§ 29-1816 — Arraignment of accused; when considered waived; accused younger than eighteen years of age; move court to waive jurisdiction to juvenile court; findings for decision; transfer to juvenile court; effect; appeal; admission, confession, or statement made by the accused; inadmissible; when

Nebraska § 29-1816

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1)(a) The accused may be arraigned in county court or district court:
(i) If the accused was eighteen years of age or older when the alleged offense was committed;
(ii) If the accused was younger than eighteen years of age and was fourteen years of age or older when an alleged offense punishable as a Class I, IA, IB, IC, ID, II, or IIA felony was committed; or
(iii) If the alleged offense is a traffic offense as defined in section 43-245 .
(b) Arraignment in county court or district court shall be by reading to the accused the complaint or information, unless the reading is waived by the accused when the nature of the charge is made known to him or her. The accused shall then be asked whether he or she is guilty or not guilty of the offense charged. If the accused appears in person and by counsel and goes to trial before a jury regularly impaneled and sworn, he or she shall be deemed to have waived arraignment and a plea of not guilty shall be deemed to have been made.
(2) At the time of the arraignment, the county court or district court shall advise the accused, if the accused was younger than eighteen years of age at the time the alleged offense was committed, that the accused may move the county court or district court at any time not later than thirty days after arraignment, unless otherwise permitted by the court for good cause shown, to waive jurisdiction in such case to the juvenile court for further proceedings under the Nebraska Juvenile Code. This subsection does not apply if the case was transferred to county court or district court from juvenile court.
(3) For motions to transfer a case from the county court or district court to juvenile court:
(a) The county court or district court shall schedule a hearing on such motion within fifteen days. The customary rules of evidence shall not be followed at such hearing. The accused shall be represented by an attorney. The criteria set forth in section 43-276 shall be considered at such hearing. After considering all the evidence and reasons presented by both parties, the case shall be transferred to juvenile court unless a sound basis exists for retaining the case in county court or district court; and
(b) The county court or district court shall make a decision on such motion within thirty days after the hearing and shall set forth findings for the reason for its decision. If the county court or district court determines that the accused should be transferred to the juvenile court, the complete file in the county court or district court shall be transferred to the juvenile court and the complaint, indictment, or information may be used in place of a petition therein. The county court or district court making a transfer shall order the accused to be taken forthwith to the juvenile court and designate where the juvenile shall be kept pending determination by the juvenile court. The juvenile court shall then proceed as provided in the Nebraska Juvenile Code.
(4) An order granting or denying transfer of the case from county or district court to juvenile court shall be considered a final order for the purposes of appeal. Upon entry of an order, any party may appeal to the Court of Appeals within ten days. Such review shall be advanced on the court docket without an extension of time granted to any party except upon a showing of exceptional cause. Appeals shall be submitted, assigned, and scheduled for oral argument as soon as the appellee's brief is due to be filed. The Court of Appeals shall conduct its review in an expedited manner and shall render the judgment and opinion, if any, as speedily as possible. During the pendency of an appeal from an order transferring the case to juvenile court, the juvenile court may enter temporary orders in the best interests of the juvenile.
(5)(a) Except as provided in subdivision (5)(b) of this section, any admission, confession, or statement made by the accused to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of a motion to transfer a case from county court or district court to juvenile court shall be inadmissible in any criminal or civil proceeding.
(b) Subdivision (5)(a) of this section does not prevent any such admission, confession, or statement from being:
(i) Admissible in proceedings relating to such motion to transfer;
(ii) Admissible in disposition proceedings of such accused under the Nebraska Juvenile Code if the case is transferred to juvenile court;
(iii) Included in any presentence investigation report for such accused if the case is not transferred to juvenile court; and
(iv) Admissible in such case to impeach such accused during cross-examination if the accused testifies at trial or during juvenile court proceedings and such testimony is materially inconsistent with a prior statement made by the accused to a psychiatrist, psychologist, therapist, or licensed mental health practitioner for purposes of the motion to transfer such case.
(6) When the accused was younger than eighteen years of age when an alleged offense was committed, the county attorney or city attorney shall proceed under section 43-274 .

Legislative History

Source: G.S.1873, c. 58, § 448, p. 822; R.S.1913, § 9092; C.S.1922, § 10117; Laws 1925, c. 105, § 1, p. 294; C.S.1929, § 29-1815; R.S.1943, § 29-1816; Laws 1947, c. 103, § 1(1), p. 291; Laws 1974, LB 620, § 6; Laws 1975, LB 288, § 2; Laws 1987, LB 34, § 1; Laws 2008, LB1014, § 16; Laws 2010, LB800, § 5; Laws 2014, LB464, § 4; Laws 2015, LB265, § 1; Laws 2015, LB605, § 59; Laws 2017, LB11, § 1; Laws 2021, LB307, § 1; Laws 2024, LB184, § 1; Laws 2024, LB1051, § 1. Cross References: Nebraska Juvenile Code, see section 43-2,129. Annotations: 1. Arraignment 2. Jurisdiction to juvenile court 3. Miscellaneous 1. Arraignment Arraignment complied with statute. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955). Where accused goes to trial without being arraigned and failed to demand formal arraignment, he waives his rights. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944); Hill v. State, 116 Neb. 73, 215 N.W. 789 (1927). Issues are not joined until arraignment and plea to information; no jeopardy in absence of plea. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924). Under prior statute, reading of indictment could not be waived in felony case, and failure to arraign was reversible error. Popel v. State, 105 Neb. 348, 180 N.W. 570 (1920). Formal arraignment is not necessary in misdemeanor. Kruger v. State, 1 Neb. 365 (1871). 2. Jurisdiction to juvenile court Pursuant to subdivision (1)(a)(ii) of this section, whether a juvenile court has jurisdiction over a person is determined not by the person's age at the time of the offense, but, rather, by the person's age at the time he or she is charged for the offense. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022). County courts have not been given authority to decide motions to transfer to juvenile court in cases in which they lack jurisdiction to try the case. State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020). Pursuant to subsection (2) of this section, alleged juvenile offenders have the ability to move for a transfer of their case from a county or district court to a juvenile court and this motion must be made within 30 days after arraignment unless otherwise permitted by the court for good cause shown. State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). Subsection (2) and subdivision (3)(c) of this section provide that an alleged juvenile offender can move for transfer to a juvenile court within 30 days of the juvenile's arraignment and that either the juvenile or the State can appeal an order on the motion within 10 days of its entry. State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018). Pursuant to subdivision (3)(a) of this section, after considering the evidence and the criteria set forth in section 43-276, the court shall transfer the case to juvenile court unless a sound basis exists for retaining the case in county court or district court. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018). Pursuant to subdivision (3)(b) of this section, the court is required to set forth findings for the reason for its decision. State v. Tyler P., 299 Neb. 959, 911 N.W.2d 260 (2018). The general rule is that on request by a juvenile, the district court must transfer a juvenile case involving a felony from district court to juvenile court, unless a sound basis for retaining jurisdiction exists. In deciding whether to grant a requested waiver of the district court's jurisdiction and to transfer the case to juvenile court, the district court having jurisdiction over a pending criminal prosecution is required to consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Reynolds, 246 Neb. 802, 523 N.W.2d 377 (1994). In deciding whether to grant a requested waiver of jurisdiction and transfer proceedings to juvenile court pursuant to this section, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990). This section and section 43-276 provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988). This section and section 43-276 involve a balancing test, namely, public protection and societal security weighed against practical and not problematic rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court. Where the record supported the trial court's findings that the crime was violent, that the defendant may require treatment beyond the age of majority, that defendant's rehabilitative needs were beyond the scope of the juvenile court, and that more protection of the public was required than would be available in juvenile court, the district court did not abuse its discretion in retaining jurisdiction. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987). District court properly refused transfer of minor to juvenile court after a hearing and issuing written findings enumerating the basis for denying transfer. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977). A judgment will not be reversed for failure of trial court to set forth findings for its reason to overrule a motion to transfer case to juvenile court where defendant failed to call trial court's attention to the requirement of the statute. State v. Highly, 195 Neb. 498, 238 N.W.2d 909 (1976). The district court abused its discretion in granting the transfer of two criminal cases to the juvenile court because there was substantial evidence supporting the retention of the cases in the district court for the sake of public safety and societal security, and there was a lack of evidence demonstrating that any further rehabilitation through the juvenile system would be practical and nonproblematical in the limited time left under the juvenile court's jurisdiction. State v. Esai P., 28 Neb. App. 226, 942 N.W.2d 416 (2020). For matters initiated in the county or district court, a party can move to transfer to the juvenile court pursuant to subsection (3) of this section. State v. Comer, 26 Neb. App. 270, 918 N.W.2d 13 (2018). The second degree murder and use of a deadly weapon charges filed against a 15-year-old were retained in the district court; the trial court's denial of a motion to transfer to the juvenile court is reviewed for an abuse of discretion. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018). 3. Miscellaneous When a defendant appeared, was represented by counsel, and went to trial, the defendant waived any argument that rearraignment was necessary. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004). In order to retain jurisdiction pursuant to this section, the district court does not need to resolve every factor in section 43-276 against the juvenile. This section represents the policy decision, made by the Legislature, that decisions made at transfer hearings are to be informed by all of the surrounding circumstances, which may or may not include evidence that is inadmissible at a subsequent criminal trial. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000). A request to a court to waive jurisdiction to the juvenile court raises a jurisdictional challenge, and a defendant may appeal an unfavorable ruling even after entering a plea of guilty or tendering a plea of no contest. State v. Phinney, 235 Neb. 486, 455 N.W.2d 795 (1990). Section is not applicable to misdemeanors. Wozniak v. State, 103 Neb. 749, 174 N.W. 298 (1919); Burroughs v. State, 94 Neb. 519, 143 N.W. 450 (1913). Right to have complaint read to him in filiation proceeding is waived by defendant by proceeding to trial. McNeal v. Hunter, 72 Neb. 579, 101 N.W. 236 (1904). The statutory amendment providing for interlocutory appeals from an order granting or denying transfer of the case from county or district court to juvenile court became effective August 24, 2017. State v. Leroux, 26 Neb. App. 76, 916 N.W.2d 903 (2018).