2005 Wisconsin Act 344

344,152 Section 152. 938.18 (2) of the statutes is amended to read:

938.18 (2) Petition. The waiver hearing shall be brought on by filing a petition alleging delinquency drafted under s. 938.255 and a petition for waiver of jurisdiction which may be filed by the district attorney or the juvenile or may be initiated by the court and shall contain a brief statement of the facts supporting the request for waiver. The petition for waiver of jurisdiction shall be accompanied by or filed after the filing of a petition alleging delinquency and shall be filed prior to the plea hearing, except that if the juvenile denies the facts of the petition and becomes 17 years of age before an adjudication, the petition for waiver of jurisdiction may be filed at any time prior to the adjudication. If the court initiates the petition for waiver of jurisdiction, the judge shall disqualify himself or herself from any future proceedings on the case.

Note: Creates a provision in s. 938.18 (2), stats., based on current s. 938.18 (1) (b), stats., which is repealed in this bill.

344,153 Section 153. 938.18 (2m) (title) of the statutes is created to read:

938.18 (2m) (title) Agency report.

344,154 Section 154. 938.18 (3) (intro.) of the statutes is created to read:

938.18 (3) Rights of juvenile. (intro.) All of the following apply at a waiver hearing under this section:

344,155 Section 155. 938.18 (3) (a), (b) and (c) of the statutes are amended to read:

938.18 (3) (a) The juvenile shall be represented by counsel at the waiver hearing. Written notice of the time, place, and purpose of the hearing shall be given to the juvenile, any parent, guardian, or legal custodian, and counsel at least 3 days prior to the hearing. The notice shall contain a statement of the requirements of s. 938.29 (2) with regard to substitution of the judge. Where If parents entitled to notice have the same address, notice to one constitutes notice to the other. Counsel for the juvenile shall have access to the social records and other reports consistent with under s. 938.293.

(b) The juvenile has the right to present testimony on his or her own behalf including expert testimony and has the right to cross-examine witnesses at the hearing.

(c) The juvenile does not have the right to a jury at a hearing under this section.

344,156 Section 156. 938.18 (4) (title) of the statutes is created to read:

938.18 (4) (title) Prosecutive merit; contested or uncontested petition.

344,157 Section 157. 938.18 (4) (a) and (b) of the statutes are amended to read:

938.18 (4) (a) The court shall determine whether the matter has prosecutive merit before proceeding to determine if it should waive jurisdiction. If the court determines that the matter does not have prosecutive merit, the court shall deny the petition for waiver.

(b) If a petition for waiver of jurisdiction is contested, the district attorney shall present relevant testimony and the court, after taking relevant that testimony which the district attorney shall present and considering other relevant evidence, shall base its decision whether to waive jurisdiction on the criteria specified in sub. (5).

Note: Clarifies s. 938.18 (4) (a), stats., by providing that the juvenile court must deny the petition for waiver if it determines that the matter does not have prosecutive merit.

344,158 Section 158. 938.18 (5) (title) of the statutes is created to read:

938.18 (5) (title) Criteria for waiver.

344,159 Section 159. 938.18 (5) (a) of the statutes is amended to read:

938.18 (5) (a) The personality and prior record of the juvenile, including whether the juvenile is mentally ill or developmentally disabled, whether the court has previously waived its jurisdiction over the juvenile, whether the juvenile has been previously convicted following a waiver of the court's jurisdiction or has been previously found delinquent, whether such conviction or delinquency involved the infliction of serious bodily injury, the juvenile's motives and attitudes has a mental illness or developmental disability, the juvenile's physical and mental maturity, and the juvenile's pattern of living, prior offenses, prior treatment history, and apparent potential for responding to future treatment.

Note: The stricken language beginning with "whether the court..." is included in s. 938.18 (5) (am), stats., as created by this bill.

344,160 Section 160. 938.18 (5) (am) of the statutes is created to read:

938.18 (5) (am) The prior record of the juvenile, including whether the court has previously waived its jurisdiction over the juvenile, whether the juvenile has been previously convicted following a waiver of the court's jurisdiction or has been previously found delinquent, whether such conviction or delinquency involved the infliction of serious bodily injury, the juvenile's motives and attitudes, and the juvenile's prior offenses.

344,161 Section 161. 938.18 (5) (b) of the statutes is amended to read:

938.18 (5) (b) The type and seriousness of the offense, including whether it was against persons or property, and the extent to which it was committed in a violent, aggressive, premeditated or willful manner, and its prosecutive merit.

Note: Deletes the reference to "prosecutive merit" in s. 938.18 (5) (b), stats., because the determination of whether the matter before the court has prosecutive merit is governed by s. 938.18 (4) (a), stats.

344,162 Section 162. 938.18 (6) of the statutes is amended to read:

938.18 (6) Decision on waiver. After considering the criteria under sub. (5), the court shall state its finding with respect to the criteria on the record, and, if the court determines on the record that it there is established by clear and convincing evidence that it would be is contrary to the best interests of the juvenile or of the public to hear the case, the court shall enter an order waiving jurisdiction and referring the matter to the district attorney for appropriate proceedings in the court of criminal jurisdiction, and the. After the order, the court of criminal jurisdiction thereafter has exclusive jurisdiction.

344,163 Section 163. 938.18 (7) (title), (8) (title) and (9) (title) of the statutes are created to read:

938.18 (7) (title) Juvenile who absconds.

(8) (title) Transfer to adult facility; bail.

(9) (title) Criminal charge.

344,164 Section 164. 938.183 (1) (title) of the statutes is created to read:

938.183 (1) (title) Juveniles under adult court jurisdiction.

344,165 Section 165. 938.183 (1) (a) and (am) of the statutes are amended to read:

938.183 (1) (a) A juvenile who has been adjudicated delinquent and who is alleged to have violated s. 940.20 (1) or 946.43 while placed in a secured juvenile correctional facility, a secure juvenile detention facility, a secured child caring institution or a secured group home residential care center for children and youth or who has been adjudicated delinquent and who is alleged to have committed a violation of s. 940.20 (2m).

(am) A juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 10th birthday, but before the juvenile's 15th birthday.

Note: This language is deleted to reflect the reorganization of s. 938.183 (1m) and (2), stats., by this bill.

344,166 Section 166. 938.183 (1m) (intro.) and (c) 1. and 2. of the statutes are amended to read:

938.183 (1m) Criminal penalties and procedures. (intro.) Notwithstanding subchs. IV to VI, a juvenile described in sub. (1) is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for the crime that the juvenile is alleged to have committed except as follows:

(c) 1. The Except as provided in subd. 3., the court of criminal jurisdiction finds that the juvenile has committed a lesser offense or a joined offense that is not a violation of s. 940.20 (1) or (2m) or 946.43 under the circumstances described in sub. (1) (a), that is not an attempt to violate s. 940.01 under the circumstances described in sub. (1) (am), that is not a violation of s. 940.02 or 940.05 under the circumstances described in sub. (1) (am), and that is not an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18.

2. The Except as provided in subd. 3., the court of criminal jurisdiction finds that the juvenile has committed a lesser offense or a joined offense that is a violation of s. 940.20 (1) or (2m) or 946.43 under the circumstances described in sub. (1) (a), that is an attempt to violate s. 940.01 under the circumstances described in sub. (1) (am), that is a violation of s. 940.02 or 940.05 under the circumstances described in sub. (1) (am), or that is an offense for which the court assigned to exercise jurisdiction under this chapter and ch. 48 may waive its jurisdiction over the juvenile under s. 938.18 and the court of criminal jurisdiction, after considering the criteria specified in s. 938.18 (5), determines that the juvenile has proved by clear and convincing evidence that it would be in the best interests of the juvenile and of the public to adjudge the juvenile to be delinquent and impose a disposition specified in s. 938.34.

344,167 Section 167. 938.183 (2) of the statutes is renumbered 938.183 (1m) (c) 3. and amended to read:

938.183 (1m) (c) 3. Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction have exclusive original jurisdiction over For a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 15th birthday. Notwithstanding ss. 938.12 (1) and 938.18, courts of criminal jurisdiction also have exclusive original jurisdiction over a juvenile specified in the preceding sentence who is alleged to have attempted or committed a violation of any state law in addition to the violation alleged under the preceding sentence if the violation alleged under this sentence and the violation alleged under the preceding sentence may be joined under s. 971.12 (1). Notwithstanding subchs. IV to VI, a juvenile who is alleged to have attempted or committed a violation of s. 940.01 or to have committed a violation of s. 940.02 or 940.05 on or after the juvenile's 15th birthday and a juvenile who is alleged to have attempted or committed a violation of any state criminal law, if that violation and an attempt to commit a violation of s. 940.01 or the commission of a violation of s. 940.01, 940.02 or 940.05 may be joined under s. 971.12 (1), is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for the crime that the juvenile is alleged to have committed, except that the court of criminal jurisdiction shall, in lieu of convicting the juvenile, adjudge the juvenile to be delinquent and impose a disposition specified in s. 938.34 if, the court of criminal jurisdiction finds that the juvenile has committed a lesser offense than the offense alleged under this subsection or has committed an offense that is joined under s. 971.12 (1) to an attempt to commit a violation of s. 940.01 or to the commission of a violation of s. 940.01, 940.02 or 940.05, but has not attempted to commit a violation of s. 940.01 or committed a violation of s. 940.01, 940.02, or 940.05, and the court of criminal jurisdiction, after considering the criteria specified in under s. 938.18 (5), determines that the juvenile has proved by clear and convincing evidence that it would be in the best interests of the juvenile and of the public to adjudge the juvenile to be delinquent and impose a disposition specified in under s. 938.34.

344,168 Section 168. 938.183 (3) of the statutes is amended to read:

938.183 (3) Placement in state prison; parole. When a juvenile who is subject to a criminal penalty under sub. (1m) or (2) or s. 938.183 (2), 2003 stats., attains the age of 17 years, the department may place the juvenile in a state prison named in s. 302.01, except that the department may not place any person under the age of 18 years in the correctional institution authorized in s. 301.16 (1n). If a juvenile who is subject to a criminal penalty under sub. (1m) or (2) is 15 years of age or over, the department may transfer the juvenile to the Racine youthful offender correctional facility named in s. 302.01 as provided in s. 938.357 (4) (d). A juvenile who is subject to a criminal penalty under sub. (1m) or (2) or under s. 938.183 (2), 2003 stats., for an act committed before December 31, 1999, is eligible for parole under s. 304.06.

Note: Deletes the second-to-last sentence because the authority to transfer juveniles to the Racine Youthful Offender Correctional Facility under s. 938.357 (4) (d), stats., is repealed in this bill. See the Note to s. 938.357 (4) (d), stats., as affected by this bill.

344,169 Section 169. 938.183 (4) (title) of the statutes is created to read:

938.183 (4) (title) Child support.

344,170 Section 170. 938.185 (1) (title) of the statutes is created to read:

938.185 (1) (title) Proceedings generally.

344,171 Section 171. 938.185 (2) of the statutes is amended to read:

938.185 (2) Revision and extension of orders. Venue for any proceeding under s. 938.363 or 938.365 shall be in the county where the dispositional order was issued, unless the juvenile's county of residence has changed, or the parent of the juvenile has resided in a different county of this state for at least 6 months. In either case, the court may, upon a motion and for good cause shown, transfer the case, along with all appropriate records, to the county of residence of the juvenile or parent.

344,172 Section 172. 938.185 (3) (title) and (4) (title) of the statutes are created to read:

938.185 (3) (title) Sex offender registry violations.

(4) (title) American Indian juveniles.

344,173 Section 173. 938.19 (1) (title) of the statutes is created to read:

938.19 (1) (title) Criteria.

344,174 Section 174. 938.19 (1) (b) and (c) of the statutes are amended to read:

938.19 (1) (b) A capias issued by a judge court under s. 938.28.

(c) An A court order of the judge if made upon there is a showing satisfactory to the judge that the welfare of the juvenile demands that the juvenile be immediately removed from his or her present custody. The order shall specify that the juvenile be held in custody under s. 938.207.

344,175 Section 175. 938.19 (1) (d) 1., 6. and 7. of the statutes are amended to read:

938.19 (1) (d) 1. A capias or a warrant for the juvenile's apprehension has been issued in this state, or that the juvenile is a fugitive from justice.

6. The juvenile has violated a condition of court-ordered supervision or aftercare supervision administered by the department or a county department, a condition of the juvenile's placement in a Type 2 secured juvenile correctional facility or a Type 2 child caring institution residential care center for children and youth, or a condition of the juvenile's participation in the intensive supervision program under s. 938.534.

7. The juvenile has violated the conditions of an order under s. 938.21 (4) or the conditions of an order for temporary physical custody issued by an intake worker.

344,176 Section 176. 938.19 (1m) and (2) of the statutes are amended to read:

938.19 (1m) Truancy. A juvenile who is absent from school without an acceptable excuse under s. 118.15 may be taken into custody by an individual designated under s. 118.16 (2m) (a) if the school attendance officer of the school district in which the juvenile resides, or the juvenile's parent, guardian, or legal custodian, requests that the juvenile be taken into custody. The request shall specifically identify the juvenile.

(2) Notification of parent, guardian, legal custodian. When a juvenile is taken into physical custody as provided in under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, and legal custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian, and legal custodian of the juvenile are notified, or the juvenile is delivered to an intake worker under s. 938.20 (3), whichever occurs first. If the juvenile is delivered to the intake worker before the parent, guardian, and legal custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian, and legal custodian of the juvenile are notified.

344,177 Section 177. 938.19 (3) (title) of the statutes is created to read:

938.19 (3) (title) Not an arrest.

344,178 Section 178. 938.20 (2) (title) of the statutes is created to read:

938.20 (2) (title) Release of juvenile.

344,179 Section 179. 938.20 (2) (cm) and (d) of the statutes are amended to read:

938.20 (2) (cm) If the juvenile has violated a condition of aftercare supervision administered by the department or a county department, a condition of the juvenile's placement in a Type 2 secured juvenile correctional facility or a Type 2 child caring institution residential care center for children and youth, or a condition of the juvenile's participation in the intensive supervision program under s. 938.534, the person who took the juvenile into custody may release the juvenile to the department or county department, whichever has supervision over the juvenile.

(d) If the juvenile is a runaway, the person who took the juvenile into custody may release the juvenile to a home authorized under s. 48.227.

344,180 Section 180. 938.20 (3) of the statutes is amended to read:

938.20 (3) Notification to parent, guardian, legal custodian of release. If the juvenile is released under sub. (2) (b) to (d) or (g), the person who took the juvenile into custody shall immediately notify the juvenile's parent, guardian, and legal custodian of the time and circumstances of the release and the person, if any, to whom the juvenile was released. If the juvenile is not released under sub. (2), the person who took the juvenile into custody shall arrange in a manner determined by the court and law enforcement agencies for the juvenile to be interviewed by the intake worker under s. 938.067 (2), and. The person who took the juvenile into custody shall make a statement in writing with supporting facts of the reasons why the juvenile was taken into physical custody and shall give any juvenile 10 years of age or older a copy of the statement in addition to giving a copy to the intake worker. When and to any juvenile 10 years of age or older. If the intake interview is not done in person, the report may be read to the intake worker.

344,181 Section 181. 938.20 (4) (title) of the statutes is created to read:

938.20 (4) (title) Delivery to hospital or physician.

344,182 Section 182. 938.20 (5) of the statutes is amended to read:

938.20 (5) (title) Emergency detention of juvenile. If the juvenile is believed to have a mental illness or developmental disability or to be mentally ill, drug dependent or developmentally disabled, and exhibits conduct which that constitutes a substantial probability of physical harm to the juvenile or to others, or a very substantial probability of physical impairment or injury to the juvenile exists due to the impaired judgment of the juvenile, and if the standards of s. 51.15 are met, the person taking the juvenile into physical custody, the intake worker, or other appropriate person shall proceed under s. 51.15.

344,183 Section 183. 938.20 (6) (title) and (7) (title) of the statutes are created to read:

938.20 (6) (title) Delivery of intoxicated juvenile.

(7) (title) Duties of intake worker.

344,184 Section 184. 938.20 (7) (a) and (b) of the statutes are amended to read:

938.20 (7) (a) When a juvenile who is possibly involved in a delinquent act is interviewed by an intake worker, the intake worker shall inform any the juvenile possibly involved in a delinquent act of his or her right to counsel and the right against self-incrimination.

(b) The intake worker shall review the need to hold the juvenile in custody and shall make every effort to release the juvenile from custody as provided in par. (c). The intake worker shall base his or her decision as to whether to release the juvenile or to continue to hold the juvenile in custody on the criteria specified in under s. 938.205 and criteria established under s. 938.06 (1) or (2).

344,185 Section 185. 938.20 (7) (c) 1., 1m. and 2. of the statutes are amended to read: