§ 26-11-4 — Criminal proceedings against child charged with a felony permitted by circuit court--Transfer hearing--Factors considered--Order holding child--Retention of jurisdiction by court.

South Dakota § 26-11-4

• Jurisdiction: South Dakota
• Title 26: MINORS
• Ch. 26-11: CRIMINAL PROCEEDINGS AGAINST MINORS

Text

Except as provided in § 26-11-3.1 , the circuit court may, in any case of a delinquent child against whom criminal felony charges have been filed, after transfer hearing, permit such child to be proceeded against in accordance with the laws that may be in force in this state governing the commission of crimes. In such cases the petition filed under chapter 26-7A shall be dismissed. The hearing shall be conducted as provided by this section. At the transfer hearing, the court shall consider only whether it is contrary to the best interest of the child and of the public to retain jurisdiction over the child. The following factors may be considered by the court in determining whether a child should be transferred: (1) The seriousness of the alleged felony offense to the community and whether protection of the community requires waiver; (2) Whether the alleged felony offense was committed in an aggressive, violent, premeditated, or willful manner; (3) Whether the alleged felony offense was against persons or property with greater weight being given to offenses against persons; (4) The prosecutive merit of the complaint. The state is not required to establish probable cause to show prosecutive merit; (5) The desirability of trial and disposition of the entire felony offense in one proceeding if the child's associates in the alleged felony offense are adults; (6) The record and previous history of the juvenile; (7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if the juvenile is found to have committed the alleged felony offense, by the use of procedures, services, and facilities currently available to the juvenile court. Written reports and other materials relating to the child's mental, physical, and social history may be considered by the court, if the person who prepared the report and other material appears and is subject to both direct and cross - examination. If the court finds that a child should be held for criminal proceedings in a court of competent jurisdiction, the court shall enter an order certifying to that effect. The order shall contain findings of fact upon which the court's decision is based. The findings may not be set aside upon review unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. If an order of certification is made, the jurisdiction of the original court as to the child concerned is terminated. However, the court to which the proceedings are transferred may require the original court to hold the child in detention pending proceedings in that court. If the court finds that it is in the best interest of the child and of the public for the court to retain jurisdiction, it shall proceed with the adjudicatory hearing. If the court to which any proceeding regarding a delinquent child is transferred finds that it is in the best interest of the child and of the public for the court to retain jurisdiction, the finding is definitive, during the balance of the child's minority, as to the subsequent commission of any crime, petty offense, or municipal ordinance violation, and the child may no longer be considered a child for the purposes of this chapter. However, the finding is not definitive, if the delinquent child has been found not guilty of the offense for which the original transfer was ordered.

Legislative History

SDC 1939, § 43.0313; SL 1968, ch 164, § 10; SL 1971, ch 166, § 6; SL 1977, ch 210; SL 1994, ch 219, § 9; SL 1994, ch 221; SL 1997, ch 163, § 2.