ZONAS DE MINERALIZACION.

INTRODUCTION

Waiver is one of the most significant actions that can occur in the early stages of a case involving a child charged with a criminal offense. Waiver is the transfer of jurisdiction of a child’s case from family court to a court which would have trial jurisdiction if the offense was committed by an adult.

The waiver process is initiated by the solicitor who makes a motion to transfer jurisdiction and waive the child to adult court. The solicitor will also make a motion that DJJ conduct a pre-waiver evaluation. The defense may also have the child undergo an independent expert evaluation.

Upon a motion to transfer jurisdiction, the family court must determine if it is in the best interest of both the child and the community before granting the transfer request. State v. Kelsey, 331 S.C. 50, 64, 502 S.E.2d 63, 70 (1998). The family court must consider eight factors, as approved by the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in making this determination. State v. Pittman, 373 S.C. 527, 647 S.E.2d 144, (2007)

ELIGIBILITY

A family court judge has the authority to waive a child who is: any age and charged with murder;

16 and charged with a misdemeanor, a Class E or F felony as defined in § 16-1-20, or a felony which, if committed by an adult, would carry a maximum term of imprisonment of 10 years or less, after full investigation; 14 or 15 and charged with an offense which, if committed by an adult, would

be a Class A,B,C, or D felony or a felony which provides for a maximum term of imprisonment of 15 years or more, after full investigation and a hearing; and

14 or older and charged with §16-23-430(1) (carrying a weapon on school property), §16-23-20 (unlawful carrying of a handgun), or §44-53-445 (unlawful distribution of drugs within a half-mile of a school), after full investigation and a hearing. § 63-19-1210(4)-(6),(9).

A family court judge is required to waive a child 14 or older charged with an offense which, if committed by an adult provide for a term of imprisonment of ten years or more and the child previously has been adjudicated or convicted for two prior offenses which, if committed by an adult, provide for a term of imprisonment of ten years or more. (An adjudication or conviction is considered a second

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adjudication or conviction only if the second offense was committed after the sentence for the first offense was imposed.) § 63-19-1210(10).

In Slocumb v. State, 522 S.E.2d 809 (S.C. 1999), the court held that § 16-3-659

prohibits a child under fourteen from being waived to general sessions court on a criminal sexual conduct charge.

MURDER AND CRIMINAL SEXUAL CONDUCT CASES

When a child is charged with murder or with criminal sexual conduct, the solicitor has 30 days after filing the petition to request in writing that the case be transferred to general sessions court. The family court judge is authorized to determine this request. If the judge denies the request, the solicitor has 5 days to appeal the decision to the circuit court. The circuit court judge who hears the appeal has the discretion to retain jurisdiction in general sessions or relinquish jurisdiction to the family court. § 63-19-1210(6).

A child under 14 cannot be waived to general sessions court on a criminal sexual conduct charge. § 16-3-659; Slocumb v. State, 522 S.E.2d 809 (S.C. 1999). Section 16-3-659 states that the "common law rule that a boy under fourteen years is conclusively presumed to be incapable of committing the crime of rape shall not be enforced in this State. Provided, that any person under the age of 14 shall be tried as a juvenile for any violations of §§ 16-3-651 to 659.1 (criminal sexual conduct offenses).”

PRE-WAIVER EVALUATION REPORT

After moving to waive, the solicitor will generally move that the child undergo a pre-waiver evaluation.

The report is typically divided into 2 parts:

One part is conducted by a community specialist in the county. This part contains a social history of the child, including prior court history, a family description, a report on social agencies involved with the child, a physical description, school information, early development/medical history, information regarding community and home adjustments, etc.

The second part is conducted by a DJJ psychologist. This part contains a referral statement, sources of information, a mental status examination, a psychological summary, and conclusions. These conclusions are drawn from an analysis of the factors the court will consider in determining whether or not to waive the child. These factors include the level of sophistication and maturity of the child; the likelihood of reasonable rehabilitation; adequate protection of the public; and procedures, services, and facilities currently available to the family court which could benefit the child.

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WAIVER HEARING

The waiver hearing is generally the most serious of all hearings for a child involved in the juvenile justice system. At the conclusion of this hearing, the family court judge rules on whether the child is to be prosecuted in family court or in a court which would have trial jurisdiction of the offense(s) if committed by an adult. In Kent v. United States, 383 U.S. 541 (1966), the U.S. Supreme Court ordered that a full investigation must be conducted on children who the State intends to waive. The Court also identified eight factors to be taken into consideration when making the determination of whether or not to waive the child. (See “The Eight Determinative Factors of Kent v. U.S.”)

The solicitor has the burden of proving that the child should be waived. The solicitor will present witnesses and enter the pre-waiver evaluation report into evidence. Hearsay is admissible as this is not a trial on the merits.

Following the State’s case, the defense will present its case in an effort to show the court that the child should be treated as a child and remain in family court instead of being prosecuted as an adult. After hearing all the evidence and reviewing the pre-waiver evaluation report, the court will make its ruling based on the Kent factors and the factual findings.

If the court determines the child’s case should be transferred to general sessions court, the court’s order must sufficiently state the reasons for the transfer. The order should also contain language demonstrating that “the statutory requirement of full investigation has been met and that the question has received full and careful consideration by the family court.” State v. Avery, 509 S.E.2d 476, 481 (S.C. 1998). The decision to transfer jurisdiction lies within the discretion of the family court. Id.,State v. Pittman, 373 S.C. 527, 647 S.E.2d 144, (2007)

POST WAIVER HEARING ISSUES

If the family court does not waive the child and retains jurisdiction, the judge who presided over the waiver hearing should not preside over the adjudicatory hearing. Rule 34, SCRFC.

If the family court waives the child and relinquishes jurisdiction to another court, the family court has full authority to grant bail and hold a preliminary hearing (although in practice, this is rarely done by the family court judge).

Waiver or transfer of certain charges against a child does not result in all pending charges being transferred. If a charge is not transferred, it remains a family court charge and the child retains all of the protection of the juvenile system as to that charge. Johnson v. State, 437 S.E.2d 20 (S.C. 1993).

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No Waiver Allowed

Waiver Allowed / Court’s Discretion Mandatory Waiver

Automatic Jurisdiction in General Sessions Court (may be remanded to family court at solicitor’s discretion) CHARGE UNDER AGE 14 14 YEARS OLD 15 YEARS OLD 16 OR OLDER Class A Misdemeanor Class B Misdemeanor Class C Misdemeanor Class E Felony Class F Felony

Felony - maximum of 10 years or less Class A Felony

Class B Felony Class C Felony Class D Felony

Felony - maximum of 15+ years Carrying Weapon on School Property § 16-23-430

Unlawful Carrying of Handgun § 16-23-20

Distribution of Controlled Substance within ½ Mile Radius of School § 44-53-445

CSC Murder

Offense which, if committed by an adult, provides for 10+ years, if child previously adjudicated or convicted for 2 prior offenses which, if committed by an adult, provide for 10+

WAIVER

UNDER § 63-19-1210

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