State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter29 > 29-1816

29-1816. Arraignment ofaccused; when considered waived; child less than eighteen years of age; movecourt to waive jurisdiction to juvenile court; findings for decision; transferto juvenile court; effect.(1) The accused shall be arraigned by readingto him or her the indictment or information, unless the reading is waivedby the accused when the nature of the charge is made known to him or her.The accused shall then be asked whether he or she is guilty or not guiltyof the offense charged. If the accused appears in person and by counsel andgoes to trial before a jury regularly impaneled and sworn, he or she shallbe deemed to have waived arraignment and a plea of not guilty shall be deemedto have been made.(2)(a) Atthe time of the arraignment the court shall advise the accused, ifhe or she was less than eighteen years of age at the time of the commitmentof the alleged crime, that he or she may move the county or district courtat any time not later than thirty days after arraignment, unless otherwisepermitted by the court for good cause shown, to waive jurisdiction in suchcase to the juvenile court for further proceedings under the Nebraska JuvenileCode. The court shall schedule a hearing on such motion within fifteen days.The customary rules of evidence shall not be followed at such hearing. Thecounty attorney or city attorney shallpresent the evidence and reasons why such case should be retained, the accused shall present the evidence and reasonswhy the case should be transferred, and both sides shall consider the criteriaset forth in section 43-276. After considering all the evidence and reasonspresented by both parties, pursuant to section 43-276, the case shall be transferredunless a sound basis exists for retaining the case.(b) Indeciding such motion the court shall consider, among other matters, the mattersset forth in section 43-276 for consideration by the county attorney or city attorney when determiningthe type of case to file.(c) Thecourt shall set forth findings for the reason for its decision, which shallnot be a final order for the purpose of enabling an appeal. If the court determinesthat the accused should be transferredto the juvenile court, the complete file in the county or district court shall be transferredto the juvenile court and the complaint, indictment, or information may be usedin place of a petition therein. The court making a transfer shall order the accused to be taken forthwith to the juvenilecourt and designate where he or she shallbe kept pending determination by the juvenile court. The juvenile court shallthen proceed as provided in the Nebraska Juvenile Code. SourceG.S.1873, c. 58, § 448, p. 822; R.S.1913, § 9092; C.S.1922, § 10117; Laws 1925, c. 105, § 1, p. 294; C.S.1929, § 29-1815; R.S.1943, § 29-1816; Laws 1947, c. 103, § 1(1), p. 291; Laws 1974, LB 620, § 6; Laws 1975, LB 288, § 2; Laws 1987, LB 34, § 1; Laws 2008, LB1014, § 16; Laws 2010, LB800, § 5.Effective Date: July 15, 2010 Cross ReferencesNebraska Juvenile Code, see section 43-2,129. Annotations1. Arraignment2. Jurisdiction to juvenile court3. Miscellaneous1. ArraignmentArraignment complied with statute. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).Where accused goes to trial without being arraigned and failed to demand formal arraignment, he waives his rights. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944); Hill v. State, 116 Neb. 73, 215 N.W. 789 (1927).Issues are not joined until arraignment and plea to information; no jeopardy in absence of plea. Gragg v. State, 112 Neb. 732, 201 N.W. 338 (1924).Under prior statute, reading of indictment could not be waived in felony case, and failure to arraign was reversible error. Popel v. State, 105 Neb. 348, 180 N.W. 570 (1920).Formal arraignment is not necessary in misdemeanor. Kruger v. State, 1 Neb. 365 (1871).2. Jurisdiction to juvenile courtThe general rule is that on request by a juvenile, the district court must transfer a juvenile case involving a felony from district court to juvenile court, unless a sound basis for retaining jurisdiction exists. In deciding whether to grant a requested waiver of the district court's jurisdiction and to transfer the case to juvenile court, the district court having jurisdiction over a pending criminal prosecution is required to consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Reynolds, 246 Neb. 802, 523 N.W.2d 377 (1994).In deciding whether to grant a requested waiver of jurisdiction and transfer proceedings to juvenile court pursuant to this section, the court having jurisdiction over a pending criminal prosecution must carefully consider the juvenile's request in light of the criteria set forth in section 43-276. State v. Nevels, 235 Neb. 39, 453 N.W.2d 579 (1990).This section and section 43-276 provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).This section and section 43-276 involve a balancing test, namely, public protection and societal security weighed against practical and not problematic rehabilitation, in determining whether there should be a waiver of jurisdiction in criminal proceedings with a transfer to the juvenile court. Where the record supported the trial court's findings that the crime was violent, that the defendant may require treatment beyond the age of majority, that defendant's rehabilitative needs were beyond the scope of the juvenile court, and that more protection of the public was required than would be available in juvenile court, the district court did not abuse its discretion in retaining jurisdiction. State v. Ryan, 226 Neb. 59, 409 N.W.2d 579 (1987).District court properly refused transfer of minor to juvenile court after a hearing and issuing written findings enumerating the basis for denying transfer. State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).A judgment will not be reversed for failure of trial court to set forth findings for its reason to overrule a motion to transfer case to juvenile court where defendant failed to call trial court's attention to the requirement of the statute. State v. Highly, 195 Neb. 498, 238 N.W.2d 909 (1976).3. MiscellaneousWhen a defendant appeared, was represented by counsel, and went to trial, the defendant waived any argument that rearraignment was necessary. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004).In order to retain jurisdiction pursuant to this section, the district court does not need to resolve every factor in section 43-276 against the juvenile. This section represents the policy decision, made by the Legislature, that decisions made at transfer hearings are to be informed by all of the surrounding circumstances, which may or may not include evidence that is inadmissible at a subsequent criminal trial. State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000).A request to a court to waive jurisdiction to the juvenile court raises a jurisdictional challenge, and a defendant may appeal an unfavorable ruling even after entering a plea of guilty or tendering a plea of no contest. State v. Phinney, 235 Neb. 486, 455 N.W.2d 795 (1990).Section is not applicable to misdemeanors. Wozniak v. State, 103 Neb. 749, 174 N.W. 298 (1919); Burroughs v. State, 94 Neb. 519, 143 N.W. 450 (1913).Right to have complaint read to him in filiation proceeding is waived by defendant by proceeding to trial. McNeal v. Hunter, 72 Neb. 579, 101 N.W. 236 (1904).