacobs, 144 Vt. 70, 75 (1984) (findings approved although "not ideal").

25. State v. Kirby, No. 91-542 (Vt. April 22, 1992) (judge may have erroneously thought that state could not retain jurisdiction over juvenile past age 18). But see State v. Willis, 145 Vt. 459, 467-71 (1985) (trial court erred in thinking that juvenile court could not retain jurisdiction, but denial of transfer motion was otherwise reasonable and not abuse of discretion). Cf. State v. Barrette, 153 Vt. 476, 477 (1990) (court did not misunderstand expungement option if defendant was tried in adult court).

26. State v. Smail, 151 Vt. 340, 341 (1989).

27. 33 V.S.A. § 5527(c); State v. Charbonneau, 154 Vt. 373, 376 (1990).

28. Breed v. Jones, 421 U.S. 519 (1975). The Vermont Supreme Court has left this question open. State v. Charbonneau, 154 Vt. 373, 376 n.* (1990).

29. The Vermont Supreme Court in Charbonneau expressed no opinion about this tactic. 154 Vt. at 376 n.*.

30. Family Court Rule 1(a); In re J.R., 147 Vt. 7, 10 (1986).

31. 33 V.S.A. § 5523(a) (hearings in juvenile court proceed without a jury); McKiever v. Pennsylvania, 403 U.S. 528, 545 (1971).

32. See 33 V.S.A. § 5524 (specifying child's rights in delinquency proceeding); In re R.B., 134 Vt. 368, 369 (1976) ("it is required that in juvenile proceedings all constitutional guarantees associated with traditional prosecutions apply"). See generally In re Gault, 387 U.S. 1 (1967).

33. In re Winship, 397 U.S. 358 (1970).

34. 33 V.S.A. § 5523(c),(d); In re J.S., 140 Vt. 458 (1981).

35. 33 V.S.A. § 5529(a).

36. 33 V.S.A. § 5535(b).

37. 33 V.S.A. § 5535(a). Delinquency adjudications are admissible at the sentencing stage of a later felony prosecution. 33 V.S.A. § 5535(f).

38. 33 V.S.A. §§ 5901 et seq.; In re J.S., 139 Vt. 6 (1980).

39. 33 V.S.A. § 5504; In re C.S., No. 91-464 (Vt. April 17, 1992). In C.S. the court held that 33 V.S.A. § 5531(a)'s provision that custody orders not extend "beyond the minority of the child[,]" i.e., age 18, was a drafting error.