Article II. Prehearing Procedures

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Rule 23: Pretrial Diversion in Delinquent and Unruly Cases.

(a) General Provisions. If a designated court officer determines in an unruly or delinquent case that the child does not wish to contest the allegations of the petition, and that a court hearing is not necessary, the parties, following advisement of rights to the child and the child's parent, may agree to pretrial diversion that would suspend the proceedings and continue the child under supervision under terms and conditions negotiated with the designated court officer and approved by the court.

(b) Time Limits. A pretrial diversion agreement shall remain in force for six (6) months unless the child is discharged sooner by the court. Upon application of any party to the proceedings, made before expiration of the six-month period and after notice and a hearing, pretrial diversion may be extended by the court for an additional six months.

(c) Reinstatement of Petition. If prior to discharge by the court or expiration of the pretrial diversion period, a new delinquent or unruly petition is filed against the child, or the child otherwise fails to fulfill express terms and conditions of the pretrial diversion agreement, the petition under which the child was continued under supervision may be reinstated and the case may proceed to adjudication just as if the agreement had never been entered. If failure to comply with the pretrial diversion agreement is alleged, the child shall be given written notice of the alleged violation and an opportunity to be heard on that issue, prior to the reinstatement of proceedings under the original charge.

(d) Dismissal. The petition of a child who is discharged or who completes a period of continuance under supervision without reinstatement of the original delinquent or unruly petition shall be dismissed and the child shall not again be proceeded against in any court for the same offense based upon the same conduct.

Advisory Commission Comments.

Pretrial diversion is intended by the committee to replace the former practice of holding cases open for further action. The procedures set forth in this rule essentially allow for a process similar to informal adjustment, with no official finding as to guilt, except that the court in the person of the judge (or magistrate) is involved in that there must be court approval of any agreement.

Courts should develop written local procedures and criteria for initiating pretrial diversion. Such criteria might include a listing of the types of cases, or charges, which might be handled by pretrial diversion. Pretrial diversion might be initiated by the parties or by the court itself, through motion or through whatever other procedure the court determines is appropriate. Local rules and procedures should also address the issue of how the district attorney general will be notified of cases in which pretrial diversion is being considered, in light of the legitimate public interest in the disposition of more serious cases.

Under this rule, if the child completes the pretrial diversion agreement, the case is dismissed. If the court, or the designated court officer, determines that the case is serious enough that such dismissal should not occur, the case should proceed to court as in any other case warranting official court action, and, if the child readily admits guilt and wishes to negotiate a settlement based upon a plea of guilty, such negotiated settlement should be handled in accordance with Rule 21.

Advisory Commission Comments [2012].

The 2012 amendment modifies the original Advisory Commission Comments by substituting the term “magistrate” for the term “referee,” consistent with statutory changes enacted by the General Assembly.

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