SB689: Bill Text

LRB-4687/1

GMM:bjk:ph

2009 - 2010 LEGISLATURE

2009 Senate BILL 689

April 14, 2010 - Introduced by Senators Taylor and Lehman, cosponsored by Representatives Kessler, Roys, Pasch, Turner and Berceau. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB689,1,7 An Act to renumber and amend 938.317; to amend 756.06 (2) (d), 938.243 (1) (c), 938.255 (1) (d), 938.30 (2), 938.31 (2), 938.31 (4) and 938.355 (4) (b); and to create 938.235 (6), 938.243 (1) (g), 938.317 (2) and 938.355 (4) (c) of the statutes; relating to: the right to a trial by jury for a juvenile for whom the petitioner has reserved the right to recommend placement in the Serious Juvenile Offender Program or in a juvenile correctional facility beyond the age of majority.

Analysis by the Legislative Reference Bureau

Under current law, a juvenile who is alleged to be delinquent, and the parent, guardian, or legal custodian of that juvenile, do not have the right to a trial by jury in a proceeding under the Juvenile Justice Code. This bill grants that right to such a juvenile and to his or her parent, guardian, or legal custodian, if the person filing the delinquency petition reserves the right to recommend placement of the juvenile in the Serious Juvenile Offender Program or in a juvenile correctional facility beyond the age of 17 years.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB689, s. 1 Section 1. 756.06 (2) (d) of the statutes is amended to read:

SB689,2,3 756.06 (2) (d) This subsection does not apply to cases under ch. 938 other than cases described in s. 938.30 (2) in which the juvenile has the right to a jury trial.

SB689, s. 2 Section 2. 938.235 (6) of the statutes is created to read:

SB689,2,7 938.235 (6) Communication to a jury. In jury trials under this chapter, the guardian ad litem or the court may tell the jury that the guardian ad litem represents the interests of the person for whom the guardian ad litem was appointed.

SB689, s. 3 Section 3. 938.243 (1) (c) of the statutes is amended to read:

SB689,2,12 938.243 (1) (c) The right to remain silent, the fact that in a delinquency proceeding the silence of the juvenile is not to be adversely considered by the court or jury, and the fact that in a nondelinquency proceeding the silence of any party may be relevant in the proceeding.

SB689, s. 4 Section 4. 938.243 (1) (g) of the statutes is created to read:

SB689,2,17 938.243 (1) (g) The right to a jury trial, if the petitioner reserves the right under s. 938.255 (1) (d) to recommend placement of the juvenile in the Serious Juvenile Offender Program under s. 938.34 (4h) or in a juvenile correctional facility under s. 938.34 (4m) beyond the juvenile's 17th birthday.

SB689, s. 5 Section 5. 938.255 (1) (d) of the statutes is amended to read:

SB689,3,4 938.255 (1) (d) If violation of a criminal statute, an ordinance, or another law is alleged, the citation to the appropriate law or ordinance as well as, facts sufficient to establish probable cause that an offense has been committed and that the juvenile named in the petition committed the offense, and a statement whether the petitioner is reserving the right to recommend placement of the juvenile in the Serious Juvenile Offender Program under s. 938.34 (4h) or in a juvenile correctional facility under s. 938.34 (4m) beyond the juvenile's 17th birthday.

SB689, s. 6 Section 6. 938.30 (2) of the statutes, as affected by 2009 Wisconsin Act 94, is amended to read:

SB689,3,20 938.30 (2) Information to juvenile and parents; basic rights; substitution. At or before the commencement of the hearing under this section the juvenile and the parent, guardian, legal custodian, or Indian custodian shall be advised of their rights as specified in s. 938.243 and shall be informed that the hearing shall be to the court and that a request for a substitution of judge under s. 938.29 must be made before the end of the plea hearing or is waived, except that if the juvenile is before the court on a petition under s. 938.12 in which the petitioner has reserved the right under s. 938.255 (1) (d) to recommend placement of the juvenile in the Serious Juvenile Offender Program under s. 938.34 (4h) or in a juvenile correctional facility under s. 938.34 (4m) beyond the juvenile's 17th birthday, the court shall inform the juvenile and the parent, guardian, or legal custodian that a request for a jury trial must be made before the end of the plea hearing or is waived. Nonpetitioning parties, including the juvenile, shall be granted a continuance of the plea hearing if they wish to consult with an attorney on the request for a jury trial or substitution of a judge.

SB689, s. 7 Section 7. 938.31 (2) of the statutes is amended to read:

SB689,4,9 938.31 (2) Hearing to the court; procedures. The hearing shall be to the court unless a juvenile who has the right to a jury trial as described in s. 938.30 (2) or the parent, guardian, or legal custodian of the juvenile exercises that right by demanding a jury trial at any time before or during the plea hearing. Sections 972.03 and 972.04 shall govern the selection of jurors in cases in which a jury trial has been demanded. If the hearing involves a child victim, as defined in s. 938.02 (20m) (a) 1., or a child witness, as defined in s. 950.02 (5), the court may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) and, with the district attorney, shall comply with s. 971.105. At the conclusion of the hearing, the court or jury shall make a determination of the facts. If the court finds that the juvenile is not within the jurisdiction of the court or the court or jury finds that the facts alleged in the petition or citation have not been proved, the court shall dismiss the petition or citation with prejudice.

SB689, s. 8 Section 8. 938.31 (4) of the statutes is amended to read:

SB689,4,21 938.31 (4) Findings by court or jury. The court shall make findings of fact and conclusions of law relating to the allegations of a petition under s. 938.12, 938.125, or 938.13, except that in cases in which the petitioner has reserved the right under s. 938.255 (1) (d) to recommend placement of the juvenile in the Serious Juvenile Offender Program under s. 938.34 (4h) or in a juvenile correctional facility under s. 938.34 (4m) beyond the juvenile's 17th birthday, the court or jury shall make findings of fact and the court shall make conclusions of law relating to the allegations of the petition. In cases alleging a juvenile to be delinquent or in need of protection or services under s. 938.13 (12), the court shall make findings relating to the proof of the violation of law and to the proof that the juvenile named in the petition committed the violation alleged.

SB689, s. 9 Section 9. 938.317 of the statutes is renumbered 938.317 (intro.) and amended to read:

SB689,4,24 938.317 Jeopardy. (intro.) Jeopardy attaches:

SB689,4,25 (1) In a trial to the court, when a witness is sworn.

SB689, s. 10 Section 10. 938.317 (2) of the statutes is created to read:

SB689,5,3 938.317 (2) In a jury trial, when the jury selection is completed and the jury is sworn.

SB689, s. 11 Section 11. 938.355 (4) (b) of the statutes is amended to read:

SB689,5,25 938.355 (4) (b) Except as provided in under par. (c) and s. 938.368, an order under s. 938.34 (4d) or (4m) made before the juvenile attains 18 years of age may apply for up to 2 years after the date on which the order is granted or until the juvenile's 18th birthday, whichever is earlier, unless the court specifies a shorter period of time or the court terminates the order sooner. If the order does not specify a termination date, it shall apply for one year after the date on which the order is granted or until the juvenile's 18th birthday, whichever is earlier, unless the court terminates the order sooner. Except as provided in under par. (c) and s. 938.368, an order under s. 938.34 (4h) made before the juvenile attains 18 years of age shall apply for 5 years after the date on which the order is granted, if the juvenile is adjudicated delinquent for committing a violation of s. 943.10 (2) or for committing an act that would be punishable as a Class B or C felony if committed by an adult, or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class A felony if committed by an adult. Except as provided in under par. (c) and s. 938.368, an extension of an order under s. 938.34 (4d), (4h), (4m), or (4n) made before the juvenile attains 17 years of age shall terminate at the end of one year after the date on which the order is granted unless the court specifies a shorter period of time or the court terminates the order sooner. No extension under s. 938.365 of an original dispositional order under s. 938.34 (4d), (4h), (4m), or (4n) may be granted for a juvenile who is 17 years of age or older when the original dispositional order terminates.

SB689, s. 12 Section 12. 938.355 (4) (c) of the statutes is created to read:

SB689,6,6 938.355 (4) (c) An order under s. 938.34 (4h) or (4m) may apply beyond the juvenile's 17th birthday only if the petitioner has reserved the right under s. 938.255 (1) (d) to recommend placement of the juvenile in the Serious Juvenile Offender Program under s. 938.34 (4h) or in a juvenile correctional facility under s. 938.34 (4m) beyond the juvenile's 17th birthday.

SB689, s. 13 Section 13. Initial applicability.

SB689,6,10 (1) Jury trials in proceedings under the juvenile justice code. This act first applies to a violation of a criminal law allegedly committed on the effective date of this subsection.

SB689,6,11 (End)