Colorado § 19-2.5-609 - Preliminary hearing - dispositional hearing.

§ 19-2.5-609. Preliminary hearing - dispositional hearing.

(1) The district attorney or a juvenile who is accused in a petition of a delinquent act that constitutes a class 1, 2, or 3 felony may demand and receive a preliminary hearing to determine if there is probable cause to believe that the delinquent act alleged in the petition was committed by the juvenile. In addition, the district attorney or a juvenile who is accused in a petition of only those delinquent acts that constitute class 4, 5, or 6 felonies, which felonies require mandatory sentencing, constitute crimes of violence as defined in section 18-1.3-406, or constitute sexual offenses pursuant to part 4 of article 3 of title 18, may demand and receive a preliminary hearing to determine if there is probable cause to believe that the juvenile committed the delinquent act alleged in the petition. A preliminary hearing may be heard by a judge of the juvenile court or by a magistrate and conducted as follows:

(a) At the juvenile's advisement hearing and after the filing of the delinquency petition, the prosecution shall make available to the juvenile the discovery material required by the Colorado rules of juvenile procedure. The juvenile or the prosecution may file a written motion for a preliminary hearing, stating the basis therefor. Upon the filing of the motion, the court shall set the matter for a hearing. The juvenile or the prosecution shall file a written motion for a preliminary hearing not later than fourteen days after the advisement hearing.

(b) If the juvenile is being detained because of the delinquent act alleged in the petition, the preliminary hearing must be held within thirty-five days after the filing of the motion, unless good cause for continuing the hearing beyond that time is shown to the court. If the juvenile is not being detained, it must be held as promptly as the calendar of the court permits.

(c) At the preliminary hearing, the juvenile shall not be called upon to plead, although the juvenile may cross-examine the prosecution witnesses and may introduce evidence in the juvenile's own behalf. The prosecution has the burden of establishing probable cause. The court at the hearing may temper the rules of evidence in the exercise of sound judicial discretion.

(d) If the court determines that probable cause exists, it shall enter a finding to that effect and schedule an adjudicatory trial. If from the evidence it appears to the court that probable cause does not exist, it shall dismiss the delinquency petition and the court shall discharge the juvenile from any restriction or other previous temporary order stemming from the petition.

(2) (a) The district attorney and the juvenile who is accused in a petition of a delinquent act that constitutes a class 4, 5, or 6 felony, except those that require mandatory sentencing, that constitute crimes of violence as defined in section 18-1.3-406, or that constitute sexual offenses pursuant to part 4 of article 3 of title 18, do not have the right to demand or receive a preliminary hearing but shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution. A judge of the juvenile court or a magistrate may hear the dispositional hearing.

(b) Any juvenile accused of a class 4, 5, or 6 felony who is not otherwise entitled to a preliminary hearing pursuant to subsection (2)(a) of this section may demand and shall receive a preliminary hearing within a reasonable time pursuant to subsection (1) of this section if the juvenile is in custody; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the juvenile has been released from custody prior to the preliminary hearing.

(3) A request for review of a preliminary hearing finding entered by a magistrate must be filed pursuant to section 19-1-108 (5.5), and review must be conducted pursuant to said section.

(4) The prosecution may file a motion to refile the petition in delinquency, which motion must be accompanied by a verified affidavit stating the grounds therefor.

Source: L. 2021: Entire article added with relocations, (SB 21-059), ch. 136, p. 605, § 2, effective October 1.

Editor's note: This section is similar to former § 19-2-705 as it existed prior to 2021.

ANNOTATION

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Detained juvenile entitled to preliminary hearing. A juvenile who is detained is entitled to a preliminary hearing by constitutional mandate. The right to a preliminary hearing in all other instances is based upon interpretation of the Colorado Children's Code and the Colorado rules of juvenile procedure. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982).

When juvenile entitled to preliminary hearing. Juveniles charged in delinquency proceedings with crimes (felonies and class 1 misdemeanors) subject to Crim. P. 5 and 7 are entitled to a preliminary hearing. Juveniles held on lesser charges are not granted a right to a preliminary hearing by statute or by rule. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982).

Former § 19-3-103 (1)(d) gave juvenile courts limited discretion to conduct a preliminary hearing on the issue of probable cause to charge a juvenile suspect. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982).

Distinction is constitutional. Distinguishing between detained and nondetained juvenile suspects and between juveniles charged with committing serious offenses and juveniles charged with committing other offenses for the purpose of determining whether a preliminary hearing is required is a reasonable and rational distinction. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982).

Preliminary hearings. Section 19-3-101 (1)(d) gives the juvenile courts limited discretion to conduct a preliminary hearing on the issue of probable cause to charge a juvenile suspect. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982).

Distinguishing between detained and nondetained juvenile suspects and between juveniles charged with committing serious offenses and juveniles charged with committing other offenses for the purpose of determining whether a preliminary hearing is required is a reasonable and rational distinction. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982).

Under subsection (3), prosecutors and juveniles are entitled to ask a juvenile court to review a juvenile court magistrate's preliminary hearing finding in a delinquency proceeding. People in Interest of A.S.M., 2022 CO 47, 517 P.3d 675.

Granting a motion to dismiss and denying a motion to refile a juvenile delinquency is within the discretion of the court. People in Interest of D.J.P., 785 P.2d 129 (Colo. 1990).

Failure of prosecution to subpoena witness or to show necessity for the testimony of such witness is sufficient to deny prosecution motion to continue and to dismiss the action. People in Interest of D.J.P., 785 P.2d 129 (Colo. 1990).