Feed for /1999/statutes/statutes/938 PDF
938.24 938.24 Receipt of jurisdictional information; intake inquiry.
938.24(1)(1) Except when a citation has been issued under s. 938.17 (2), information indicating that a juvenile should be referred to the court as delinquent, in need of protection or services or in violation of a civil law or a county, town or municipal ordinance shall be referred to the intake worker, who shall conduct an intake inquiry on behalf of the court to determine whether the available facts establish prima facie jurisdiction and to determine the best interests of the juvenile and of the public with regard to any action to be taken.
938.24(1m) (1m) As part of the intake inquiry, the intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian that they may request counseling from a person designated by the court to provide dispositional services under s. 938.069.
938.24(2) (2)
938.24(2)(a)(a) As part of the intake inquiry the intake worker may conduct multidisciplinary screens and intake conferences with notice to the juvenile, parent, guardian and legal custodian. If sub. (2m) applies, the intake worker shall conduct a multidisciplinary screen under s. 938.547 if the juvenile has not refused to participate under par. (b).
938.24(2)(b) (b) No juvenile or other person may be compelled to appear at any conference, participate in a multidisciplinary screen, produce any papers or visit any place by an intake worker.
938.24(2m) (2m)
938.24(2m)(a)(a) In counties that have a pilot program under s. 938.547, a multidisciplinary screen shall be conducted for:
938.24(2m)(a)1. 1. Any juvenile alleged to have committed a violation specified under ch. 961.
938.24(2m)(a)2. 2. Any juvenile alleged to be delinquent or in need of protection and services who has at least 2 prior adjudications for a violation of s. 125.07 (4) (a) or (b), 125.085 (3) (b) or 125.09 (2) or a local ordinance that strictly conforms to any of those sections.
938.24(2m)(a)3. 3. Any juvenile alleged to have committed any offense which appears to the intake worker to be directly motivated by the juvenile's need to purchase or otherwise obtain alcohol beverages, controlled substances or controlled substance analogs.
938.24(2m)(a)4. 4. Any juvenile 12 years of age or older who requests and consents to a multidisciplinary screen.
938.24(2m)(a)5. 5. Any juvenile who consents to a multidisciplinary screen requested by his or her parents.
938.24(2m)(b) (b) The multidisciplinary screen may be conducted by an intake worker for any reason other than those specified in the criteria under par. (a).
938.24(3) (3) If the intake worker determines as a result of the intake inquiry that the juvenile should be referred to the court, the intake worker shall request that the district attorney, corporation counsel or other official specified in s. 938.09 file a petition.
938.24(4) (4) If the intake worker determines as a result of the intake inquiry that the case should be subject to a deferred prosecution agreement, or should be closed, the intake worker shall so proceed. If a petition has been filed, a deferred prosecution agreement may not be entered into or a case may not be closed unless the petition is withdrawn by the district attorney, corporation counsel or other official specified in s. 938.09, or is dismissed by the judge.
938.24(5) (5) The intake worker shall request that a petition be filed, enter into a deferred prosecution agreement or close the case within 40 days or sooner of receipt of referral information. Before entering into a deferred prosecution agreement, the intake worker shall comply with s. 938.245 (1m), if applicable. If the case is closed or a deferred prosecution agreement is entered into, the district attorney, corporation counsel or other official under s. 938.09 shall receive written notice of such action. If the case is closed, the known victims of the juvenile's alleged act shall receive notice as provided under sub. (5m), if applicable. A notice of deferred prosecution of an alleged delinquency case shall include a summary of the facts surrounding the allegation and a list of prior intake referrals and dispositions. If a law enforcement officer has made a recommendation concerning the juvenile, the intake worker shall forward this recommendation to the district attorney under s. 938.09. Notwithstanding the requirements of this section, the district attorney may initiate a delinquency petition under s. 938.25 within 20 days after notice that the case has been closed or that a deferred prosecution agreement has been entered into. The judge shall grant appropriate relief as provided in s. 938.315 (3) with respect to any such petition which is not referred or filed within the time limits specified within this subsection. Failure to object if a petition is not referred or filed within a time limit specified in this subsection waives that time limit.
938.24(5m) (5m) If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12) and the intake worker decides to close the case, the intake worker shall make a reasonable attempt to inform all of the known victims of the juvenile's act that the case is being closed at that time.
938.24(6) (6) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under s. 938.06 (1) or (2).
938.24(7) (7) If a citation is issued to a juvenile, the citation shall not be the subject of an intake inquiry or a review by an intake worker for the purpose of recommending deferred prosecution.
938.24 History History: 1995 a. 77, 275, 352, 448; 1997 a. 181; 1999 a. 9.
938.24 Annotation Under the facts of the case, sub. (5) did not mandate dismissal although referral was not made within 40 days. In re J.L.W., 143 Wis. 2d 126, 420 N.W.2d 398 (Ct. App. 1988).
938.24 Annotation Under sub. (1), "information indicating that a child should be referred to the court as delinquent" is that quantum of information that would allow a reasonable intake worker to evaluate the appropriate disposition of the matter. In Interest of J.W.T., 159 Wis. 2d 754, 465 N.W.2d 520 (Ct. App. 1990).
938.24 Annotation Sub. (5), when read in conjunction with sub. (3), requires that an intake worker request the district attorney to file a delinquency petition and does not require the intake worker to make a recommendation that a petition be filed. Interest of Antonio M.C. 182 Wis. 2d 301, 513 N.W.2d 662 (Ct. App. 1994).
938.24 Annotation Procedural Changes. Plum. Wis. Law. Apr. 1996.
938.24 Note NOTE: The above annotated cases cite to s. 48.24, the predecessor statute to s. 938.24.
938.243 938.243 Basic rights: duty of intake worker.
938.243(1) (1) Before conferring with the parent or juvenile during the intake inquiry, the intake worker shall personally inform a juvenile alleged to have committed a delinquent act, and parents and juveniles 10 years of age or over who are the focus of an inquiry regarding the need for protection or services under s. 938.13 (4), (6), (6m) or (7), of all of the following:
938.243(1)(ag) (ag) That the referral may result in a petition to the court.
938.243(1)(am) (am) What allegations could be in the petition to the court.
938.243(1)(b) (b) The nature and possible consequences of the proceedings including the provisions of ss. 938.17 and 938.18 if applicable.
938.243(1)(c) (c) The right to remain silent and the fact that in a delinquency proceeding the silence of the juvenile shall not be adversely considered by the court although the silence of any party may be relevant in any nondelinquency proceeding.
938.243(1)(d) (d) The right to confront and cross-examine those appearing against them.
938.243(1)(e) (e) The right of the juvenile to counsel under s. 938.23.
938.243(1)(f) (f) The right to present and subpoena witnesses.
938.243(1)(h) (h) The right to have the allegations of the petition proved by clear and convincing evidence unless the juvenile comes within the court's jurisdiction under s. 938.12 or 938.13 (12), in which case the standard of proof shall be beyond a reasonable doubt.
938.243(1m) (1m) If the juvenile who is the subject of the intake inquiry is alleged to have committed an act which resulted in personal injury or damage to or loss of the property of another, the intake worker shall inform the juvenile's parents in writing of the possibility of disclosure of the identity of the juvenile and the parents, of the juvenile's police records and of the outcome of proceedings against the juvenile for use in civil actions for damages against the juvenile or the parents and of the parents' potential liability for acts of their juveniles.
938.243(3) (3) If the juvenile has not had a hearing under s. 938.21 and was not present at an intake conference under s. 938.24, the intake worker shall inform the juvenile, parent, guardian and legal custodian as appropriate of their basic rights under this section. This notice shall be given verbally, either in person or by telephone, and in writing. This notice shall be given so as to allow the juvenile, parent, guardian or legal custodian sufficient time to prepare for the plea hearing. This subsection does not apply to cases of deferred prosecution under s. 938.245.
938.243(4) (4) This section does not apply if the juvenile was present at a hearing under s. 938.21.
938.243 History History: 1995 a. 77; 1997 a. 35.
938.245 938.245 Deferred prosecution.
938.245(1) (1) The intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if the intake worker has determined that neither the interests of the juvenile nor of the public require filing of a petition for circumstances relating to s. 938.12, 938.125, 938.13 or 938.14. Deferred prosecution shall be available only if the facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the juvenile, parent, guardian and legal custodian.
938.245(1m) (1m) If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), an intake worker shall, as soon as practicable but in any event before entering into a deferred prosecution agreement under sub. (1), offer all of the victims of the juvenile's alleged act who have requested the opportunity an opportunity to confer with the intake worker concerning the proposed deferred prosecution agreement. The duty to confer under this subsection does not limit the obligation of the intake worker to perform his or her responsibilities under this section.
938.245(2) (2)
938.245(2)(a)(a) A deferred prosecution agreement may provide for any one or more of the following:
938.245(2)(a)1. 1. That the juvenile and the juvenile's parent, guardian or legal custodian participate in individual, family or group counseling and that the parent, guardian or legal custodian participate in parenting skills training.
938.245(2)(a)2. 2. That the juvenile and a parent, guardian and legal custodian abide by such obligations, including supervision, curfews and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection or care.
938.245(2)(a)3. 3. That the juvenile submit to an alcohol and other drug abuse assessment that conforms to the criteria specified under s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances or controlled substance analogs and any medical, personal, family or social effects caused by its use, if the multidisciplinary screen conducted under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances or controlled substance analogs and its medical, personal, family or social effects.
938.245(2)(a)4. 4. That the juvenile participate in an alcohol and other drug abuse outpatient treatment program, a court-approved pupil assistance program provided by the juvenile's school board or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment conducted under subd. 3. recommends outpatient treatment, intervention or education. The juvenile's participation in a court-approved pupil assistance program under this subdivision is subject to the approval of the juvenile's school board.
938.245(2)(a)5.a.a. That the juvenile participate in a restitution project if the act for which the deferred prosecution agreement is being entered into has resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to subd. 5. c., the deferred prosecution agreement may require the juvenile to repair the damage to property or to make reasonable restitution for the damage or injury, either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. Any such deferred prosecution agreement shall include a determination that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the deferred prosecution agreement for the payment or for the completion of the services and may include a schedule for the performance and completion of the services. Any recovery under this subd. 5. a. shall be reduced by the amount recovered as restitution for the same act under subd. 5. am.
938.245(2)(a)5.am. am. That the parent who has custody, as defined in s. 895.035 (1), of the juvenile make reasonable restitution for any damage to the property of another, or for any actual physical injury to another excluding pain and suffering, resulting from the act for which the deferred prosecution agreement is being entered into. Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this subd. 5. am. for damage or injury resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed the amount specified in s. 799.01 (1) (d). Any order under this subd. 5. am. shall include a finding that the parent who has custody of the juvenile is financially able to pay the amount ordered and may allow up to the date of the expiration of the deferred prosecution agreement for the payment. Any recovery under this subd. 5. am. shall be reduced by the amount recovered as restitution for the same act under subd. 5. a.
938.245(2)(a)5.b. b. In addition to any other employment or duties permitted under ch. 103 or any rule or order under ch. 103, a juvenile under 14 years of age who is participating in a restitution project provided by the county or who is performing services for the victim as restitution may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under ch. 103 or any rule or order under ch. 103. A juvenile who is participating in a restitution project provided by the county or who is performing services for the victim as restitution is exempt from the permit requirement under s. 103.70 (1).
938.245(2)(a)5.c. c. Under this subdivision, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make more than $250 in restitution or to perform more than 40 total hours of services for the victim as restitution.
938.245(2)(a)6. 6. That the juvenile participate in a supervised work program or other community service work in accordance with s. 938.34 (5g).
938.245(2)(a)7. 7. That the juvenile be placed with a volunteers in probation program under such conditions as the intake worker determines are reasonable and appropriate, if the juvenile is alleged to have committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence and if the intake worker determines that volunteer supervision under that volunteers in probation program will likely benefit the juvenile and the community. The conditions that the intake worker may establish under this subdivision may include, but need not be limited to, a request to a volunteer to provide for the juvenile a role model, informal counseling, general monitoring and monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph.
938.245(2)(a)8. 8. That the juvenile be placed in a teen court program if all of the following conditions apply:
938.245(2)(a)8.a. a. The chief judge of the judicial administrative district has approved a teen court program established in the juvenile's county of residence and the intake worker determines that participation in the teen court program will likely benefit the juvenile and the community.
938.245(2)(a)8.b. b. The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult or a civil law or ordinance violation.
938.245(2)(a)8.c. c. The juvenile admits to the intake worker, with the juvenile's parent, guardian or legal custodian present, that the juvenile committed the alleged delinquent act or civil law or ordinance violation.
938.245(2)(a)8.d. d. The juvenile has not successfully completed participation in a teen court program during the 2 years before the date of the alleged delinquent act or civil law or ordinance violation.
938.245(2)(b) (b) A deferred prosecution agreement may not include any form of out-of-home placement and may not exceed one year.
938.245(2)(c) (c) If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under par. (a) 4., the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.
938.245(2g) (2g) If the deferred prosecution agreement is based on an allegation that the juvenile violated s. 943.017 and the juvenile has attained the minimum age at which a juvenile may be adjudicated delinquent, the deferred prosecution agreement may require that the juvenile participate for not less than 10 hours nor more than 100 hours in a supervised work program under s. 938.34 (5g) or perform not less than 10 hours nor more than 100 hours of other community service work, except that if the juvenile has not attained 14 years of age the maximum number of hours is 40.
938.245(2v) (2v) If the deferred prosecution agreement is based on an allegation that the juvenile has violated a municipal ordinance enacted under s. 118.163 (2), the deferred prosecution agreement may require that the juvenile's parent, guardian or legal custodian attend school with the juvenile.
938.245(3) (3) The obligations imposed under a deferred prosecution agreement and its effective date shall be set forth in writing. The juvenile and a parent, guardian and legal custodian shall receive a copy of the agreement and order, as shall any agency providing services under the agreement.
938.245(4) (4) The intake worker shall inform the juvenile and the juvenile's parent, guardian and legal custodian in writing of their right to terminate the deferred prosecution agreement at any time or to object at any time to the fact or terms of the deferred prosecution agreement. If an objection arises the intake worker may alter the terms of the agreement or request the district attorney or corporation counsel to file a petition. If the deferred prosecution agreement is terminated the intake worker may request the district attorney or corporation counsel to file a petition.
938.245(5) (5) A deferred prosecution agreement under sub. (2) (a) 1. to 8., (2g) or (2v). may be terminated upon the request of the juvenile, parent, guardian or legal custodian.
938.245(6) (6) A deferred prosecution agreement arising out of an alleged delinquent act is terminated if the district attorney files a delinquency petition within 20 days after receipt of notice of the deferred prosecution agreement under s. 938.24 (5). In such case statements made to the intake worker during the intake inquiry are inadmissible.
938.245(7) (7)
938.245(7)(a)(a) If at any time during the period of a deferred prosecution agreement the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the deferred prosecution agreement. Within 10 days after the cancellation of the deferred prosecution agreement, the intake worker shall notify the district attorney, corporation counsel or other official under s. 938.09 of the cancellation and request that a petition be filed. In delinquency cases, the district attorney may initiate a petition within 20 days after the date of the notice regardless of whether the intake worker has requested that a petition be filed. The judge shall grant appropriate relief as provided in s. 938.315 (3) with respect to any petition which is not filed within the time limit specified in this subsection. Failure to object if a petition is not filed within the time limit specified in this subsection waives that time limit.
938.245(7)(b) (b) In addition to the action taken under par. (a), if the intake worker cancels a deferred prosecution agreement based on a determination that the juvenile's parent, guardian or legal custodian is not meeting the obligations imposed under the agreement, the intake worker shall request the district attorney, corporation counsel or other official under s. 938.09 to file a petition requesting the court to order the juvenile's parent, guardian or legal custodian to show good cause for not meeting the obligations imposed under the agreement. If the district attorney, corporation counsel or other official under s. 938.09 files a petition under this paragraph and if the court finds prosecutive merit for the petition, the court shall grant an order directing the parent, guardian or legal custodian to show good cause, at a time and place fixed by the court, for not meeting the obligations imposed under the agreement. If the parent, guardian or legal custodian does not show good cause for not meeting the obligations imposed under the agreement, the court may impose a forfeiture not to exceed $1,000.
938.245(8) (8) If the obligations imposed under the deferred prosecution agreement are met, the intake worker shall so inform the juvenile and a parent, guardian and legal custodian in writing, and no petition may be filed or citation issued on the charges that brought about the deferred prosecution agreement nor may the charges be the sole basis for a petition under s. 48.13, 48.133, 48.14, 938.13 or 938.14.
938.245(9) (9) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under s. 938.06 (1) or (2).
938.245 History History: 1995 a. 77, 352, 448; 1997 a. 80, 181, 183, 205, 239, 292; 1999 a. 9, 32.
938.25 938.25 Petition: authorization to file.
938.25(1) (1) A petition initiating proceedings under this chapter shall be signed by a person who has knowledge of the facts alleged or is informed of them and believes them to be true. If a petition under s. 938.12 is to be filed, it shall be prepared, signed and filed by the district attorney. The district attorney, corporation counsel or other appropriate official specified under s. 938.09 may file the petition if the proceeding is under s. 938.125 or 938.13. The counsel or guardian ad litem for a parent, relative, guardian or juvenile may file a petition under s. 938.13 or 938.14. The district attorney, corporation counsel or other appropriate person designated by the court may initiate proceedings under s. 938.14 in a manner specified by the court.
938.25(2) (2)
938.25(2)(a)(a) The district attorney, corporation counsel or other appropriate official shall file the petition, close the case, or refer the case back to intake or, with notice to intake, the law enforcement agency investigating the case within 20 days after the date that the intake worker's request was filed. A referral back to intake or the law enforcement agency investigating the case may be made only when the district attorney, corporation counsel or other appropriate official decides not to file a petition or determines that further investigation is necessary. If the case is referred back to intake upon a decision not to file a petition, the intake worker shall close the case or enter into a deferred prosecution agreement within 20 days. If the case is referred back to intake or the law enforcement agency investigating the case for further investigation, the appropriate agency or person shall complete the investigation within 20 days. If another referral is made to the district attorney, corporation counsel or other appropriate official by intake or the law enforcement agency investigating the case, it shall be considered a new referral to which the time limits of this subsection shall apply. The time limits in this subsection may only be extended by a judge upon a showing of good cause under s. 938.315. If a petition is not filed within the time limitations set forth in this subsection and the court has not granted an extension, the petition shall be accompanied by a statement of reasons for the delay. The court shall grant appropriate relief as provided in s. 938.315 (3) with respect to a petition which is not filed within the time limits specified in this paragraph. Failure to object if a petition is not filed within the time limits specified in this paragraph waives those time limits.
938.25(2)(b) (b) In delinquency cases where there has been a case closure or deferred prosecution agreement, the petition shall be filed within 20 days of receipt of the notice of closure or deferred prosecution. Failure to file within 20 days invalidates the petition and affirms the case closure or deferred prosecution agreement, except that the court shall grant appropriate relief as provided in s. 938.315 (3) with respect to a petition that is not filed within the time limit specified in this paragraph and that failure to object if a petition is not filed within the time limit specified in this paragraph waives that time limit. If a petition is filed within 20 days or the time permitted by the court under s. 938.315 (3), whichever is later, the district attorney shall notify the parties to the agreement and the intake worker as soon as possible.
938.25(2m) (2m) If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12) and the district attorney or corporation counsel decides not to file a petition, the district attorney or corporation counsel shall make a reasonable attempt to inform all of the known victims of the juvenile's act that a petition will not be filed against the juvenile at that time.
938.25(3) (3) If the district attorney, corporation counsel or other appropriate official under s. 938.09 refuses to file a petition, any person may request the judge to order that the petition be filed and a hearing shall be held on the request. The judge may order the filing of the petition on his or her own motion. The matter may not be heard by the judge who orders the filing of a petition.
938.25(4) (4)Section 939.74 applies to delinquency petitions filed under this chapter.
938.25(5) (5) A citation issued under s. 938.17 (2) may serve as the initial pleading and is sufficient to confer the court with jurisdiction over the juvenile when the citation is filed with the court.
938.25(6) (6) If a proceeding is brought under s. 938.13, any party to or any governmental or social agency involved in the proceeding may petition the court to issue a temporary restraining order and injunction as provided in s. 813.122 or 813.125. The court shall follow the procedure under s. 813.122 or 813.125 except that the court may combine hearings authorized under s. 813.122 or 813.125 and this chapter, the petitioner for the temporary restraining order and injunction is not subject to the limitations under s. 813.122 (2) or 813.125 (2) and no fee is required regarding the filing of the petition under s. 813.122 or 813.125.
938.25 History History: 1995 a. 77, 352; 1997 a. 35, 181.
938.25 Annotation "Good cause" under sub. (2) (a) is defined. In Interest of F. E. W., 143 Wis. 2d 856, 422 N.W.2d 893 (Ct. App. 1988).
938.25 Annotation Where the state fails to comply with mandatory filing procedures pursuant to sub. (2) (a), the petition must be dismissed with prejudice. In Interest of C.A.K., 154 Wis. 2d 612, 453 N.W.2d 897 (1990).
938.25 Annotation Delinquency and waiver petitions must both be filed to bring about a waiver hearing; the trial court may not proceed with a waiver hearing when the time limits under s. 48.25 for a delinquency petition are not complied with. In Interest of Michael J.L. 174 Wis. 2d 131, 496 N.W.2d 758 (Ct. App. 1993).
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