HOUSE BILL No. 4851 May 29, 1997, Introduced by Reps. Willard, DeHart, McBryde, Wetters, Goschka, Kaza, Dalman, Brackenridge, Mans and Jaye and referred to the Committee on Judiciary. A bill to amend 1939 PA 288, entitled "An act to revise and consolidate the statutes relating to cer- tain aspects of the organization and jurisdiction of the probate court of this state, the powers and duties of such court and the judges and other officers thereof, certain aspects of the stat- utes of descent and distribution of property, and the statutes governing the change of name of adults and children, the adoption of adults and children, and the jurisdiction of the juvenile division of the probate court; to prescribe the powers and duties of the juvenile division of the probate court, and the judges and other officers thereof; to prescribe the manner and time within which actions and proceedings may be brought in the juvenile division of the probate court; to prescribe pleading, evidence, practice, and procedure in actions and proceedings in the juve- nile division of the probate court; to provide for appeals from the juvenile division of the probate court; to prescribe the powers and duties of certain state departments, agencies, and officers; and to provide remedies and penalties for the violation of this act," by amending section 4 of chapter XIIA (MCL 712A.4[1]), as amended by 1996 PA 409. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 00983'97 JOJ 2 1 CHAPTER XIIA 2 Sec. 4. (1) If a juvenile 14 years of age or older is 3 accused of an act that if committed by an adult would be a 4 felony, thejudge of the family division of circuitcourt in 5 the county in which the offense is alleged to have been committed 6 may waive jurisdiction under this section upon motion of the 7 prosecuting attorney. After waiver, the juvenile may be tried in 8 the court having general criminal jurisdiction of the offense. 9 (2) Before conducting a hearing on the motion to waive 10 jurisdiction, the court shall give notice of the hearing in the 11 manner provided by supreme court rule to the juvenile and the 12 prosecuting attorney and, if addresses are known, to the 13 juvenile's parents or guardians. The notice shall state clearly 14 that a waiver of jurisdiction to a court of general criminal 15 jurisdiction has been requested and that, if granted, the juve- 16 nile can be prosecuted for the alleged offense as though he or 17 she were an adult. 18 (3) Before the court waives jurisdiction, the court shall 19 determine on the record if there is probable cause to believe 20 that an offense has been committed that if committed by an adult 21 would be a felony and if there is probable cause to believe 22thatthe juvenile committed the offense. Before a juvenile may 23 waive a probable cause hearing under this subsection, the court 24 shall inform the juvenile that a waiver of this subsection waives 25 the preliminary examination required by chapter VI of the code of 26 criminal procedure,Act No. 175 of the Public Acts of 1927,00983'97 3 1being sections 766.1 to 766.18 of the Michigan Compiled Laws2 1927 PA 175, MCL 766.1 TO 766.18. 3 (4) Upon a showing of probable cause under subsection (3), 4 the court shall conduct a hearing to determine if the best inter- 5 ests of the juvenile and the public would be served by granting a 6 waiver of jurisdiction to the court of general criminal 7 jurisdiction. In making its determination, the court shall con- 8 sider all of the following criteria, giving greater weight to the 9 seriousness of the alleged offense and the juvenile's prior 10 record of delinquency than to the other criteria: 11 (a) The seriousness of the alleged offense in terms of com- 12 munity protection, including, but not limited to, the existence 13 of any aggravating factors recognized by the sentencing guide- 14 lines, the use of a firearm or other dangerous weapon, and the 15 impact on any victim. 16 (b) The culpability of the juvenile in committing the 17 alleged offense, including, but not limited to, the level of the 18 juvenile's participation in planning and carrying out the offense 19 and the existence of any aggravating or mitigating factors recog- 20 nized by the sentencing guidelines. 21 (c) The juvenile's prior record of delinquency, including, 22 but not limited to, any record of detention, any police record, 23 any school record, or any other evidence indicating prior delin- 24 quent behavior. 25 (d) The juvenile's programming history, including, but not 26 limited to, the juvenile's past willingness to participate 27 meaningfully in available programming. 00983'97 4 1 (e) The adequacy of the punishment or programming available 2 in the juvenile justice system. 3 (f) The dispositional options available for the juvenile. 4 (5) THE VICTIM OF AN OFFENSE FOR WHICH WAIVER IS SOUGHT HAS 5 THE RIGHT TO APPEAR AND MAKE AN ORAL IMPACT STATEMENT AT THE 6 HEARING ON THE MOTION TO WAIVE JURISDICTION. AS USED IN THIS 7 SUBSECTION, "OFFENSE" AND "VICTIM" MEAN THOSE TERMS AS DEFINED IN 8 SECTION 31 OF THE CRIME VICTIM'S RIGHTS ACT, 1985 PA 87, 9 MCL 780.781. 10 (6)(5)If the court determines that there is probable 11 cause to believe that an offense has been committed that if com- 12 mitted by an adult would be a felony and that the juvenile com- 13 mitted the offense, the court shall waive jurisdiction of the 14 juvenile if the court finds that the juvenile has previously been 15 subject to the jurisdiction of the circuit court under this sec- 16 tion or section 606 of the revised judicature act of 1961,Act17No. 236 of the Public Acts of 1961, being section 600.606 of the18Michigan Compiled Laws1961 PA 236, MCL 600.606, or the 19 recorder's court of the city of Detroit under this section or 20 section 10a(1)(c) ofAct No. 369 of the Public Acts of 1919,21being section 725.10a of the Michigan Compiled Laws1919 PA 369, 22 MCL 725.10A. 23 (7)(6)If legal counsel has not been retained or 24 appointed to represent the juvenile, the court shall advise the 25 juvenile and his or her parents, guardian, custodian, or guardian 26 ad litem of the juvenile's right to representation andappoint27 APPOINTED legal counsel. If the court appoints legal counsel, 00983'97 5 1 the judge may assess the cost of providing legal counsel as costs 2 against the juvenile or those responsible for his or her support, 3 or both, if the persons to be assessed are financially able to 4 comply. 5 (8)(7)Legal counsel shall have access to records or 6 reports provided and received by the judge as a basis for deci- 7 sion in proceedings for waiver of jurisdiction. A continuance 8 shall be granted at legal counsel's request if any report, infor- 9 mation, or recommendation not previously available is introduced 10 or developed at the hearing and the interests of justice require 11 a continuance. 12 (9)(8)The court shall enter a written order either 13 granting or denying the motion to waive jurisdiction and the 14 court shall state on the record or in a written opinion the 15 court's findings of fact and conclusions of law forming the basis 16 for entering the order. If a juvenile is waived, a transcript of 17 the court's findings or a copy of the written opinion shall be 18 sent to the court of general criminal jurisdiction. 19 (10)(9)If the court does not waive jurisdiction, a tran- 20 script of the court's findings or, if a written opinion is pre- 21 pared, a copy of the written opinion shall be sent to the prose- 22 cuting attorney, juvenile, or juvenile's attorney upon request. 23 (11)(10)If the court waives jurisdiction, the juvenile 24 shall be arraigned on an information filed by the prosecutor in 25 the court of general criminal jurisdiction. The probable cause 26 finding under subsection (3) satisfies the requirements of, and 27 is the equivalent of, the preliminary examination required by 00983'97 6 1 chapter VI ofAct No. 175 of the Public Acts of 1927THE CODE 2 OF CRIMINAL PROCEDURE, 1927 PA 175, MCL 766.1 TO 766.18. 3 (12)(11)As used in this section, "felony" means an 4 offense punishable by imprisonment for more than 1 year or an 5 offense designated by law as a felony. 6 Enacting section 1. This amendatory act does not take 7 effect unless Senate Bill No. _____ or House Bill No. _____ 8 (request no. 00983'97 a) of the 89th Legislature is enacted into 9 law. 00983'97 Final page. JOJ