2005 Wisconsin Act 344

938.243 (4) (title) Applicability.

344,241 Section 241. 938.245 (1) of the statutes is renumbered 938.245 (1) (intro.) and is amended to read:

938.245 (1) When available. (intro.) The An intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if the all of the following apply:

(a) 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

(b) The facts persuade the intake worker that the jurisdiction of the court, if sought, would exist and upon consent of the.

(c) The juvenile, parent, guardian and legal custodian consent.

344,242 Section 242. 938.245 (1m) of the statutes is amended to read:

938.245 (1m) Victims; right to confer with intake worker. 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 so requested the opportunity an opportunity to confer with the intake worker concerning the proposed deferred prosecution agreement. The duty to offer an opportunity to confer under this subsection does not limit the obligation of the intake worker to perform his or her responsibilities under this section.

344,243 Section 243. 938.245 (2) (title) of the statutes is created to read:

938.245 (2) (title) Contents of agreement.

344,244 Section 244. 938.245 (2) (a) (title) of the statutes is created to read:

938.245 (2) (a) (title) Specific conditions.

344,245 Section 245. 938.245 (2) (a) 1. (title) of the statutes is created to read:

938.245 (2) (a) 1. (title) `Counseling.'

344,246 Section 246. 938.245 (2) (a) 2., 3. and 4. of the statutes are amended to read:

938.245 (2) (a) 2. `Compliance with obligations.' That the juvenile and a parent, guardian and, or 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.

3. `Alcohol and other drug abuse assessment.' That the juvenile submit to an alcohol and other drug abuse assessment that conforms to meets 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.

4. `Alcohol and other drug abuse treatment and education.' 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.

344,247 Section 247. 938.245 (2) (a) 5. (title) of the statutes is created to read:

938.245 (2) (a) 5. (title) `Restitution.'

344,248 Section 248. 938.245 (2) (a) 5. a., am. and c. of the statutes are amended to read:

938.245 (2) (a) 5. 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 The 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.

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 $5,000. 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.

c. Under An agreement under this subdivision, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make not more than $250 in restitution or to perform not more than 40 total hours of services for the victim as total restitution.

Note: Revises s. 948.245 (2) (a) 5. c., stats., to clarify that the maximum amount of restitution in terms of monetary amount or services applies to all of the damage or injuries from the act (or acts) that are the basis for the deferred prosecution agreement (i.e., the amount does not apply per charge or per petition, but is the total amount that can be required under the agreement).

The same change is made in ss. 938.32 (1t) (a) 3. and 938.34 (5) (c), stats.

344,249 Section 249. 938.245 (2) (a) 6. (title) of the statutes is created to read:

938.245 (2) (a) 6. (title) `Supervised work program.'

344,250 Section 250. 938.245 (2) (a) 7. of the statutes is amended to read:

938.245 (2) (a) 7. `Volunteers in probation.' 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 an intake worker may establish under this subdivision may include, but need not be limited to, a request to a volunteer to provide be a role model 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.

344,251 Section 251. 938.245 (2) (a) 8. (title) of the statutes is created to read:

938.245 (2) (a) 8. (title) `Teen court program.'

344,252 Section 252. 938.245 (2) (a) 8. c. of the statutes is amended to read:

938.245 (2) (a) 8. c. The juvenile admits to the intake worker, with in the presence of the juvenile's parent, guardian, or legal custodian present, that the juvenile committed the alleged delinquent act or civil law or ordinance violation.

344,253 Section 253. 938.245 (2) (a) 9m. (title), (b) (title) and (c) (title) of the statutes are created to read:

938.245 (2) (a) 9m. (title) `Youth report center.'

(b) (title) No out-of-home placement; term of agreement.

(c) (title) Alcohol or other drug abuse treatment; informed consent.

344,254 Section 254. 938.245 (2g) to (4) of the statutes are amended to read:

938.245 (2g) Graffiti violation. 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 10 years of age, 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.

(2v) Habitual truancy violation. 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.

(3) Obligations in writing. The obligations imposed under a deferred prosecution agreement and its effective date shall be set forth in writing. The intake worker shall provide a copy of the agreement and order to the juvenile and a, to the juvenile's parent, guardian, and legal custodian shall receive a copy of the agreement and order, as shall, and to any agency providing services under the agreement.

(4) Right to terminate or object to agreement. 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 there is 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.

344,255 Section 255. 938.245 (5) (title) of the statutes is created to read:

938.245 (5) (title) Termination upon request.

344,256 Section 256. 938.245 (6) to (9) of the statutes are amended to read:

938.245 (6) Termination if delinquency petition filed. 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 If a petition is filed, statements made to the intake worker during the intake inquiry are inadmissible.

(7) Cancellation by intake worker. (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 is cancelled, the intake worker shall notify the district attorney, corporation counsel, or other official under s. 938.09 of the cancellation and may 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 court shall grant appropriate relief as provided in s. 938.315 (3) with respect to any petition which that is not filed within the time limit specified in this subsection paragraph. Failure to object if a petition is not filed within the time limit specified in this subsection paragraph waives that time limit.

(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. If a petition under this paragraph is filed 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.

(8) When obligations met. 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. No petition may be filed or citation issued on the charges that brought about the deferred prosecution agreement nor may and the charges may not be the sole basis for a petition under s. 48.13, 48.133, 48.14, 938.13, or 938.14.

(9) Written policies. The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate promulgated under s. 938.06 (1) or (2).

344,257 Section 257. 938.25 (1) to (2m) of the statutes are amended to read:

938.25 (1) Requirements; who may file . 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 The district attorney shall prepare, sign, and file 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 a 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.

(2) Time limits; referral back. (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 to 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 after the date of the referral. If the case is referred back to intake or to the law enforcement agency investigating the case for further investigation, the appropriate agency or person shall complete the investigation within 20 days after the date of the referral. If another referral is made to the district attorney, corporation counsel, or other appropriate official by intake or by 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 court upon a showing of good cause under s. 938.315. If a petition is not filed within the time limitations set forth limits 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 that 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.

(b) In delinquency cases where in which there has been a case closure or deferred prosecution agreement, the petition shall be filed within 20 days of after receipt of the notice of the closure or deferred prosecution agreement. Failure to file within those 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 those 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 of the filing as soon as possible.

(2g) American Indian juvenile; consultation with tribal court. If the circumstances described in s. 938.24 (2r) (a) apply, before filing a petition under s. 938.12 or 938.13 (12) the district attorney or corporation counsel shall determine whether the intake worker has received notification under s. 938.24 (2r) (b) from a tribal official that a petition relating to the alleged delinquent act has been or may be filed in tribal court. If the intake worker has received that the notification or if a tribal official has provided that the notification directly to the district attorney or corporation counsel, the district attorney or corporation counsel shall attempt to consult with appropriate tribal officials before filing a petition under s. 938.12 or 938.13 (12).

(2m) Notice to victims if no petition filed. 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.

344,258 Section 258. 938.25 (3) of the statutes is amended to read:

938.25 (3) Court order for filing of petition. 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 court to order that the petition be filed and a hearing shall be held on the request. The judge court may order the filing of the petition on his or her its own motion. The matter may not be heard by the judge who court that orders the filing of a petition.

344,259 Section 259. 938.25 (4) (title), (5) (title) and (6) (title) of the statutes are created to read:

938.25 (4) (title) Time limit on prosecution.

(5) (title) Citation as initial pleading.

(6) (title) Temporary restraining order and injunction.

344,260 Section 260. 938.255 (1) (intro.), (c) and (cm) of the statutes are amended to read:

938.255 (1) Title and contents. (intro.) A petition initiating proceedings under this chapter, other than a petition initiating proceedings under s. 938.12, 938.125, or 938.13 (12), shall be entitled, "In the interest of (juvenile's name), a person under the age of 18". A petition initiating proceedings under s. 938.12, 938.125, or 938.13 (12) shall be entitled, "In the interest of (juvenile's name), a person under the age of 17". A petition initiating proceedings under this chapter shall set forth with specificity specify all of the following:

(c) Whether the juvenile is in custody, and, if so, the place where the juvenile is being held and the time he or she was taken into custody unless there is reasonable cause to believe that such disclosure disclosures would result in imminent danger to the juvenile or physical custodian.

(cm) If the petition is initiating proceedings other than proceedings under s. 938.12, 938.125 or 938.13 (12), whether the juvenile may be subject to the federal Indian child welfare act Child Welfare Act, 25 USC 1901 to 1963.

344,261 Section 261. 938.255 (2) (title) of the statutes is created to read:

938.255 (2) (title) Facts not known.

344,262 Section 262. 938.255 (3) of the statutes is amended to read:

938.255 (3) If certain information not stated. If the information required under sub. (1) (d) or (e) is not stated the petition shall be dismissed or amended under s. 938.263 (2) or dismissed.

344,263 Section 263. 938.255 (4) (title) of the statutes is created to read:

938.255 (4) (title) Copy to juvenile, parents, and others.

344,264 Section 264. 938.263 (1) (title) of the statutes is created to read:

938.263 (1) (title) To cure defect.

344,265 Section 265. 938.263 (2) (title) of the statutes is created to read:

938.263 (2) (title) Before or after plea.

344,266 Section 266. 938.265 of the statutes is amended to read:

938.265 Consultation with victims. In a case in which the juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), the district attorney or corporation counsel shall, as soon as practicable but in any event before the plea hearing under s. 938.30, offer all of the victims of the juvenile's alleged act who have so requested the opportunity an opportunity to confer with the district attorney or corporation counsel concerning the possible outcomes of the proceeding against the juvenile, including potential plea agreements and recommendations that the district attorney or corporation counsel may make concerning dispositions under s. 938.34 or 938.345. The duty to offer an opportunity to confer under this section does not limit the obligation of the district attorney or corporation counsel to exercise his or her discretion concerning the handling of the proceeding against the juvenile.

344,267 Section 267. 938.27 (1) (title), (2) (title) and (3) (title) of the statutes are created to read:

938.27 (1) (title) Summons; when issued.

(2) (title) Summons; necessary persons.

(3) (title) Notice of hearings.

344,268 Section 268. 938.27 (3) (a) 1. of the statutes is amended to read:

938.27 (3) (a) 1. The court shall also notify, under s. 938.273, the juvenile, any parent, guardian, and legal custodian of the juvenile, any foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) of the juvenile, and any person specified in par. (b), if applicable, of all hearings involving the juvenile under this subchapter, except hearings on motions for which notice need only must be provided only to the juvenile and his or her counsel. Where If parents entitled to notice have the same place of residence, notice to one shall constitute constitutes notice to the other. The first notice to any interested party, foster parent, treatment foster parent, or other physical custodian described in s. 48.62 (2) shall be written in writing and may have a copy of the petition attached to it. Thereafter, notice of Notices of subsequent hearings may be given by telephone at least 72 hours before the time of the hearing. The person giving telephone notice shall place in the case file a signed statement of the date and time notice was given and the person to whom he or she spoke.

344,269 Section 269. 938.27 (4) (title) of the statutes is created to read:

938.27 (4) (title) Contents of notice.

344,270 Section 270. 938.27 (4m), (5) and (6) of the statutes are amended to read:

938.27 (4m) Notice to victims. The district attorney or corporation counsel shall make a reasonable attempt to contact any known victim or alleged victim of a juvenile's act or alleged act to inform them of the right to receive notice of any hearing under this chapter involving the juvenile. If a victim or alleged victim indicates that he or she wishes to receive that notice of any hearing under this chapter involving the juvenile, the district attorney or corporation counsel shall make a reasonable attempt to notify, under s. 938.273, that victim or alleged victim of any hearing under this chapter involving the juvenile. Any failure Failure to comply with this subsection is not a ground for an appeal of a judgment or dispositional order or for any court to reverse or modify a judgment or dispositional order.