Senate Bill No. 99

Introduced By thomas

By Request of the Juvenile Justice and Mental Health Study Commission



A Bill for an Act entitled: "An Act generally revising the laws relating to juvenile justice; generally revising the laws relating to extended jurisdiction prosecution of juveniles; authorizing the court or the county attorney to designate a juvenile as an extended jurisdiction juvenile; authorizing adult felony sentences for extended jurisdiction juveniles; extending youth court jurisdiction to age 25 for extended jurisdiction juveniles; generally revising the law relating to the transfer of juvenile cases to the district court after prosecution in the youth court with respect to cases that are not extended jurisdiction juvenile prosecution cases or were not previously transferred to adult court for prosecution; providing for transfer, after a hearing, of supervisory responsibility of certain juvenile cases from the youth court to the district court after prosecution with respect to cases that are not extended jurisdiction juvenile prosecution cases or were not previously transferred to adult court for prosecution; amending sections 41-5-203, 41-5-205, 41-5-206, 41-5-208, 41-5-501, 41-5-1102, 41-5-1103, 41-5-1104, and 41-5-1105, MCA; and providing an immediate effective date and an applicability date."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 41-5-203, MCA, is amended to read:

"41-5-203.   Jurisdiction of the court. (1) Except as provided in subsection (2), the court has exclusive original jurisdiction of all proceedings under the Montana Youth Court Act in which a youth is alleged to be a delinquent youth, a youth in need of supervision, or a youth in need of care or concerning any person under 21 years of age charged with having violated any law of the state or ordinance of any city or town other than a traffic or fish and game law prior to having become 18 years of age.

(2)  Justice, municipal, and city courts have concurrent jurisdiction with the youth court over all alcoholic beverage, tobacco products, and gambling violations alleged to have been committed by a youth.

(3) The court has jurisdiction to:

(A) TRANSFER A YOUTH COURT CASE TO THE DISTRICT COURT AFTER NOTICE AND HEARING; AND

(B) WITH RESPECT TO EXTENDED JURISDICTION JUVENILE CASES:

(I) designate a proceeding AS an extended jurisdiction juvenile prosecution, to;

(II) conduct a hearing, to receive a plea, and to ADMISSIONS, AND impose upon a youth who is convicted ADJUDICATED as an extended jurisdiction juvenile an adult A sentence that may extend beyond the youth's age of majority;

(III) STAY THAT PORTION OF AN EXTENDED JURISDICTION SENTENCE THAT IS EXTENDED BEYOND A YOUTH'S MAJORITY, SUBJECT TO THE PERFORMANCE OF THE JUVENILE PORTION OF THE SENTENCE;

(IV) CONTINUE, MODIFY, OR REVOKE THE STAY AFTER NOTICE AND HEARING;

(V) AFTER REVOCATION, TRANSFER EXECUTION OF THE STAYED SENTENCE TO THE DEPARTMENT;

(VI) TRANSFER SUPERVISION OF ANY JUVENILE SENTENCE IF, AFTER NOTICE AND HEARING, THE COURT DETERMINES BY A PREPONDERANCE OF THE EVIDENCE THAT THE JUVENILE HAS VIOLATED OR FAILED TO PERFORM THE JUVENILE PORTION OF AN EXTENDED JURISDICTION SENTENCE; AND

(VII) TRANSFER A JUVENILE CASE TO DISTRICT COURT AFTER NOTICE AND HEARING."



Section 2.  Section 41-5-205, MCA, is amended to read:

"41-5-205.   Retention of jurisdiction -- termination. (1) The court may dismiss a petition or otherwise terminate jurisdiction on its own motion or on the motion or petition of any interested party at any time. Once a court obtains jurisdiction over a youth, the court retains jurisdiction unless Unless terminated by the court or by mandatory termination in the following cases: and except as provided in subsections (2) and (3), the jurisdiction of the court continues until the individual becomes 21 years of age.

(2) Court jurisdiction terminates when:

(1)(a)  at the time the proceedings are transferred to adult criminal district court under 41-5-206 or 41-5-208;

(2)(b)  at the time the youth is discharged by the department; and or

(c) execution of an adult A sentence is ordered under 41-5-1105(2)(b)(iii) and the supervisory responsibilities are transferred to the district court under 41-5-1105.

(3)  in any event, at the time the youth reaches the age of 21 years.

(3) The jurisdiction of the court over an extended jurisdiction juvenile, with respect to the offense for which the youth was convicted as an extended jurisdiction juvenile, extends until the offender becomes 25 years of age unless the court terminates jurisdiction before that date."



Section 3.  Section 41-5-206, MCA, is amended to read:

"41-5-206.   Transfer to criminal court prior to prosecution -- optional designation as extended jurisdiction juvenile prosecution. (1) After Subject to subsection (10), after a petition has been filed alleging delinquency and before hearing the petition on its merits, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prosecution to the district court if:

(a)  (i) the youth charged was 12 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act would constitute sexual intercourse without consent as defined in 45-5-503, deliberate homicide as defined in 45-5-102, mitigated deliberate homicide as defined in 45-5-103, or the attempt, as defined in 45-4-103, of either deliberate or mitigated deliberate homicide if the act had been committed by an adult; or

(ii) the youth charged was 16 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following:

(A)  negligent homicide as defined in 45-5-104;

(B)  arson as defined in 45-6-103;

(C)  aggravated or felony assault as defined in 45-5-202;

(D)  robbery as defined in 45-5-401;

(E)  burglary or aggravated burglary as defined in 45-6-204;

(F)  aggravated kidnapping as defined in 45-5-303;

(G)  possession of explosives as defined in 45-8-335;

(H)  criminal sale of dangerous drugs as defined in 45-9-101;

(I)  criminal production or manufacture of dangerous drugs as defined in 45-9-110;

(J)  attempt, as defined in 45-4-103, of any of the acts enumerated in subsections (1)(a)(ii)(A) through (1)(a)(ii)(I);

(b)  a hearing on whether the transfer should be made is held in conformity with the rules on a hearing on a petition alleging delinquency, except that the hearing must be conducted by the youth court without a jury;

(c)  notice in writing of the time, place, and purpose of the hearing is given to the youth, the youth's counsel, and the youth's parents, guardian, or custodian at least 10 days before the hearing; and

(d)  the court finds upon the hearing of all relevant evidence that there is probable cause to believe that:

(i)  the youth committed the delinquent act alleged;

(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and

(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.

(2)  In transferring the matter of prosecution to the district court, the court may also consider the following factors:

(a)  the sophistication and maturity of the youth, determined by consideration of the youth's home, environmental situation, and emotional attitude and pattern of living;

(b)  the record and previous history of the youth, including previous contacts with the youth court, law enforcement agencies, youth courts in other jurisdictions, prior periods of probation, and prior commitments to juvenile institutions. However, lack of a prior juvenile history with youth courts is not of itself grounds for denying the transfer.

(3)  The court shall grant the motion to transfer if the youth was 16 years old or older at the time of the conduct alleged to be unlawful and the unlawful act would constitute deliberate homicide as defined in 45-5-102, mitigated deliberate homicide as defined in 45-5-103, or the attempt, as defined in 45-4-103, of either deliberate or mitigated deliberate homicide if the act had been committed by an adult.

(4)  Upon transfer to district court, the judge shall make written findings of the reasons why the jurisdiction of the youth court was waived and the case transferred to district court.

(5)  The transfer terminates the jurisdiction of the youth court over the youth with respect to the acts alleged in the petition. A youth may not be prosecuted in the district court for a criminal offense originally subject to the jurisdiction of the youth court unless the case has been transferred as provided in this section. A case may be transferred to district court after prosecution as provided in 41-5-208 or 41-5-1105.

(6)  Upon order of the youth court transferring the case to the district court under subsection (5), the county attorney shall file the information against the youth without unreasonable delay.

(7)  Any offense not enumerated in subsection (1) that arises during the commission of a crime enumerated in subsection (1) may be:

(a)  tried in youth court;

(b)  transferred to district court with an offense enumerated in subsection (1), upon motion of the county attorney and order of the youth court judge.

(8)  If a youth is found guilty in district court of any of the offenses transferred by the youth court and is sentenced to the state prison, the commitment must be to the department of corrections. The department shall confine the youth in whatever institution that it considers proper, including a state youth correctional facility under the procedures of 52-5-111. However, a youth under 16 years of age may not be confined in the state prison.

(9)  A youth whose case is transferred to district court may not be detained or otherwise placed in a jail or other adult detention facility before final disposition of the youth's case unless:

(a)  alternative facilities do not provide adequate security; and

(b)  the youth is kept in an area that provides physical, as well as sight and sound, separation from adults accused or convicted of criminal offenses.

(10) After a hearing on the motion to transfer to district court, the court may designate the case as an extended jurisdiction juvenile prosecution under part 11 of this chapter, rather than transferring the matter to district court."



Section 4.  Section 41-5-208, MCA, is amended to read:

"41-5-208.   Transfer of supervisory responsibility to district court after prosecution -- juvenile disposition in district court -- limitation on jurisdiction nonextended jurisdiction and nontransferred cases. (1) To After adjudication by the court of a case that was not transferred to district court under 41-5-206 and that was not prosecuted as an extended jurisdiction juvenile prosecution under part 11 of this chapter, the court may, on its own THE YOUTH'S motion or the motion of the county attorney, transfer jurisdiction to the district court and order the transfer of supervisory responsibility from juvenile probation services to adult probation services. A transfer under this section may be made to ensure continued compliance with the court's disposition under 41-5-523, and may be made at any time after a youth reaches 18 years of age but before the youth reaches 21 years of age, the youth court judge may transfer jurisdiction to district court and order the transfer of supervisory responsibility and the youth's case files to the department.

(2) Before transfer, the court shall hold a hearing on whether the transfer should be made. The hearing must be held in conformity with the rules on a hearing on a petition alleging delinquency, except that the hearing must be conducted by the court without a jury. The court shall give the youth, the youth's counsel, and the youth's parents, guardian, or custodian notice in writing of the time, place, and purpose of the hearing at least 10 days before the hearing. At the hearing, the youth is entitled to receive:

(a) written notice of the motion to transfer;

(b) an opportunity to be heard in person and to present witnesses and evidence;

(c) a written statement by the court of the evidence relied on and reasons for the transfer;

(d) the right to cross-examine witnesses, unless the court finds good cause for not allowing confrontation; and

(e) the right to counsel.

(3) After the hearing, if the court finds by a preponderance of the evidence that transfer of continuing supervisory responsibility to the district court is appropriate, the court shall order the transfer.

(2)(4)  If a youth whose case has been transferred to district court under this section violates a disposition previously imposed under 41-5-523, the district court may, after hearing, impose conditions as provided under 46-18-201 through 46-18-203.

(3)(5)  If, at the time of transfer, the youth is incarcerated in a state youth correctional facility, the district court may order that the youth, after reaching 18 years of age:

(a)  be incarcerated in a state adult correctional facility, boot camp, or prerelease center; or

(b)  be supervised by the department.

(4)(6)  The district court's jurisdiction over a case transferred under this section terminates when the youth reaches 25 years of age."



Section 5.  Section 41-5-501, MCA, is amended to read:

"41-5-501.   Petition -- form and content. (1) A petition initiating proceedings under this chapter shall must be signed by the county attorney and shall must be entitled "In the Matter of ...., a youth" and shall must set forth with specificity:

(1)(a)  the facts necessary to invoke the jurisdiction of the court, together with a statement alleging the youth to be a delinquent or in need of supervision;

(2)(b)  the charge of an offense, which that shall must:

(a)(i)  state the name of the offense;

(b)(ii)  cite in customary form the statute, rule, or other provisions of law which that the youth is alleged to have violated;

(c)(iii)  state the facts constituting the offense in ordinary and concise language and in a such manner as to enable that enables a person of common understanding to know what is intended; and

(d)(iv)  state the time and place of the offense as definitely as can be done;

(3)(c)  the name, birth date, and residence address of the youth;

(4)(d)  the names and residence addresses of parents, guardian, and spouse of the youth and, if none of the parents, guardian, or spouse resides or can be found within the state or if there is none, the adult relative residing nearest to the court;

(5)(e)  whether the youth is in detention or shelter care and, if so, the place of detention or shelter care and the time he that the youth was detained or sheltered;

(6)(f)  if any of the matters required to be set forth by this section are not known, a statement of those matters and the fact that they are not known; and

(7)(g)  a list of witnesses to be used in proving the commission of the offense or offenses charged in the petition, together with their residence addresses. The names and addresses of any witnesses discovered after the filing of the petition shall must be furnished to the youth upon request.

(2) When a county attorney files a delinquency petition alleging that a youth committed an offense that would be a felony if committed by an adult and that is transferable under 41-5-206 or in which a youth 12 years of age or older allegedly used a firearm , the county attorney shall indicate in the petition whether the county attorney designates the proceeding an extended jurisdiction juvenile prosecution. When the county attorney files a delinquency petition alleging that a youth committed any other offense that would be a felony if committed by an adult, the county attorney may request that the court designate the proceeding an extended jurisdiction juvenile prosecution."



Section 6.  Section 41-5-1102, MCA, is amended to read:

"41-5-1102.   Extended jurisdiction juvenile prosecution defined -- jurisdiction extended -- designation. (1) A youth court case involving a youth alleged to have committed an offense that would be a felony if committed by an adult is an extended jurisdiction juvenile prosecution if:

(a)  the youth was at least 14 years of age at the time of the alleged offense, the prosecutor county attorney requests that the case be designated an extended jurisdiction juvenile prosecution, a hearing is held under 41-5-1103, and the court designates the case as an extended jurisdiction juvenile prosecution; or

(b)  the county attorney designates in the delinquency petition that the proceeding is an extended jurisdiction juvenile prosecution and the youth is alleged to have committed:

(i) the alleged an offense that is transferable under 41-5-206; or

(ii) any felony OFFENSE THAT WOULD BE A FELONY IF COMMITTED BY AN ADULT in which the youth allegedly used a firearm, if the youth was at least 12 years of age at the time of the alleged offense and allegedly used a weapon.; or

(c) after a hearing upon a motion for transfer of the matter of prosecution to the district court under 41-5-206, the court designates the case as an extended jurisdiction juvenile prosecution.

(2)  To enforce the court's disposition in an extended jurisdiction juvenile prosecution, the court shall retain jurisdiction until the case is transferred to district court under this part or jurisdiction is terminated under the provisions of as provided in 41-5-205."



Section 7.  Section 41-5-1103, MCA, is amended to read:

"41-5-1103.   Hearing -- court designation on request. (1) When a prosecutor county attorney requests that a case be designated as an extended jurisdiction juvenile prosecution under 41-5-1102(1)(a), the court shall hold a hearing to consider the request.

(2)  The hearing must be held within 30 days of the filing of the request unless good cause is shown by the prosecutor county attorney or the youth that the hearing should be held later, in which case the hearing must be held within 90 days of the request.

(3)  If the prosecutor county attorney shows by clear and convincing evidence that designating the case as an extended jurisdiction juvenile prosecution serves public safety, the court may, within 15 days after the hearing, designate the case as an extended jurisdiction juvenile prosecution. In determining whether public safety is served, the court shall consider the factors enumerated in [section 10].

(4)  An order designating a case as an extended jurisdiction prosecution is not appealable until after disposition under 41-5-1104."



Section 8.  Section 41-5-1104, MCA, is amended to read:

"41-5-1104.   Disposition in extended jurisdiction juvenile prosecutions. (1) After designation as an extended jurisdiction juvenile prosecution, the case must proceed with an adjudicatory hearing, as provided in 41-5-521. If a youth in an extended jurisdiction juvenile prosecution pleads guilty to ADMITS TO or is found guilty of an offense described in 41-5-1102(1)(b) a felony ADJUDICATED TO HAVE COMMITTED AN OFFENSE THAT WOULD BE A FELONY IF COMMITTED BY AN ADULT, the court shall:

(a)  impose one or more juvenile dispositions under 41-5-523; and

(b)  impose an adult criminal any sentence, the allowed by the statute that establishes the penalty for the offense of which the youth is convicted and that would be permissible if the offender were an adult. The execution of which the sentence imposed under this subsection must be stayed on the condition that the youth not violate the provisions of the disposition order and not commit a new offense. If the youth violates the conditions of the stay or commits a new offense, the adult criminal sentence must be executed as provided in 41-5-1105.

(2)  Except as provided in subsection (3), if If a youth in prosecuted as an extended jurisdiction prosecution juvenile after designation by the county attorney in the delinquency petition under 41-5-1102(1)(b) is convicted of an offense ADMITS TO OR IS ADJUDICATED TO HAVE COMMITTED AN OFFENSE THAT WOULD BE A FELONY IF COMMITTED BY AN ADULT that is not an offense described in 41-5-1102(1)(b), the court shall adjudicate the youth delinquent and order a disposition under 41-5-523.

(3)  If a youth in an extended jurisdiction juvenile prosecution pleads guilty to ADMITS TO OR IS ADJUDICATED TO HAVE COMMITTED an offense that is WOULD not BE described in 41-5-1102(1) (b) a felony IF COMMITTED BY AN ADULT, the court may impose, with the youth's consent, a disposition provided under subsection (1)(b). If the youth does not consent to disposition under subsection (1)(b), the court shall impose a disposition as provided under subsection (2) (1)(a)."



Section 9.  Section 41-5-1105, MCA, is amended to read:

"41-5-1105.   Execution Revocation of stay -- disposition of adult sentence -- exception -- transfer to district court. (1)  If a court has imposed on a youth an adult A criminal sentence stayed under 41-5-1104(1)(b) and the youth violates the conditions of the stay or is alleged to have committed a new offense, the court may, without notice, direct that the youth be taken into immediate custody and revoke the stay. The court shall notify the youth, the youth's counsel, and the youth's parents, guardian, or custodian in writing of the reasons alleged to exist for the revocation of the stay of execution of the adult sentence.

(2)  (a) If the youth challenges the reasons for the revocation, the court shall hold a summary revocation hearing at which the youth is entitled to receive: be heard and represented by counsel

(i) written notice of the alleged violation;

(ii) evidence of the alleged violation;

(iii) an opportunity to be heard in person and to present witnesses and evidence;

(iv) the right to cross-examine witnesses, unless the court finds good cause for not allowing confrontation; and

(v) the right to counsel.

(b)  After the revocation hearing, if the court finds by a preponderance of the evidence presented that the conditions of the stay have been violated or that the youth has committed a new offense, the court shall provide the youth with a written statement of the evidence relied on and reasons for revocation and shall:

(i) continue the stay and place the youth on probation;

(ii) impose one or more dispositions under 41-5-523 IF THE YOUTH IS UNDER 18 YEARS OF AGE; or

(i)(iii)  subject to 41-5-206(8) and (9), order execution of the sentence imposed under 41-5-1104(1)(b); or.

(ii) continue the stay and make written findings regarding the mitigating factors that justify continuing the stay.

(3)  If the stay of an adult sentence is revoked under this section, jurisdiction must be transferred to district court for execution of the sentence, subject to 41-5-206(8) and (9).

(3) Upon revocation and disposition under subsection (2)(b)(iii), the youth court shall transfer the case to the district court. Upon transfer, the offender's extended jurisdiction juvenile status is terminated and youth court jurisdiction is terminated. Ongoing supervision of the offender is with the district court's adult probation services DEPARTMENT, rather than the youth court's juvenile probation services."



NEW SECTION. Section 10.  Public safety. (1) In determining whether the public safety is served by designating a case an extended jurisdiction juvenile prosecution, the court shall consider the following factors:

(a) the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors, the use of a firearm, and the impact on the victim;

(b) the culpability of the youth in committing the alleged offense, including the level of the youth's participation in planning and carrying out the offense and the existence of mitigating factors;

(c) the youth's prior record of delinquency;

(d) the youth's treatment history, including the youth's past willingness to participate meaningfully in available treatment;

(e) the adequacy of the dispositions available in the juvenile justice system; and

(f) the dispositional options available for the youth.

(2) In considering the factors listed in subsection (1), the court shall give greater weight to the seriousness of the alleged offense and the youth's prior record of delinquency than to the other listed factors.



NEW SECTION. Section 11.  Proceedings -- rights. A youth who is the subject of an extended jurisdiction juvenile prosecution has the right to a trial by jury and to the effective assistance of counsel, as provided in 41-5-511.



NEW SECTION. Section 12.  Enforcement of restitution orders. If the court orders payment of restitution and the youth fails to pay the restitution in accordance with the payment schedule or structure established by the court or probation officer, the youth's probation officer may, on the officer's own motion or at the request of the victim, file a petition for violation of probation or ask the court to hold a hearing to determine whether the conditions of probation should be changed. The probation officer shall ask for a hearing if the restitution has not been paid prior to 60 days before the term of probation expires. The court shall schedule and hold the hearing before the youth's term of probation expires.



NEW SECTION. Section 13.  Codification instruction. (1) [Sections 10 and 11] are intended to be codified as an integral part of Title 41, chapter 5, part 11, and the provisions of Title 41, chapter 5, part 11, apply to [sections 10 and 11].

(2) [Section 12] is intended to be codified as an integral part of Title 41, chapter 5, part 5, and the provisions of Title 41, chapter 5, part 5, apply to [section 12].



NEW SECTION. Section 14.  Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.



NEW SECTION. Section 15.  Effective date. [This act] is effective on passage and approval.



NEW SECTION. Section 16.  Applicability. [This act] applies to all offenses committed on or after [the effective date of this act].

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