West Virginia Code 49-4-708 – Preliminary hearing; counsel; custody; court requirements; preadjudicatory community supervision period
(a) Following the filing of a juvenile petition, unless a preliminary hearing has previously been held in conjunction with a detention hearing with respect to the same charge contained in the petition, the circuit court judge or magistrate shall hold a preliminary hearing. In the event that the juvenile is being detained, the hearing shall be held within ten days of the time the juvenile is placed in detention unless good cause is shown for a continuance. If no preliminary hearing is held within ten days of the time the juvenile is placed in detention, the juvenile shall be released on recognizance unless the hearing has been continued for good cause. If the judge is in another county in the circuit, the hearing may be conducted in that other county or by video conferencing. Written notice shall be provided to all parties of the availability to participate by videoconferencing. The preliminary hearing may be waived by the juvenile, upon advice of counsel. At the hearing, the circuit court judge or magistrate shall:
Terms Used In West Virginia Code 49-4-708
- child: means an individual who meets one of the following conditions:
(A) Is under thirteen years of age. See West Virginia Code 49-1-202
- Continuance: Putting off of a hearing ot trial until a later time.
- Court: means the circuit court of the county with jurisdiction of the case or the judge in vacation unless otherwise specifically provided. See West Virginia Code 49-1-207
- Custodian: means a person who has or shares actual physical possession or care and custody of a child, regardless of whether that person has been granted custody of the child by any contract or agreement. See West Virginia Code 49-1-204
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Facility: means a place or residence, including personnel, structures, grounds, and equipment used for the care of a child or children on a residential or other basis for any number of hours a day in any shelter or structure maintained for that purpose. See West Virginia Code 49-1-206
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Juvenile: means any person under eighteen years of age or is a transitioning adult. See West Virginia Code 49-1-202
- Juvenile delinquent: means a juvenile who has been adjudicated as one who commits an act which would be a crime under state law or a municipal ordinance if committed by an adult. See West Virginia Code 49-1-202
- Pre-adjudicatory community supervision: means supervision provided to a youth prior to adjudication, for a period of supervision up to one year for an alleged status or delinquency offense. See West Virginia Code 49-1-206
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Status offender: means a juvenile who has been adjudicated as one:
(A) Who habitually and continually refuses to respond to the lawful supervision by his or her parents, guardian or legal custodian such that the juvenile'. See West Virginia Code 49-1-202
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(1) If the juvenile is not represented by counsel, inform the juvenile and his or her parents, guardian or custodian or any other person standing in loco parentis to him or her of the juvenile's right to be represented at all stages of proceedings under this article and the right to have counsel appointed;
(2) Appoint counsel by order entered of record, if counsel has not already been retained, or appointed. Counsel must represent the child until he or she is no longer under the jurisdiction of the court;
(3) Determine after hearing if there is probable cause to believe that the juvenile is a status offender or a juvenile delinquent. If probable cause is not found, the juvenile, if in detention, shall be released and the proceedings dismissed. If probable cause is found, the case shall proceed to adjudication. At this hearing or as soon thereafter as is practicable, the date for the adjudicatory hearing shall be set to give the juvenile and the juvenile's parents and attorney at least ten days' notice unless notice is waived by all parties;
(4) In lieu of placing the juvenile in a detention facility, the court may place the juvenile in the temporary legal and/or physical custody of the department. If the juvenile is detained, the detention may not continue longer than thirty days without commencement of the adjudicatory hearing unless good cause for a continuance is shown by either party or, if a jury trial is demanded, no longer than the next regular term of the court. A juvenile who is alleged to be a status offender may not be placed in a secure detention facility; and
(5) Inform the juvenile of the right to demand a jury trial.
(b) The juvenile may move to be allowed a preadjudicatory community supervision period not to exceed one year. If the court is satisfied that the best interest of the juvenile is likely to be served by a preadjudicatory community supervision period, the court may delay the adjudicatory hearing and allow a preadjudicatory community supervision period upon terms calculated to serve the rehabilitative needs of the juvenile. At the conclusion of the preadjudicatory community supervision period, the court shall dismiss the proceeding if the terms have been fulfilled; otherwise, the court shall proceed to the adjudicatory stage. A motion for a pre-adjudicatory community supervision period, may not be construed as an admission or be used as evidence. Preadjudicatory community supervision periods authorized by this subsection may be, in the court's discretion, either custodial or noncustodial.