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When Can You Be Tried As An Adult For Crimes In Michigan?

by | Oct 11, 2021 | Criminal Law, Juvenile Justice |

 

On October 1st, 2021, the “Raise The Age” legislation signed into law by Governor Gretchen Whitmer in 2019 went into effect.  Prior to the effective date, anyone that was age 17 or older could be arrested for any criminal offense, lodged in the county jail and brought before the district court to be tried automatically as an adult.  Now, the age has been raised to 18 or older before adult criminal court is compulsory.  “[I]f if a child less than 18 years of age is arrested, with or without a warrant, the child must be taken immediately before the family division of circuit court of the county where the offense is alleged to have been committed, and the officer making the arrest shall immediately make and file, or cause to be made and filed, a [juvenile delinquency] petition against the child…”.  MCL 764.27.

However, even if a juvenile under 18 years old is arrested for a crime, there may be circumstances where that juvenile can still be tried as adult or punished as an adult despite being underage.

 

AUTOMATIC WAIVER PROCEEDINGS

“If the prosecuting attorney has reason to believe that a juvenile 14 years of age or older but less than 17 years of age has committed a specified juvenile violation, the prosecuting attorney may authorize the filing of a complaint and warrant on the charge” in a court of general criminal jurisdiction.  MCL 764.1f(1).  “Specified juvenile violations” include any of the following:

  • First-degree arson (MCL 750.72).
  • Assault with intent to commit murder (MCL 750.83).
  • Assault with intent to maim (MCL 750.86).
  • Assault with intent to rob while armed (MCL 750.89).
  • Attempted murder (MCL 750.91).
  • First-degree murder (MCL 750.316).
  • Second-degree murder (MCL 750.317).
  • Kidnapping (MCL 750.349).
  • First-degree criminal sexual conduct (MCL 750.520b).
  • Armed robbery (MCL 750.529).
  • Carjacking (MCL 750.529a).
  • Robbery of a bank, safe or vault (MCL 750.531).
  • Assault with intent to do great bodily harm or assault by strangulation or suffocation (MCL 750.84) IF ARMED WITH A DANGEROUS WEAPON.
  • First-degree home invasion (MCL 750.110a(2)) IF ARMED WITH A DANGEROUS WEAPON.
  • Escape or attempted escape from a medium- or high-security facility operated by DHHS or county juvenile agency, or from a private agency contracted by DHHS or a county juvenile agency under contract to operate said facility (MCL 750.186a).
  • Possession of 1000 grams or more of a Schedule 1 or 2 drug or cocaine (MCL 333.7402(2)(a)(i)).
  • Manufacture, creation, delivery, or possession with intent to manufacture, create or deliver 1000 grams or more of a Schedule 1 or 2 drug or cocaine (MCL 333.7401(2)(a)(i)).
  • An attempt to commit any of the above crimes (MCL 750.92).
  • A conspiracy to commit any of the above crimes (MCL 750.157a).
  • Solicitation to commit any of the above crimes (MCL 750.157b).
  • Any lesser-included offense of a specified juvenile violation IF the juvenile is charged with a specified juvenile violation.
  • Any other offense arising out of the same transaction as a specified juvenile violation IF the juvenile is charged with a specified juvenile violation.

A “dangerous weapon” for purposes of a specified juvenile violation means one or more of the following:

  • “A loaded or unloaded firearm, whether operable or inoperable.” MCL 764.1f(2)(b)(i).
  • “A knife, stabbing instrument, brass knuckles, blackjack, club, or other object specifically designed or customarily carried or possessed for use as a weapon.” MCL 764.1f(2)(b)(ii).
  • “An object that is likely to cause death or bodily injury when used as a weapon and that is used as a weapon or carried or possessed for use as a weapon.” MCL 764.1f(2)(b)(iii).
  • “An object or device that is used or fashioned in a manner to lead a person to believe the object or device is an object or device described above”. MCL 764.1d(2)(b)(iv).

If a juvenile is charged with a specified juvenile offense that originates as a petition in the family court, the prosecutor may request a “special adjournment” of the juvenile delinquency preliminary hearing to decide whether or not to initiate automatic waiver proceedings to adult court.  The juvenile court can “adjourn the preliminary hearing for up to 5 days to give the prosecuting attorney the opportunity to determine whether to authorize the filing of a criminal complaint and warrant charging the juvenile with an offense as though an adult pursuant to [automatic waiver proceedings], instead of unconditionally approving the filing of a petition with the [Family Division].”  MCR 3.935(A)(3)(a).

Under automatic waiver proceedings, the juvenile can be tried, convicted and punished as an adult with a permanent felony charge on his or her adult criminal record.

 

TRADITIONAL WAIVER PROCEEDINGS

If it is discovered during a criminal case that the defendant was under 18 years of age (after October 1st, 2021) when the offense was committed but 18 years of age or older when actually charged with the offense, the adult criminal court must transfer the case to the Family Division.  MCL 712A.3.  Once the case is transferred back, the Family Division has jurisdiction over the case for the limited purpose of holding a traditional waiver hearing under MCL 712A.4.

A motion by the prosecuting attorney requesting that the family division waive its jurisdiction to a court of general criminal jurisdiction regarding the juvenile “must be filed within 14 days after the petition has been authorized to be filed.”  MCR 3.950(C)(1).  “Absent a timely motion and good cause shown, the juvenile shall no longer be subject to waiver of jurisdiction on the charges.”  Id.  The traditional waiver hearing consists of two phases.

  • FIRST PHASE: “The first-phase hearing is to determine whether there is probable cause to believe that an offense has been committed that if committed by an adult would be a felony, and that there is probable cause to believe that the juvenile who is 14 years of age or older committed the offense.” MCR 3.950(D)(1).  This probable cause hearing must be commenced within 28 days after the court authorized the petition, unless adjourned for good cause.  MCR 3.950(D)(1)(a).  The prosecutor has the burden of proof for showing probable cause, but the juvenile can elect to waive this hearing.  However, if this hearing is waived, the juvenile does not have a right to a preliminary examination in the district court for adult proceedings.  MCR 3.950(D)(1)(c)(ii).
  • SECOND PHASE: If probable cause is found, “the second-phase hearing shall be held to determine whether the interests of the juvenile and the public would best be served by granting the motion.” MCR 3.950(D)(2).  However, the family division can waive jurisdiction without a second-phase hearing if the juvenile has been previously subject to the jurisdiction of the adult criminal court.    The second-phase hearing must be commenced within 28 days after the conclusion of the first phase, or within 35 days after the authorization of the petition if there was no first-phase hearing, unless adjourned for good cause.  MCR 3.950(D)(2)(a).  “The court, in determining whether to waive the juvenile to the court having general criminal jurisdiction, shall consider and make findings on the following criteria, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency than to the other criteria:”
    • “The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the effect on any victim.” MCR 3.950(D)(2)(d)(i). 
    • “The culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.” MCR 3.950(D)(2)(d)(ii). 
    • “The juvenile’s prior record of delinquency including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.” MCR 3.950(D)(2)(d)(iii). 
    • “The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming.” MCR 3.950(D)(2)(d)(iv). 
    • “The adequacy of the punishment or programming available in the juvenile justice system.” MCR 3.950(D)(2)(d)(v). 
    • “The dispositional options available for the juvenile.” MCR 3.950(D)(2)(d)(vi). 

“In determining whether to waive the juvenile to the court having general criminal jurisdiction, the court may also consider any stipulation by the defense to a finding that the best interests of the juvenile and the public support a waiver.”  MCR 3.950(D)(2)(e).  If the motion is granted, the juvenile is transferred to the criminal court of general jurisdiction under regular procedures like any other adult.  MCR 3.950(E).  If the motion is denied, the juvenile remains in the Family Division for further juvenile delinquency proceedings.  MCR 3.950(F).

 

DESIGNATED PROCEEDINGS

If a juvenile is accused of a crime not eligible for automatic waiver proceedings, the prosecutor or the court may request instead that the juvenile is tried in a designated proceeding.  A designated proceeding is “a proceeding in which the prosecuting attorney has designated, or has requested the [Family Division] to designate, the case for trial in the [Family Division] in the same manner as an adult.”  MCR 3.903(A)(6).  Designated proceedings “are criminal proceedings and must afford all procedural protections and guarantees to which the juvenile would be entitled if being tried for the offense in a court of general criminal jurisdiction.” MCL 712A.2d(7).  A guilty plea, no contest plea, or a guilty verdict by judge or jury will result in the entry of an adult conviction, which has the same effect and liabilities as if it had been obtained in adult criminal court.  This means the juvenile could be sentenced to state prison.

Designated proceedings are initiated in one of two ways:

  • PROSECUTOR-DESIGNATED PROCEEDINGS arise when the prosecutor initiates a designated proceeding for an alleged “specified juvenile violation”. MCL 712A.2d(1).  This does not require a designation hearing and these proceedings will go forward in the discretion of the prosecutor.
  • COURT-DESIGNATED PROCEEDINGS arise when the prosecutor requests a designated proceeding for an offense other than a “specified juvenile violation.” “The court may designate the case following a hearing if it determines that the best interests of the juvenile and the public
    would be served by the juvenile being tried in the same manner as an adult.”  MCL 712A.2d(2).

The designation hearing must commence within 14 days of the arraignment, unless adjourned for good cause.  MCR 3.952(A).  “The prosecuting attorney has the burden of proving by a preponderance of the evidence that the best interests of the juvenile and the public would be served by designation.”  MCR 3.952(C)(2).  “In determining whether to designate the case for trial in the same manner as an adult, the court must consider all the following factors, giving greater weight to the seriousness of the alleged offense and the juvenile’s prior delinquency record than to the other factors:”

  • “The seriousness of the alleged offense in terms of community protection, including, but not limited to, the existence of any aggravating factors recognized by the sentencing guidelines, the use of a firearm or other dangerous weapon, and the effect on any victim.” MCR 3.952(C)(3)(a).
  • “The culpability of the juvenile in committing the alleged offense, including, but not limited to, the level of the juvenile’s participation in planning and carrying out the offense and the existence of any aggravating or mitigating factors recognized by the sentencing guidelines.” MCR 3.952(C)(3)(b).
  • “The juvenile’s prior record of delinquency, including, but not limited to, any record of detention, any police record, any school record, or any other evidence indicating prior delinquent behavior.” MCR 3.952(C)(3)(c).
  • “The juvenile’s programming history, including, but not limited to, the juvenile’s past willingness to participate meaningfully in available programming.” MCR 3.952(C)(3)(d).
  • “The adequacy of the punishment or programming available in the juvenile justice system.”  MCR 3.952(C)(3)(e).
  • “The dispositional options available for the juvenile.” MCR 3.952(C)(3)(f).

If the court determines that it is in the best interests of the juvenile and the public that the juvenile be tried in the same manner as an adult in the family division of the circuit court, the court must schedule a preliminary examination within 14 days if the juvenile is charged with a felony or schedule a pretrial/trial if the juvenile is charged with a misdemeanor.  MCR 3.952(D)(1).

 

THE BOTTOM LINE

Whether you are charged as an adult or a juvenile, you still possess all of the due process rights afforded to you under the U.S. and Michigan Constitutions.  More importantly, you have the right to have a skilled criminal defense lawyer in your corner to assist you every step of the way.  Both adults and juveniles have the right to a trial by judge or jury, to be presumed innocent until proven guilty beyond a reasonable doubt, and to have the assistance of effective legal counsel.  Our law firm has a long track record of obtaining favorable results for both juveniles and adults in criminal and delinquency proceedings respectively.  There is too much at stake to not trust your defense to the very best in the industry.

If you or a loved one is charged with a crime or subject to a juvenile delinquency petition and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.

 

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