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Searching 2021-2022 Session

The Vermont Statutes Online

 

Title 33: Human Services

Chapter 052A: YOUTHFUL OFFENDERS

  • § 5280. Commencement of youthful offender proceedings in the Family Division

    (a) A proceeding under this chapter shall be commenced by:

    (1) the filing of a youthful offender petition by a State's Attorney; or

    (2) transfer to the Family Court of a proceeding from the Criminal Division of the Superior Court as provided in section 5281 of this title.

    (b) A State's Attorney may commence a proceeding in the Family Division of the Superior Court concerning a child who is alleged to have committed an offense after attaining 14 years of age but not 22 years of age that could otherwise be filed in the Criminal Division.

    (c) If a State's Attorney files a petition under subdivision (a)(1) of this section, the case shall proceed as provided under subsection 5281(b) of this title.

    (d) Within 15 days after the commencement of a youthful offender proceeding pursuant to subsection (a) of this section, the youth shall be offered a risk and needs screening, which shall be conducted by the Department or by a community provider that has contracted with the Department to provide risk and needs screenings. The risk and needs screening shall be completed prior to the youthful offender status hearing held pursuant to section 5283 of this title. Unless the court extends the period for the risk and needs screening for good cause shown, the Family Division shall reject the case for youthful offender treatment if the youth does not complete the risk and needs screening within 15 days of the offer for the risk and needs screening.

    (1) The Department or the community provider shall report the risk level result of the screening, the number and source of the collateral contacts made, and the recommendation for charging or other alternatives to the State's Attorney.

    (2) Information related to the present alleged offense directly or indirectly derived from the risk and needs screening or other conversation with the Department or community-based provider shall not be used against the youth in the youth's criminal or juvenile case for any purpose, including impeachment or cross-examination. However, the fact of participation in risk and needs screening may be used in subsequent proceedings.

    (e) The State's Attorney shall refer directly to court diversion a youth alleged to have committed any offense other than those specified in subsection 5204(a) of this title who presents a low to moderate risk to reoffend based on the results of the risk and needs screening, unless the State's Attorney states on the record at the hearing held pursuant to section 5283 of this title why a referral would not serve the ends of justice. If the court diversion program does not accept the case or if the youth fails to complete the program in a manner deemed satisfactory and timely by the provider, the youth's case shall return to the State's Attorney for charging consideration. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2017, No. 201 (Adj. Sess.), § 8; 2019, No. 45, § 4, eff. May 30, 2019; 2019, No. 124 (Adj. Sess.), § 8.)

  • § 5281. Motion in Criminal Division of Superior Court

    (a) A motion may be filed in the Criminal Division of the Superior Court requesting that a defendant under 22 years of age in a criminal proceeding who had attained 12 years of age but not 22 years of age at the time the offense is alleged to have been committed be treated as a youthful offender. The motion may be filed by the State's Attorney, the defendant, or the court on its own motion.

    (b) Unless the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, upon the filing of a motion under this section or the filing of a youthful offender petition pursuant to section 5280 of this title, the Family Division shall hold a hearing pursuant to section 5283 of this title. Pursuant to section 5110 of this title, the hearing shall be confidential. Copies of all records relating to the case shall be forwarded to the Family Division. Conditions of release and any Department of Corrections supervision or custody shall remain in effect until:

    (1) the Family Division accepts the case for treatment as a youthful offender and orders conditions of juvenile probation pursuant to section 5284 of this title;

    (2) any conditions of release or bail are modified, amended, or vacated pursuant to 13 V.S.A. chapter 229; or

    (3) the case is otherwise concluded.

    (c)(1) If the Family Division rejects the case for youthful offender treatment pursuant to section 5284 of this title, the case shall be transferred to the Criminal Division. The conditions of release imposed by the Criminal Division shall remain in effect, and the case shall proceed as though the motion for youthful offender treatment or youthful offender petition had not been filed.

    (2) Subject to Rule 11 of the Vermont Rules of Criminal Procedure and Rule 410 of the Vermont Rules of Evidence, the Family Division's denial of the motion for youthful offender treatment and any information related to the youthful offender proceeding shall be inadmissible against the youth for any purpose in the subsequent Criminal Division proceeding.

    (d) If the Family Division accepts the case for youthful offender treatment, the case shall proceed to a confidential merits hearing or admission pursuant to sections 5227-5229 of this title. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2019, No. 45, § 5, eff. May 30, 2019.)

  • § 5282. Report from the Department

    (a) Within 30 days after the youth has completed the risk and needs screening pursuant to section 5280 of this title, unless the court extends the period for good cause shown or the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, the Department for Children and Families shall file a report with the Family Division of the Superior Court.

    (b) A report filed pursuant to this section shall include the following elements:

    (1) a recommendation as to whether diversion is appropriate for the youth because the youth is a low to moderate risk to reoffend;

    (2) a recommendation as to whether youthful offender status is appropriate for the youth; and

    (3) a description of the services that may be available for the youth.

    (c) A report filed pursuant to this section is privileged and shall not be disclosed to any person other than:

    (1) the Department;

    (2) the court;

    (3) the State's Attorney;

    (4) the youth, the youth's attorney, and the youth's guardian ad litem;

    (5) the youth's parent, guardian, or custodian if the youth is under 18 years of age, unless the court finds that disclosure would be contrary to the best interests of the child;

    (6) the Department of Corrections; or

    (7) any other person when the court determines that the best interests of the youth would make such a disclosure desirable or helpful. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2017, No. 201 (Adj. Sess.), § 9; 2019, No. 45, § 6, eff. May 30, 2019.)

  • § 5283. Hearing in Family Division

    (a) Timeline. Unless the State's Attorney refers the youth directly to court diversion pursuant to subsection 5280(e) of this title, a youthful offender consideration hearing shall be held not later than 60 days after the transfer of the case from the Criminal Division or filing of a youthful offender petition in the Family Division.

    (b) Notice. Notice of the hearing shall be provided to the State's Attorney; the youth; the youth's parent, guardian, or custodian; the Department; and the Department of Corrections.

    (c) Hearing procedure.

    (1) If the motion is contested, all parties shall have the right to present evidence and examine witnesses. Hearsay may be admitted and may be relied on to the extent of its probative value. If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.

    (2) For individuals who had attained 18 years of age but not 22 years of age at the time the act is alleged to have been committed, hearings under 5284(a) of this title shall be open to the public. All other youthful offender proceedings shall be confidential.

    (d) Burden of proof. The burden of proof shall be on the moving party to prove by a preponderance of the evidence that a child should be granted youthful offender status. If the court makes the motion, the burden shall be on the youth.

    (e) Further hearing. On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2019, No. 45, § 7, eff. May 30, 2019.)

  • § 5284. Youthful Offender Determination and Disposition Order

    (a) In a hearing on a motion for youthful offender status, the court shall first consider whether public safety will be protected by treating the youth as a youthful offender. If the court finds that public safety will not be protected by treating the youth as a youthful offender, the court shall deny the motion and transfer the case to the Criminal Division of the Superior Court pursuant to subsection 5281(d) of this title. If the court finds that public safety will be protected by treating the youth as a youthful offender, the court shall proceed to make a determination under subsection (b) of this section.

    (b)(1) The court shall deny the motion if the court finds that:

    (A) the youth is not amenable to treatment or rehabilitation as a youthful offender; or

    (B) there are insufficient services in the juvenile court system and the Department for Children and Families and the Department of Corrections to meet the youth's treatment and rehabilitation needs.

    (2) The court shall grant the motion if the court finds that:

    (A) the youth is amenable to treatment or rehabilitation as a youthful offender; and

    (B) there are sufficient services in the juvenile court system and the Department for Children and Families and the Department of Corrections to meet the youth's treatment and rehabilitation needs.

    (c) If the court approves the motion for youthful offender treatment after an adjudication pursuant to subsection 5281(d) of this title, the court:

    (1) shall approve a disposition case plan and impose conditions of juvenile probation on the youth; and

    (2) may transfer legal custody of the youth to a parent, relative, person with a significant relationship with the youth, or Commissioner, provided that any transfer of custody shall expire on the youth's 18th birthday.

    (d) The Department for Children and Families and the Department of Corrections shall be responsible for supervision of and providing services to the youth until he or she reaches 22 years of age. Both Departments shall designate a case manager who together shall appoint a lead Department to have final decision-making authority over the case plan and the provision of services to the youth. The youth shall be eligible for appropriate community-based programming and services provided by both Departments. (Added 2017, No. 72, § 5, eff. July 1, 2018.)

  • § 5285. Modification or revocation of disposition

    (a) If it appears that the youth has violated the terms of juvenile probation ordered by the court pursuant to subdivision 5284(c)(1) of this title, a motion for modification or revocation of youthful offender status may be filed in the Family Division of the Superior Court. The court shall set the motion for hearing as soon as practicable. The hearing may be joined with a hearing on a violation of conditions of probation under section 5265 of this title. A supervising juvenile or adult probation officer may detain in an adult facility a youthful offender who has attained 18 years of age for violating conditions of probation.

    (b) A hearing under this section shall be held in accordance with section 5268 of this title.

    (c) If the court finds after the hearing that the youth has violated the terms of his or her probation, the court may:

    (1) maintain the youth's status as a youthful offender, with modified conditions of juvenile probation if the court deems it appropriate;

    (2) revoke the youth's status as a youthful offender and transfer the case with a record of the petition, affidavit, adjudication, disposition, and revocation to the Criminal Division for sentencing; or

    (3) transfer supervision of the youth to the Department of Corrections with all of the powers and authority of the Department and the Commissioner under Title 28, including graduated sanctions and electronic monitoring.

    (d) If a youth's status as a youthful offender is revoked and the case is transferred to the Criminal Division pursuant to subdivision (c)(2) of this section, the court shall enter a conviction of guilty based on the admission to or finding of merits, hold a sentencing hearing, and impose sentence. Unless it serves the interest of justice, the case shall not be transferred back to the Family Division pursuant to section 5203 of this title. When determining an appropriate sentence, the court may take into consideration the youth's degree of progress toward or regression from rehabilitation while on youthful offender status. The Criminal Division shall have access to all Family Division records of the proceeding. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2017, No. 201 (Adj. Sess.), § 10; 2019, No. 45, § 8, eff. May 30, 2019.)

  • § 5286. Review prior to 18 years of age

    (a) If a youth is on probation as a youthful offender prior to reaching 18 years of age, the Family Division shall review the youth's case before he or she reaches 18 years of age and set a hearing to determine whether the court's jurisdiction over the youth should be continued past 18 years of age. The hearing may be joined with a motion to terminate youthful offender status under section 5285 of this title. The court shall provide notice and an opportunity to be heard at the hearing to the State's Attorney, the youth, the Department for Children and Families, and the Department of Corrections.

    (b) After receiving a notice of review under this section, the State may file a motion to modify or revoke pursuant to section 5285 of this title. If such a motion is filed, it shall be consolidated with the review under this section and all options provided for under section 5285 of this title shall be available to the court.

    (c) The following reports shall be filed with the court prior to the hearing:

    (1) The Department for Children and Families and the Department of Corrections shall jointly report their recommendations, with supporting justifications, as to whether the Family Division should continue jurisdiction over the youth past 18 years of age and, if continued jurisdiction is recommended, propose a case plan for the youth to ensure compliance with and completion of the juvenile disposition.

    (2) If the Departments recommend continued supervision of the youthful offender past 18 years of age, the Departments shall report on the services that would be available for the youth.

    (d) If the court finds that it is in the best interests of the youth and consistent with community safety to continue the case past 18 years of age, it shall make an order continuing the court's jurisdiction up to 22 years of age. The Department for Children and Families and the Department of Corrections shall jointly develop a case plan for the youth and coordinate services and share information to ensure compliance with and completion of the juvenile disposition.

    (e) If the court finds that it is not in the best interests of the youth to continue the case past 18 years of age, it shall terminate the disposition order, discharge the youth, and dismiss the case in accordance with subsection 5287(c) of this title. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2019, No. 45, § 9, eff. May 30, 2019.)

  • § 5287. Termination or continuance of probation

    (a) A motion or stipulation may be filed at any time in the Family Division requesting that the court terminate the youth's status as a youthful offender and discharge him or her from probation. The motion may be filed by the State's Attorney, the youth, the Department, or the court on its own motion.

    (b) In determining whether a youth has successfully completed the terms of probation, the court shall consider:

    (1) the degree to which the youth fulfilled the terms of the case plan and the probation order;

    (2) the youth's performance during treatment;

    (3) reports of treatment personnel; and

    (4) any other relevant facts associated with the youth's behavior.

    (c) If the court finds that the youth has successfully completed the terms of the probation order, it shall terminate youthful offender status, discharge the youth from probation, and file a written order dismissing the Family Division case. The Family Division shall provide notice of the dismissal to the Criminal Division, which shall dismiss the criminal case.

    (d) Upon discharge and dismissal under subsection (c) of this section, all records relating to the case in the Criminal Division shall be expunged, and all records relating to the case in the Family Court shall be sealed pursuant to section 5119 of this title.

    (e) If the court denies the motion to discharge the youth from probation, the court may extend or amend the probation order as it deems necessary.

    (f) Upon the termination of the period of probation, the youth shall be discharged from probation. (Added 2017, No. 72, § 5, eff. July 1, 2018; amended 2019, No. 124 (Adj. Sess.), § 9.)

  • § 5288. Rights of victims in youthful offender proceedings

    (a) The victim in a proceeding involving a youthful offender shall have the following rights:

    (1) to be notified by the prosecutor in a timely manner when a court proceeding is scheduled to take place and when a court proceeding to which he or she has been notified will not take place as scheduled;

    (2) to be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or her views concerning the offense and the youth;

    (3) to request notification by the agency having custody of the youth before the youth is released from a residential facility;

    (4) to be notified by the prosecutor as to the final disposition of the case; and

    (5) to be notified by the prosecutor of the victim's rights under this section.

    (b) In accordance with court rules, at a hearing on a motion for youthful offender treatment, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition. In ordering disposition, the court shall consider any views offered at the hearing by the victim. If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.

    (c) No youthful offender proceeding shall be delayed or voided by reason of the failure to give the victim the required notice or the failure of the victim to appear.

    (d) As used in this section, "victim" shall have the same meaning as in 13 V.S.A. § 5301(4). (Added 2017, No. 72, § 5, eff. July 1, 2018.)