Del. Code 10, § 1010 : Courts And Judicial Procedures — The Family Court Of The State Of Delaware — Procedure — Proceeding against child as an adult; amenability proceeding; referral to another court

2 Sep 2016

Current through 2016 Legislative Session, Act 399

(a) A child shall be proceeded against as an adult where:
(1) The acts alleged to have been committed constitute first- or second-degree murder, rape in the first degree or rape in the second degree, assault in the first degree, robbery in the first degree (where such offense involves the display of what appears to be a deadly weapon or involves the representation by word or conduct that the person was in possession or control of a deadly weapon or involves the infliction of serious physical injury upon any person who was not a participant in the crime and where the child has previously been adjudicated delinquent of 1 or more offenses which would constitute a felony were the child charged under the laws of this State) or kidnapping in the first degree, or any attempt to commit said crimes;
(2) The child is not amenable to the rehabilitative processes available to the Court;
(3) The child has previously been adjudicated delinquent of 1 or more offenses which would constitute a felony were he or she charged as an adult under the laws of this State, and has reached his or her sixteenth birthday and the acts which form the basis of the current allegations constitute 1 or more of the following offenses: conspiracy first degree, rape in the third degree, arson first degree, burglary first degree, home invasion, §§ 4752 and 4753 of Title 16 or any attempt to commit any of the offenses set forth in this paragraph;
(4) The General Assembly has heretofore or shall hereafter so provide.
(b) In all cases specified in (a) the Court shall, upon application, hold a preliminary hearing and, if the facts warrant, thereafter refer the child to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.
(c)
(1) In determining whether a child is amenable to the rehabilitative processes of the Court, the Court shall take into consideration, among others, the following factors which are deemed to be nonexclusive:
a. Whether, in view of the age and other personal characteristics of the child, the people of Delaware may best be protected and the child may best be made a useful member of society by some form of correctional treatment which the Family Court lacks power to assign; or
b. Whether it is alleged death or serious personal injury was inflicted by the child upon anyone in the course of commission of the offense or in immediate flight therefrom; or
c. Whether the child has been convicted of any prior criminal offense; or
d. Whether the child has previously been subjected to any form of correctional treatment by the Family Court; or
e. Whether it is alleged a dangerous instrument was used by the child; or
f. Whether other participants in the same offense are being tried as adult offenders.
(2) The Court shall defer further proceedings in the Family Court and shall conduct a hearing to determine whether the child is amenable to the rehabilitative process of the Court:
a. Upon motion of the Court, whenever a child is charged with delinquency;
b. Upon motion of the Attorney General, whenever a child has reached his or her 14th birthday and is thereafter charged with being delinquent; or
c. Whenever a child has reached his or her 14th birthday, and is thereafter charged in accordance with § 1009(c)(5) of this title.
(3) Notwithstanding any provision of this section or title to the contrary, any child who has previously been declared to be non-amenable to the rehabilitative processes of the Court pursuant to this section, or who has previously been the subject of a denied application for transfer pursuant to § 1011 of this title, and who thereafter is charged with being delinquent shall be referred to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.

If it decides that the child is amenable, it may proceed to hear the case. If it decides that the child is not amenable, it shall refer the child to the Superior Court or to any other court having jurisdiction over the offense for trial as an adult.

(d) Notwithstanding any provisions of this title to the contrary, in any case in which the Superior Court has jurisdiction over a child, the Court shall retain jurisdiction for purposes of sentencing and all other postconviction proceedings if any judge or jury shall find the child guilty of a lesser included crime following a trial or plea of guilty.
(e) Notwithstanding any provision of this section or title to the contrary, when a child has reached his or her 15th birthday and is thereafter charged with being delinquent by having committed any offense which would constitute a felony were he or she charged as an adult under the laws of this State, said offense occurring while the child was an escapee from any Level IV or V facility operated for or by the Department of Services for Children, Youth and Their Families, upon motion of the Attorney General, or upon its own motion, the Court shall defer further proceedings in the Family Court and shall conduct a hearing to determine whether the child should be referred to the Superior Court for trial as an adult. If, at the conclusion of the hearing, the Court finds that evidence demonstrates that there is a fair likelihood that the child may be convicted of the charge or charges, it shall refer the child to the Superior Court for trial as an adult. If, at the conclusion of the hearing, the Court determines that there is no fair likelihood of conviction, the case shall remain within the jurisdiction of the Family Court, subject to all other provisions of this section and title.
Del. C. § 1010
10 Del. C. 1953, § 938; 58 Del. Laws, c. 114, § 1; 60 Del. Laws, c. 657, § 2; 66 Del. Laws, c. 269, §15; 69 Del. Laws, c. 213, §2; 69 Del. Laws, c. 335, §1; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 262, § 2; 70 Del. Laws, c. 263, § 1; 70 Del. Laws, c. 596, §§ 2 - 6; 70 Del. Laws, c. 598, §§ 1 - 3; 71 Del. Laws, c. 285, §§ 25, 26; 73 Del. Laws, c. 408, § 1; 74 Del. Laws, c. 106, §§ 28, 33; 75 Del. Laws, c. 195, § 2; 78 Del. Laws, c. 13, § 1; 78 Del. Laws, c. 252, § 3.;