Assembly Bill No. 308–Assemblymen Tiffany, Cegavske, Arberry, Beers, Berman, Brower, Brown, Buckley, Carpenter, Chowning, Claborn, Collins, Freeman, Gibbons, Hettrick, Koivisto, Lee, Leslie, Manendo, Marvel, Mortenson, Neighbors, Parks, Parnell, Smith and Von Tobel

 

March 8, 2001

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Joint Sponsor: Senator Wiener

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Referred to Committee on Judiciary

 

SUMMARY—Revises provisions concerning waiver by juveniles of right to counsel. (BDR 5‑464)

 

FISCAL NOTE:            Effect on Local Government: Yes.

                                    Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to juveniles; revising the provisions concerning the waiver by juveniles of their right to counsel; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

   Section 1.  NRS 62.085 is hereby amended to read as follows:

   62.085  1.  If a child is alleged to be delinquent or in need of supervision, the child and his parents, guardian or custodian must be advised by the court or its representative that the child is entitled to be represented by an attorney at all stages of the proceedings . [, unless waived.] If indigent, the parent, guardian or custodian of the child may request the appointment of an attorney to represent the child pursuant to the provisions in NRS 171.188. If not indigent and:

   (a) An attorney is not retained for the child; or

   (b) It does not appear that an attorney will be retained,

an attorney must be appointed for the child . [, unless waived.]

   2.  Except as otherwise provided in NRS 424.085, if an attorney is appointed to represent a child:

   (a) The parents of that child shall pay the reasonable fees and expenses of the attorney unless they are indigent; or

   (b) If the parents of the child are indigent, the court may require the parent or guardian of the child to reimburse the county or state in accordance with his ability to pay.

   3.  The parent, guardian or custodian may be represented by an attorney at all stages of the proceedings. In no case may an attorney be appointed for him unless the court makes written findings that such an appointment is required in the interest of justice and specifying the reasons thereof.

   4.  Each attorney, other than a public defender, appointed under the provisions of this section is entitled to the same compensation and expenses from the county as provided in NRS 7.125 and 7.135 for attorneys appointed to represent persons charged with crimes.

1-1    Sec. 2. NRS 62.193 is hereby amended to read as follows:

1-2    62.193  1.  Proceedings concerning any child alleged to be delinquent,

1-3  in need of supervision or in need of commitment to an institution for the

1-4  mentally retarded are not criminal in nature and must be heard separately

1-5  from the trial of cases against adults, and without a jury. The hearing may

1-6  be conducted in an informal manner and may be held at a juvenile

1-7  detention facility or elsewhere at the discretion of the judge. Stenographic

1-8  notes or other transcript of the hearing are not required unless the court so

1-9  orders. All proceedings pursuant to this chapter must be open to the general

1-10  public unless the judge, or in case of a reference, the referee, upon his own

1-11  motion or upon the motion of another person, determines that all or part of

1-12  the proceedings must be closed to the general public because such closure

1-13  is in the best interests of the child or the general public. If the judge or

1-14  referee determines that all or part of the proceedings must be closed to the

1-15  general public, the general public must be excluded and only those persons

1-16  having a direct interest in the case may be admitted, as ordered by the

1-17  judge or referee. The judge or referee in his sole discretion may determine

1-18  that a victim or any member of a victim’s family is a person having a direct

1-19  interest in the case who may be admitted to the proceedings.

1-20    2.  The court shall provide written notice of any hearing after the initial

1-21  detention hearing to the parent, guardian or custodian of the child , together

1-22  with a copy of [a] the notice which the parent, guardian or custodian may

1-23  provide to his employer. The employer’s copy of the notice must set forth

1-24  the date and time of the hearing and the provisions of NRS 62.900. The

1-25  employer’s copy of the notice must not set forth the name of the child or

1-26  the offense alleged.

1-27    3.  The parties must be advised of their rights in their first appearance

1-28  at intake and before the court. They must be informed of the specific

1-29  allegations in the petition and given an opportunity to admit or deny those

1-30  allegations. The court shall not allow a child who is alleged to be

1-31  delinquent to admit any specific allegation in the petition unless the child

1-32  has consulted with an attorney who represents the interests of the child.

1-33    4.  If the allegations are denied, the court shall proceed to hear evidence

1-34  on the petition. If the petition alleges that the child is delinquent, the

1-35  court shall not hear evidence on the petition unless an attorney who is

1-36  representing the child is present. The court shall record its findings on

1-37  whether the acts ascribed to the child in the petition were committed by

1-38  him. If the court finds that the allegations in the petition have not been

2-1  established, it shall dismiss the petition and order the child discharged from

2-2  any detention or temporary care previously ordered in the proceedings,

2-3  unless otherwise ordered by the court.

2-4    5.  If the court finds on the basis of an admission made pursuant to

2-5  subsection 3 or 4 or a finding on proof beyond a reasonable doubt, based

2-6  upon competent, material and relevant evidence[,] at a hearing held

2-7  pursuant to subsection 4, that a child committed the acts by reason of

2-8  which he is alleged to be delinquent, it may, in the absence of objection

2-9  and except as otherwise provided in NRS 62.214, proceed immediately to

2-10  make a proper disposition of the case. A court shall not dispose of a case

2-11  in which a child is alleged to be delinquent or conduct a hearing

2-12  concerning the disposition of such a case unless an attorney who is

2-13  representing the child is present.

2-14    6.  The court may, at the request of the district attorney, expedite the

2-15  date for any adjudicatory hearing involving acts committed against a child

2-16  less than 16 years of age or involving acts witnessed by a child less than 16

2-17  years of age. In making a ruling, the court may consider the effect a delay

2-18  in the commencement of the hearing might have on the mental or

2-19  emotional health or well-being of the child.

2-20    7.  In adjudicatory hearings , all competent, material and relevant

2-21  evidence helpful in determining the questions presented, including oral and

2-22  written reports, may be received by the court and may be relied upon to the

2-23  extent of its probative value. The parties or their counsel must be afforded

2-24  an opportunity to examine and controvert written reports so received and to

2-25  cross-examine persons making reports when reasonably available.

2-26    8.  On its motion or that of a party, the court may continue the hearings

2-27  under this section for a reasonable period to receive reports and other

2-28  evidence bearing on the disposition. If the hearing involves acts committed

2-29  against a child less than 16 years of age or involving acts witnessed by a

2-30  child less than 16 years of age, the court may consider any adverse effect a

2-31  continuance or other postponement might have upon the mental or

2-32  emotional health or well-being of the child. The court may deny a

2-33  continuance or other postponement if the delay will adversely affect the

2-34  mental or emotional health or well-being of the child. The court shall make

2-35  an appropriate order for detention or temporary care of the child subject to

2-36  supervision of the court during the period of any continuance.

2-37    9.  If the court finds by preponderance of the evidence that the child is

2-38  in need of supervision or is in need of commitment to an institution for the

2-39  mentally retarded, the court may proceed immediately, or at a postponed

2-40  hearing, to make proper disposition of the case.

2-41    10.  Except as otherwise provided in subsection 11, the court shall

2-42  make its final disposition of a case no later than 60 days after the petition

2-43  was filed.

2-44    11.  The court may extend the time for final disposition of a case by

2-45  filing an order setting forth specific reasons for the extension:

2-46    (a) No later than 60 days after the petition was filed; or

2-47    (b) Later than 60 days after the petition was filed, if the court finds that

2-48  the extension would serve the interests of justice. In deciding whether an

2-49  extension would serve the interests of justice, the court shall consider:

3-1       (1) The gravity of the act alleged in the case;

3-2       (2) The reasons for any delay in the disposition of the case; and

3-3       (3) The potential consequences to the child, victim and public of not

3-4  extending the time for final disposition of the case.

3-5  An extension of time for final disposition of a case granted pursuant to this

3-6  subsection must not exceed 1 year from the date of filing the petition.

3-7    12.  The prosecuting attorney shall disclose to the victim of an act

3-8  committed by a child the disposition of the child’s case regarding that act if

3-9  the victim, or a parent or guardian of the victim, requests such a disclosure.

3-10  All personal information, including, but not limited to, a current or former

3-11  address, which pertains to a victim or a parent or guardian of a victim and

3-12  which is received by the prosecuting attorney pursuant to this subsection is

3-13  confidential.

 

3-14  H