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JDR court correctly released minor defendant

The JDR court correctly denied the commonwealth’s motion to transfer the minor defendant’s case to circuit court.

Further, the court retained jurisdiction while the commonwealth appealed the release decision.


The commonwealth has appealed the JDR court’s decision to release a 14-year-old defendant from secure detention. The JDR court previously denied the commonwealth’s motion to transfer the case to circuit court. While the commonwealth’s appeal to circuit court was pending, the JDR court set a trial date and released defendant from secure detention.

“The parties appeared before this Court on December 16, 2022, on the Commonwealth’s appeal challenging the JDR court’s jurisdiction.

“The Court now considers two issues: (l) whether the JDR court retained jurisdiction pending appeal of its decision against transferring the case to circuit court; and (2) whether release of Defendant was required pursuant to §16.1-269.6(8). …

“[T]his Court finds that (1) circuit court jurisdiction in the pending appeal derives from – and is therefore concurrent with – the JDR court’s jurisdiction; (2) release of Defendant from secure detention was not mandatory; but (3) the JDR court acted within its discretion when it released Defendant.”

Transfer decision

“When ‘a juvenile 14 years of age or older at the time of an alleged offense is charged with an offense which would be a felony if committed by an adult,’ the JDR court ‘shall, on motion of the attorney for the Commonwealth and prior to a hearing on the merits, hold a transfer hearing and may retain jurisdiction or transfer such juvenile for proper criminal proceedings’ …

“This decision is subject to several listed conditions, including a finding of probable cause and a multi-factor finding of whether the juvenile is a ‘proper person’ to remain under JDR jurisdiction. …

“Following the notice of appeal, ‘[t]he circuit court, when practicable, shall, within 45 days after receipt of the case from the juvenile court …

“‘(i) … examine all such papers, reports and orders and conduct a hearing to take further evidence on the issue of transfer, to determine if there has been substantial compliance with subsection A of § 16.1-269.1, but without redetermining whether the juvenile court had sufficient evidence to find probable cause; and

“‘(ii) enter an order either remanding the case to the juvenile court or advising the attorney for the Commonwealth that he may seek an indictment.’ …

“This Court finds that the JDR court retained concurrent jurisdiction over the case during its appeal to circuit court, unless and until the circuit court authorizes the Commonwealth to seek an indictment. The statute contemplates that the interlocutory appeal of a transfer decision takes place contemporaneously with other actions.

“For instance, the Commonwealth is not delayed in seeking an indictment pending the juvenile’s appeal of an affirmative transfer decision. … Similarly, when the JDR court decides to not transfer the case, it is not divested of jurisdiction unless and until there is an overriding decision to make such a transfer. …

“The circuit courts review at this stage is limited to determining ‘substantial compliance with subsection A of §16.1-269.1.’ …Only when the circuit court issues an order authorizing the Commonwealth to seek an indictment is the JDR court divested of its jurisdiction. …

“Because the JDR court maintained jurisdiction, it could continue to act on this case subject to any applicable appellate review, including to determine whether to release Defendant from secure detention.”


“[T]his Court finds that there was no requirement to release Defendant, only a statutory direction to the judge to release Defendant if held continuously in secure detention pending appeal.

“The 45-day confinement limitation exists to accelerate the circuit court’s review so that the JDR court may expeditiously proceed to adjudication, thereby protecting the juvenile from excess pre­ adjudication confinement.

“This is reflected by the wording of the statute in context with how the Virginia Supreme Court approaches use of the word ‘shall’ in reference to public officials. As provided by statute, ‘[a] juvenile held continuously in secure detention shall be released from confinement if there is no hearing on the merits of his case within 45 days of the filing of the appeal.’ … (emphasis added).

“Since release of Defendant is an action directed to be taken by the judge – a public official – and the same section contains no language prohibiting the judge from taking any action, this provision is ‘directory and procedural, rather than mandatory and jurisdictional.’ …

“As such, this is a direction to protect the juvenile from excess confinement, unless other factors – ‘good cause shown’ – weigh enough against his release. …

The appeal of the JDR court’s release decision is taken de novo, and the circuit court record must reflect clear and convincing evidence that supports continuing secure detention. … The Commonwealth, however, does not object to Defendant’s release pending its appeal of the JDR court’s transfer decision. As such, this Court will not weigh the factors relevant to the release decision, leaving the JDR court’s action to stand on its own.”

The JDR court’s release order is affirmed.

Commonwealth v. Reid, Record No. CJ22000088-01, -02, Dec. 21, 2022. City of Newport News Circuit Court (Mills) Opinion and Order. VLW 022-8-082, 5 pp.

VLW 022-8-082

Virginia Lawyers Weekly