938.14 History
History: 1995 a. 77.
938.15
938.15
Jurisdiction of other courts to determine legal custody. Nothing contained in
s. 938.12,
938.13 or
938.14 deprives other courts of the right to determine the legal custody of juveniles by habeas corpus or to determine the legal custody or guardianship of juveniles if the legal custody or guardianship is incidental to the determination of causes pending in the other courts. But the jurisdiction of the court assigned to exercise jurisdiction under this chapter and
ch. 48 is paramount in all cases involving juveniles alleged to come within the provisions of
ss. 938.12 to
938.14.
938.15 History
History: 1995 a. 77.
938.17
938.17
Jurisdiction over traffic, boating, snowmobile and all-terrain vehicle violations and over civil law and ordinance violations. 938.17(1)
(1)
Traffic, boating, snowmobile and all-terrain vehicle violations. Except for
ss. 342.06 (2) and
344.48 (1), and
ss. 30.67 (1) and
346.67 when death or injury occurs, courts of criminal and civil jurisdiction shall have exclusive jurisdiction in proceedings against juveniles 16 or older for violations of
s. 23.33, of
ss. 30.50 to
30.80, of
chs. 341 to
351, and of traffic regulations as defined in
s. 345.20 and nonmoving traffic violations as defined in
s. 345.28 (1). A juvenile charged with a traffic, boating, snowmobile or all-terrain vehicle offense in a court of criminal or civil jurisdiction shall be treated as an adult before the trial of the proceeding except that the juvenile may be held in secure custody only in a secure detention facility. A juvenile convicted of a traffic, boating, snowmobile or all-terrain vehicle offense in a court of criminal or civil jurisdiction shall be treated as an adult for sentencing purposes except as follows:
938.17(1)(a)
(a) The court may disregard any minimum period of incarceration specified for the offense.
938.17(1)(b)
(b) If the court orders the juvenile to serve a period of incarceration of less than 6 months, the juvenile may serve that period of incarceration only in a secure detention facility.
938.17(1)(c)
(c) If the court of civil or criminal jurisdiction orders the juvenile to serve a period of incarceration of 6 months or more, that court shall petition the court assigned to exercise jurisdiction under this chapter and
ch. 48 to order one or more of the dispositions provided in
s. 938.34, including placement of the juvenile in a secured correctional facility under
s. 938.34 (4m), if appropriate.
938.17(2)
(2) Civil law and ordinance violations. 938.17(2)(a)1.1. Except as provided in
sub. (1), municipal courts have concurrent jurisdiction with the court assigned to exercise jurisdiction under this chapter and
ch. 48 in proceedings against juveniles aged 12 or older for violations of county, town or other municipal ordinances. If evidence is provided by the school attendance officer that the activities under
s. 118.16 (5) have been completed or were not completed due to the juvenile's absence from school as provided in
s. 118.16 (5m), the municipal court specified in
subd. 2. may exercise jurisdiction in proceedings against a juvenile for a violation of an ordinance enacted under
s. 118.163 (2) regardless of the juvenile's age and regardless of whether the court assigned to exercise jurisdiction under this chapter and
ch. 48 has jurisdiction under
s. 938.13 (6).
938.17(2)(a)2.a.a. In this subdivision, "administrative center" means the main administrative offices of a school district.
938.17(2)(a)2.b.
b. The municipal court that may exercise jurisdiction under
subd. 1. is the municipal court that is located in the same municipality as the administrative center of the school district in which the juvenile is enrolled, if that municipality has adopted an ordinance under
s. 118.163.
938.17(2)(a)2.c.
c. If the municipality specified under
subd. 2. b. has not adopted an ordinance under
s. 118.163, the municipal court that may exercise jurisdiction under
subd. 1. is the municipal court that is located in the municipality where the school in which the juvenile is enrolled is located, if that municipality has adopted an ordinance under
s. 118.163.
938.17(2)(a)2.d.
d. If the municipality specified under
subd. 2. c. has not adopted an ordinance under
s. 118.163, the municipal court that may exercise jurisdiction under
subd. 1. is the municipal court that is located in the municipality where the juvenile resides, if that municipality has adopted an ordinance under
s. 118.163.
938.17(2)(a)3.
3. When a juvenile is alleged to have violated a municipal ordinance, the juvenile may be:
938.17(2)(a)3.a.
a. Issued a citation directing the juvenile to appear in municipal court or make a deposit or stipulation and deposit in lieu of appearance;
938.17(2)(a)3.b.
b. Issued a citation directing the juvenile to appear in the court assigned to exercise jurisdiction under this chapter and
ch. 48 or make a deposit or stipulation and deposit in lieu of appearance as provided in
s. 938.237; or
938.17(2)(a)3.c.
c. Referred to intake for a determination whether a petition should be filed in the court assigned to exercise jurisdiction under this chapter and
ch. 48 pursuant to
s. 938.125.
938.17(2)(b)
(b) When a juvenile 12 years of age or older is alleged to have violated a civil law punishable by a forfeiture or where a juvenile is alleged to have violated a municipal ordinance but there is no municipal court in the municipality, the juvenile may be:
938.17(2)(b)1.
1. Issued a citation directing the juvenile to appear in the court assigned to exercise jurisdiction under this chapter and
ch. 48 or make a deposit or stipulation and deposit in lieu of appearance as provided in
s. 938.237; or
938.17(2)(b)2.
2. Referred to intake for a determination whether a petition should be filed in the court assigned to exercise jurisdiction under this chapter and
ch. 48 pursuant to
s. 938.125.
938.17(2)(c)
(c) The citation procedures described in
ch. 800 shall govern proceedings involving juveniles in municipal court, except that this chapter shall govern the taking and holding of a juvenile in custody and
par. (cg) shall govern the issuing of a summons to the juvenile's parent, guardian or legal custodian. When a juvenile is before the court assigned to exercise jurisdiction under this chapter and
ch. 48 upon a citation alleging the juvenile to have violated a civil law or municipal ordinance, the procedures specified in
s. 938.237 shall apply. If a citation is issued to a juvenile, the issuing agency shall notify the juvenile's parent, guardian and legal custodian within 7 days. The agency issuing a citation to a juvenile who is 12 to 15 years of age for a violation of
s. 125.07 (4) (a) or
(b),
125.085 (3) (b),
125.09 (2),
961.573 (2),
961.574 (2) or
961.575 (2) or an ordinance conforming to one of those statutes shall send a copy to an intake worker under
s. 938.24 for informational purposes only.
938.17(2)(cg)
(cg) After a citation is issued, unless the juvenile and his or her parent, guardian and legal custodian voluntarily appear, the municipal court may issue a summons requiring the parent, guardian and legal custodian of the juvenile to appear personally at any hearing involving the juvenile and, if the court so orders, to bring the juvenile before the court at a time and place stated.
Section 938.273 shall govern the service of a summons under this paragraph, except that the expense of service or publication of a summons and of the travelling expenses and fees as allowed in
ch. 885 of a person summoned shall be a charge on the municipality of the court issuing the summons when approved by the court. If any person summoned under this paragraph fails without reasonable cause to appear, he or she may be proceeded against for contempt of court under
s. 785.06. If a summons cannot be served or if the person served fails to obey the summons or if it appears to the court that the service will be ineffectual, a capias may be issued for the juvenile and for the parent, guardian and legal custodian.
938.17(2)(cm)
(cm) A city, village or town may adopt an ordinance or bylaw specifying which of the dispositions under
ss. 938.343 and
938.344 and sanctions under
s. 938.355 (6) (d) the municipal court of that city, village or town is authorized to impose or petition the court assigned to exercise jurisdiction under this chapter and
ch. 48 to impose. The use by the court of those dispositions and sanctions is subject to any ordinance or bylaw adopted under this paragraph.
938.17(2)(d)
(d) If a municipal court finds that the juvenile violated a municipal ordinance other than an ordinance enacted under
s. 118.163 or an ordinance that conforms to
s. 125.07 (4) (a) or
(b),
125.085 (3) (b),
125.09 (2),
961.573 (2),
961.574 (2) or
961.575 (2), the court shall enter any of the dispositional orders permitted under
s. 938.343 that are authorized under
par. (cm). If a juvenile fails to pay the forfeiture imposed by the municipal court, the court may not impose a jail sentence but may suspend any license issued under
ch. 29 for not less than 30 days nor more than 5 years, or suspend the juvenile's operating privilege, as defined in
s. 340.01 (40), for not less than 30 days nor more than 5 years. If a court suspends a license or privilege under this section, the court shall immediately take possession of the applicable license and forward it to the department that issued the license, together with the notice of suspension clearly stating that the suspension is for failure to pay a forfeiture imposed by the court. If the forfeiture is paid during the period of suspension, the court shall immediately notify the department, which shall thereupon return the license to the person.
938.17(2)(f)
(f) If the act the juvenile committed resulted in personal injury or damage to or loss of the property of another, the municipal court shall, to the extent possible, provide each known victim of the act with the information contained in the notice required under
s. 938.346.
938.17(2)(g)
(g) If a municipal court finds that a juvenile violated a municipal ordinance enacted under
s. 118.163 (2), it shall enter a dispositional order under
s. 938.342 (1) that is consistent with the municipal ordinance.
938.17(2)(h)1.1. If a juvenile who has violated a municipal ordinance violates a condition of his or her dispositional order, the municipal court may impose on the juvenile any of the sanctions specified in
s. 938.355 (6) (d) 2. to
4. that are authorized under
par. (cm) except for monitoring by an electronic monitoring system or may petition the court assigned to exercise jurisdiction under this chapter and
ch. 48 to impose on the juvenile the sanction specified in
s. 938.355 (6) (d) 1. or home detention with monitoring by an electronic monitoring system as specified in
s. 938.355 (6) (d) 3., if authorized under
par. (cm), if at the time of judgment the court explained the conditions to the juvenile and informed the juvenile of the possible sanctions under
s. 938.355 (6) (d) that are authorized under
par. (cm) for a violation or if before the violation the juvenile has acknowledged in writing that he or she has read, or has had read to him or her, those conditions and possible sanctions and that he or she understands those conditions and possible sanctions.
938.17(2)(h)2.
2. A motion requesting the municipal court to impose or petition for a sanction may be brought by the person or agency primarily responsible for the provision of dispositional services, the municipal attorney or the court that entered the dispositional order. Notice of the motion shall be given to the juvenile and the juvenile's parent, guardian or legal custodian.
938.17(2)(h)3.
3. Before imposing any sanction, the court shall hold a hearing, at which the juvenile may present evidence.
938.17(2)(h)4.
4. If the court assigned to exercise jurisdiction under this chapter and
ch. 48 imposes the sanction specified in
s. 938.355 (6) (d) 1. or home detention with monitoring by an electronic monitoring system as specified in
s. 938.355 (6) (d) 3., on a petition described in
subd. 1., that court shall order the municipality of the municipal court that filed the petition to pay to the county the cost of providing the sanction imposed under
s. 938.355 (6) (d) 1. or
3.
938.17(3)
(3) Safety at sporting events. Notwithstanding
sub. (2), courts of criminal or civil jurisdiction have exclusive jurisdiction in proceedings against juveniles under
s. 167.32 or under a local ordinance strictly conforming to
s. 167.32. A juvenile convicted of a violation under
s. 167.32 or under a local ordinance strictly conforming to
s. 167.32 shall be treated as an adult for sentencing purposes.
938.17 History
History: 1995 a. 77,
352,
448.
938.18
938.18
Jurisdiction for criminal proceedings for juveniles 14 or older; waiver hearing. 938.18(1)(a)(a) Subject to
s. 938.183, a juvenile or district attorney may apply to the court to waive its jurisdiction under this chapter in any of the following situations:
938.18(1)(a)2.
2. If the juvenile is alleged to have committed, on or after the juvenile's 14th birthday, a violation, at the request of or for the benefit of a criminal gang, as defined in
s. 939.22 (9), that would constitute a felony under
chs. 939 to
948 or
961 if committed by an adult.
938.18(1)(a)3.
3. If the juvenile is alleged to have violated any state criminal law on or after the juvenile's 15th birthday.
938.18(1)(b)
(b) The judge may also initiate a petition for waiver in any of the situations described in
par. (a) if the judge disqualifies himself or herself from any future proceedings on the case.
938.18(2)
(2) 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 shall contain a brief statement of the facts supporting the request for waiver. The petition for waiver of jurisdiction 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.
938.18(2m)
(2m) The court may designate an agency, as defined in
s. 938.38 (1) (a), to submit a report analyzing the criteria specified in
sub. (5). The agency shall file the report with the court and the court shall cause copies of the report to be given to the juvenile, any parent, guardian or legal custodian of the juvenile and counsel at least 3 days before the hearing. The court may rely on facts stated in the report in making its findings with respect to the criteria under
sub. (5).
938.18(3)(a)(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 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
s. 938.293.
938.18(3)(b)
(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.
938.18(3)(c)
(c) The juvenile does not have the right to a jury at a hearing under this section.
938.18(4)(a)(a) The court shall determine whether the matter has prosecutive merit before proceeding to determine if it should waive jurisdiction.
938.18(4)(b)
(b) If a petition for waiver of jurisdiction is contested, the court, after taking relevant 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).
938.18(4)(c)
(c) If a petition for waiver of jurisdiction is uncontested, the court shall inquire into the capacity of the juvenile to knowingly, intelligently and voluntarily decide not to contest the waiver of jurisdiction. If the court is satisfied that the decision not to contest the waiver of jurisdiction is knowingly, intelligently and voluntarily made, no testimony need be taken and the court, after considering the petition for waiver of jurisdiction and other relevant evidence in the record before the court, shall base its decision whether to waive jurisdiction on the criteria specified in
sub. (5).
938.18(5)
(5) If prosecutive merit is found, the court shall base its decision whether to waive jurisdiction on the following criteria:
938.18(5)(a)
(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, the juvenile's physical and mental maturity, the juvenile's pattern of living, prior offenses, prior treatment history and apparent potential for responding to future treatment.
938.18(5)(b)
(b) The type and seriousness of the offense, including whether it was against persons or property, the extent to which it was committed in a violent, aggressive, premeditated or wilful manner, and its prosecutive merit.
938.18(5)(c)
(c) The adequacy and suitability of facilities, services and procedures available for treatment of the juvenile and protection of the public within the juvenile justice system, and, where applicable, the mental health system and the suitability of the juvenile for placement in the serious juvenile offender program under
s. 938.538 or the adult intensive sanctions program under
s. 301.048.
938.18(5)(d)
(d) The desirability of trial and disposition of the entire offense in one court if the juvenile was allegedly associated in the offense with persons who will be charged with a crime in circuit court.
938.18(6)
(6) 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 is established by clear and convincing evidence that it would be 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 court of criminal jurisdiction thereafter has exclusive jurisdiction.
938.18(7)
(7) If the juvenile absconds and does not appear at the waiver hearing, the court may proceed with the waiver hearing as provided in
subs. (4) to
(6) in the juvenile's absence. If the waiver is granted, the juvenile may contest that waiver when the juvenile is apprehended by showing the court of criminal jurisdiction good cause for his or her failure to appear. If the court of criminal jurisdiction finds good cause for the juvenile's failure to appear, that court shall transfer jurisdiction to the court assigned to exercise jurisdiction under this chapter and
ch. 48 for the purpose of holding the waiver hearing.
938.18(8)
(8) When waiver is granted, the juvenile, if held in secure custody, shall be transferred to an appropriate officer or adult facility and shall be eligible for bail in accordance with
chs. 968 and
969.
938.18(9)
(9) If waiver is granted,
sub. (1) does not restrict the authority of the district attorney to charge the offense he or she deems is appropriate and does not restrict the authority of any court or jury to convict the juvenile in regard to any offense.
938.18 History
History: 1995 a. 77,
352,
448.
938.18 Annotation
Since juveniles receive the same Miranda warnings as adults, a confession made by a juvenile during custodial interrogation prior to his waiver into adult court is admissible in later adult proceedings. Theriault v. State, 66 W (2d) 33, 223 NW (2d) 850.
938.18 Annotation
State may not delay charging child in order to avoid juvenile court jurisdiction. State v. Becker, 74 W (2d) 675, 247 NW (2d) 495.
938.18 Annotation
Order waiving jurisdiction over juvenile is appealable under 808.03 (2). State ex rel. A. E. v. Green Lake County Cir. Ct. 94 W (2d) 98, 288 NW (2d) 125 (1980).
938.18 Annotation
Motion to suppress evidence on ground of inadmissibility at trial is premature when brought at waiver hearing. In Interest of D.E.D. 101 W (2d) 193, 304 NW (2d) 133 (Ct. App. 1981).
938.18 Annotation
Even though juvenile does not contest waiver, (5) requires district attorney to present testimony on issue of waiver. Determination of prosecutive merit under (4) discussed. In Interest of T.R.B. 109 W (2d) 179, 325 NW (2d) 329 (1982).
938.18 Annotation
Involuntary confession, if reliable and trustworthy, may be used to determine prosecutive merit; it would not be admissible at trial. If juvenile does not meet burden of showing unreliability of confession, no evidentiary hearing is required. In Interest of J.G. 119 W (2d) 748, 350 NW (2d) 668 (1984).
938.18 Annotation
In certain contested cases, state may establish prosecutive merit on basis of reliable information provided in delinquency and waiver petitions alone. In Interest of P.A.K. 119 W (2d) 871, 350 NW (2d) 677 (1984).
938.18 Annotation
Trial court did not abuse discretion in declining to convene in camera proceedings to determine whether state had complied with discovery orders. In Interest of G.B.K. 126 W (2d) 253, 376 NW (2d) 385 (Ct. App. 1985).
938.18 Annotation
Waiver petition under (2) which referred only to facts of underlying charge and not to facts to be presented under (5) was insufficient. In Interest of J.V.R. 127 W (2d) 192, 378 NW (2d) 266 (1985).
938.18 Annotation
Court may consider waiver investigation report containing information not included in waiver petition. In Interest of S. N. 139 W (2d) 270, 407 NW (2d) 562 (Ct. App. 1987).
938.18 Annotation
Juvenile court improperly denied waiver based on belief that adult court would improperly sentence juvenile. In Interest of C. W. 142 W (2d) 763, 419 NW (2d) 327 (Ct. App. 1987).
938.18 Annotation
If state shows that delay in charging offense committed by adult defendant while still a juvenile was not with manipulative intent, due process does not require dismissal. State v. Montgomery, 148 W (2d) 593, 436 NW (2d) 303 (1989).
938.18 Annotation
Sub. (9) permits prosecution to charge offense related to homicide after waiver under (1) is completed. State v. Karow, 154 W (2d) 375, 453 NW (2d) 181 (Ct. App. 1990).
938.18 Annotation
By pleading guilty to criminal charges, defendant waives right to challenge waiver proceeding. State v. Kraemer, 156 W (2d) 761, 457 NW (2d) 562 (Ct. App. 1990).
938.18 Annotation
See note to 48.12 citing Interest of K.A.P. 159 W (2d) 384, 464 NW (2d) 106 (Ct. App. 1990).
938.18 Annotation
See note to 48.01 citing In Interest of B.B., 166 W (2d) 202, 479 W (2d) 205 (Ct. App. 1991).
938.18 Annotation
Delinquency and waiver petitions must both be filed to bring about a waiver hearing; trial court may not proceed with waiver hearing where time limits under s. 48.25 for delinquency petition are not complied with. In Interest of Michael J. L. 174 W (2d) 131, 496 NW (2d) 758 (Ct. App. 1993), 98.
938.18 Annotation
Department has exclusive authority to detain and release child who has violated conditions of probation imposed by court of criminal jurisdiction. Child can be held in adult section of county jail.
72 Atty. Gen. 104.
938.18 Annotation
Person who commits crime while under 18, but is charged after attaining age of 18, is not constitutionally entitled to juvenile jurisdiction where delay in filing charges was not result of deliberate effort to avoid juvenile jurisdiction or of prosecutorial negligence. Bendler v. Percy, 481 F Supp. 813 (1979).
938.18 Annotation
Juvenile waiver statute; delegation of legislative power to judiciary. Zekas, 1973 WLR 259.
938.18 Annotation
Wisconsin's new juvenile waiver statute: when should we wave goodbye to juvenile court protections? 1979 WLR 190.
938.18 Note
NOTE: The above annotations cited to s. 48.18, the predecessor statute to s. 938.18.
938.183
938.183
Original adult court jurisdiction for criminal proceedings. 938.183(1)(1) Notwithstanding
ss. 938.12 (1) and
938.18, courts of criminal jurisdiction have exclusive original jurisdiction over all of the following:
938.183(1)(a)
(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 correctional facility, a secure detention facility or a secured child caring institution or who has been adjudicated delinquent and who is alleged to have committed a violation of
s. 940.20 (2m).
