ERROR GIVES ATTORNEY 2ND CHANCE TO SEEK JUVENILE STATUS FOR CLIENT

Published: Wednesday, Jan. 3 1990 12:00 a.m. MST

Because of an apparent Utah Supreme Court clerical error, the attorney for the accused kidnapper of the teenage son of industrialist Jon Huntsman was afforded an opportunity to reargue a motion that his client be treated as a juvenile offender.

Nicholas Hans Byrd, who was 17 when 16-year-old James Huntsman was kidnapped and held for a $1 million ransom in 1987, should have been prosecuted through the juvenile justice system, not 3rd District Court, according to attorney Walter F. Bugden Jr."This court needs to decide whether a juvenile court judge can willy-nilly grasp at factors that determine an individual's (juvenile or adult) status," Bugden told the justices.

Bugden had filed a motion in writing to have Byrd's case moved to the juvenile court under what is known as the "recall statute," but the motion somehow was placed on the Supreme Court's law and motion calendar.

"Since you're here, we'll hear it," said Chief Justice Gordon R. Hall.

According to Bugden, only three factors may be invoked when deciding whether the state's juvenile court regain's jurisdiction of a juvenile who has been charged as an adult: age, the seriousness of the offense, and prior record.

In Byrd's case, Juvenile Court Judge Sharon McCully ruled that he should stay in the adult system because she could not control how long a teenager is held in the juvenile corrections system, Bugden said.

In addition to the kidnapping charge, Byrd is accused of stabbing and wounding an FBI agent who was involved in James Huntsman's rescue. The case remains on appeal.

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