938.18 Annotation
A motion to suppress evidence on the ground of inadmissibility at trial is premature when brought at a waiver hearing. In Interest of D.E.D.
101 Wis. 2d 193,
304 N.W.2d 133 (Ct. App. 1981).
938.18 Annotation
Even though a juvenile does not contest waiver, sub. (5) requires the state to present testimony on the issue of waiver. The determination of prosecutive merit under sub. (4) is discussed. In Interest of T.R.B.
109 Wis. 2d 179,
325 N.W.2d 329 (1982).
938.18 Annotation
An involuntary confession, if reliable and trustworthy, may be used to determine prosecutive merit; it would not be admissible at trial. If a juvenile does not meet the burden of showing unreliability of the confession, no evidentiary hearing is required. In Interest of J.G.
119 Wis. 2d 748,
350 N.W.2d 668 (1984).
938.18 Annotation
In certain contested cases, the state may establish prosecutive merit on the basis of reliable information provided in delinquency and waiver petitions alone. In Interest of P.A.K.
119 Wis. 2d 871,
350 N.W.2d 677 (1984).
938.18 Annotation
The trial court did not abuse its discretion in declining to convene in camera proceedings to determine whether the state had complied with discovery orders. In Interest of G.B.K.
126 Wis. 2d 253,
376 N.W.2d 385 (Ct. App. 1985).
938.18 Annotation
A waiver petition under sub. (2) that referred only to facts of the underlying charge and not to facts to be presented under sub. (5) was insufficient. In Interest of J.V.R.
127 Wis. 2d 192,
378 N.W.2d 266 (1985).
938.18 Annotation
The court may consider a waiver investigation report containing information not included in a waiver petition. In Interest of S. N.
139 Wis. 2d 270,
407 N.W.2d 562 (Ct. App. 1987).
938.18 Annotation
A juvenile court improperly denied a waiver based on the belief that the adult court would improperly sentence the juvenile. In Interest of C. W.
142 Wis. 2d 763,
419 N.W.2d 327 (Ct. App. 1987).
938.18 Annotation
If the state shows that delay in charging an offense committed by an adult defendant while still a juvenile was not with manipulative intent, due process does not require dismissal. State v. Montgomery,
148 Wis. 2d 593,
436 N.W.2d 303 (1989).
938.18 Annotation
Sub. (9) permits the state to charge an offense related to a homicide after waiver under sub. (1) is completed. State v. Karow,
154 Wis. 2d 375,
453 N.W.2d 181 (Ct. App. 1990).
938.18 Annotation
By pleading guilty to criminal charges, a defendant waives the right to challenge a waiver proceeding. State v. Kraemer,
156 Wis. 2d 761,
457 N.W.2d 562 (Ct. App. 1990).
938.18 Annotation
When a juvenile turns 18 during the pendency of proceedings, the filing of a waiver petition under s. 48.18 prior to a plea hearing is not required for waiver of jurisdiction under s. 48.12 (2). Interest of K.A.P.
159 Wis. 2d 384,
464 N.W.2d 106 (Ct. App. 1990).
938.18 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 if 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).
938.18 Annotation
A hearing to determine whether the state improperly delayed filing criminal charges to avoid juvenile jurisdiction addresses a potential constitutional violation, not the court's subject matter jurisdiction, and is waived if not requested prior to the entry of a guilty plea. State v. Schroeder,
224 Wis. 2d 706,
593 N.W.2d 76 (Ct. App. 1999).
938.18 Annotation
The department has exclusive authority to detain and release a child who has violated conditions of probation imposed by a court of criminal jurisdiction. A child can be held in an adult section of a county jail.
72 Atty. Gen. 104.
938.18 Annotation
A person who commits a crime while under age 18, but is charged after attaining age of 18, is not constitutionally entitled to juvenile jurisdiction where delay in filing the charges was not the result of a 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 cite to s. 48.18, the predecessor statute to s. 938.18.
938.18 Annotation
Sub. (2) allows waiver into adult court in certain cases although the conditions of sub. (1) are not met. When a person becomes 17 years old and adjudication has not been accomplished because of of some unlawful action by the person, waiver into adult court is appropriate. Interest of Pablo R. 2000 WI App 242,
239 Wis. 2d 479,
620 N.W.2d 423.
938.18 Annotation
After the filing of a criminal complaint and the criminal court's assumption of jurisdiction, so long as the criminal court retains jurisdiction the juvenile court may not reconsider its waiver order under sub. (6). The juvenile court retains jurisdiction and may reconsider its waiver order until a criminal complaint is filed. A juvenile may seek review of a waiver order after commencement of criminal proceedings by seeking an interlocutory appeal or by filing a motion asking the criminal court to relinquish jurisdiction. State v. Vairin M. 2002 WI 96,
255 Wis. 2d 137,
647 N.W.2d 208.
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, a secured child caring institution or a secured group home or who has been adjudicated delinquent and who is alleged to have committed a violation of
s. 940.20 (2m).
938.183(1)(am)
(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.
938.183(1)(ar)
(ar) A juvenile specified in
par. (a) or
(am) who is alleged to have attempted or committed a violation of any state criminal law in addition to the violation alleged under
par. (a) or
(am) if the violation alleged under this paragraph and the violation alleged under
par. (a) or
(am) may be joined under
s. 971.12 (1).
938.183(1)(b)
(b) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction under s.
48.18, 1993 stats., or
s. 938.18 by the court assigned to exercise jurisdiction under this chapter and
ch. 48 or if the court assigned to exercise jurisdiction under this chapter and
ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal proceedings on that previous violation are still pending.
938.183(1)(c)
(c) A juvenile who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation over which the court of criminal jurisdiction had original jurisdiction under this section or if proceedings on a previous violation over which the court of criminal jurisdiction has original jurisdiction under this section are still pending.
938.183(1m)
(1m) 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:
938.183(1m)(a)
(a) If the juvenile is under 15 years of age, the juvenile may be held in secure custody only in a secure detention facility or in the juvenile portion of a county jail.
938.183(1m)(b)
(b) If a court of criminal jurisdiction transfers jurisdiction under
s. 970.032 or
971.31 (13) to a court assigned to exercise jurisdiction under this chapter and
ch. 48, the juvenile is subject to the procedures and dispositions specified in
subch. IV to
VI.
938.183(1m)(c)
(c) If the juvenile is found to have committed a lesser offense than the offense alleged under
sub. (1) (a),
(am),
(ar),
(b) or
(c) or is found to have committed the offense alleged under
sub. (1) (ar), but not the offense under
sub. (1) (a) or
(am) to which the offense alleged under
sub. (1) (ar) is joined, and if any of the following conditions applies, 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:
938.183(1m)(c)1.
1. 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.
938.183(1m)(c)2.
2. 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.
938.183(2)
(2) Notwithstanding
ss. 938.12 (1) and
938.18, courts of criminal jurisdiction have exclusive original jurisdiction over 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
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.
938.183(3)
(3) When a juvenile who is subject to a criminal penalty under
sub. (1m) or
(2) 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) for an act committed before December 31, 1999, is eligible for parole under
s. 304.06.
938.183(4)
(4) If the juvenile is placed outside the juvenile's home under this section, the order shall contain a designation of the amount of support, if any, to be paid by the juvenile's parent, guardian or trustee, specifying that the support obligation begins on the date of the placement, or a referral to the county child support agency under
s. 59.53 (5) for establishment of child support.
938.183 Annotation
There is no constitutionally protected right that a juvenile's name not be released prior to a reverse waiver hearing under s. 48.183 (now this section). State v. Hazen,
198 Wis. 2d 554,
543 N.W.2d 503 (Ct. App. 1995).
938.185(1)(c)
(c) In the case of a violation of a state law or a county, town or municipal ordinance, the county where the violation occurred, except that in that case the court of the county where the violation occurred may, after the juvenile is adjudged delinquent, transfer the proceeding to the county where the juvenile resides for disposition, if the court of the county of residence agrees to that transfer.
938.185(2)
(2) 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 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.
938.185(3)
(3) Venue for a proceeding under
s. 938.12 or
938.13 (12) based on an alleged violation of
s. 301.45 (6) (a) or
(ag) may be in the juvenile's county of residence at the time that the petition is filed. If the juvenile does not have a county of residence in this state at the time that the petition is filed, or if the juvenile's county of residence is unknown at the time that the petition is filed, venue for the proceeding may be in any of the following counties:
938.185(3)(b)
(b) The county in which the juvenile was adjudicated delinquent or found not responsible by reason of mental disease or defect for the sex offense that requires the juvenile to register under
s. 301.45.
938.185(3)(c)
(c) If the juvenile is required to register under
s. 301.45 (1g) (dt), the county in which the juvenile was found to be a sexually violent person under
ch. 980.
938.185(3)(d)
(d) If the juvenile is required to register only under
s. 301.45 (1g) (f) or
(g), any county in which the juvenile has been a student in this state or has been employed or carrying on a vocation in this state.
938.185 History
History: 1995 a. 77,
352,
440;
1999 a. 89.
938.185 Annotation
Venue becomes an issue only in the event that it is contested. It is not an element of the crime charged. The county where a juvenile "resides" is the county of domicile. The county where a juvenile "is present" is the county where the child is present at the time a petition is filed. State v. Corey J.G.
215 Wis. 2d 394,
572 N.W.2d 845 (1998).
HOLDING A JUVENILE IN CUSTODY
938.19
938.19
Taking a juvenile into custody. 938.19(1)
(1) A juvenile may be taken into custody under any of the following:
938.19(1)(c)
(c) An order of the judge if made upon 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.
938.19(1)(d)
(d) Circumstances in which a law enforcement officer believes on reasonable grounds that any of the following conditions exists:
938.19(1)(d)1.
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.
938.19(1)(d)2.
2. A capias or a warrant for the juvenile's apprehension has been issued in another state.
938.19(1)(d)3.
3. The juvenile is committing or has committed an act which is a violation of a state or federal criminal law.
938.19(1)(d)4.
4. The juvenile has run away from his or her parents, guardian or legal or physical custodian.
938.19(1)(d)5.
5. The juvenile is suffering from illness or injury or is in immediate danger from his or her surroundings and removal from those surroundings is necessary.
938.19(1)(d)6.
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 correctional facility or a Type 2 child caring institution, or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534.
938.19(1)(d)7.
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 by an intake worker.
938.19(1)(d)8.
8. The juvenile has violated a civil law or a local ordinance punishable by a forfeiture, except that in that case the juvenile shall be released immediately under
s. 938.20 (2) (ag) or as soon as reasonably possible under
s. 938.20 (2) (b) to
(g).
938.19(1m)
(1m) 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.
938.19(2)
(2) When a juvenile is taken into physical custody as provided in 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.
938.19(3)
(3) Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful.
938.19 History
History: 1995 a. 77;
2001 a. 16.
938.19 Annotation
A juvenile may not be taken into custody under sub. (1) (d) 7. for violating an ordinance that does not impose a forfeiture although a forfeiture may be imposed under s. 48.343 (2) (now 938.43). In Interest of J.F.F.
164 Wis. 2d 10,
473 N.W.2d 546 (Ct. App. 1991).
938.19 Note
NOTE: The above annotation cites to s. 48.19, the predecessor statute to s. 938.19.
938.20
938.20
Release or delivery from custody. 938.20(2)(ag)(ag) Except as provided in
pars. (b) to
(g), a person taking a juvenile into custody shall make every effort to release the juvenile immediately to the juvenile's parent, guardian or legal custodian.
938.20(2)(b)
(b) If the juvenile's parent, guardian or legal custodian is unavailable, unwilling or unable to provide supervision for the juvenile, the person who took the juvenile into custody may release the juvenile to a responsible adult after counseling or warning the juvenile as may be appropriate.
938.20(2)(c)
(c) If the juvenile is 15 years of age or older, the person who took the juvenile into custody may release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.
938.20(2)(cm)
(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 correctional facility or a Type 2 child caring institution, 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.
938.20(2)(d)
(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.
938.20(2)(e)
(e) If a juvenile is taken into custody under
s. 938.19 (1) (d) 10., the law enforcement officer who took the juvenile into custody may release the juvenile under
par. (ag) or
(b) or, if the school board of the school district in which the juvenile resides has established a youth service center under
s. 118.16 (4) (e), may deliver that juvenile to that youth service center. If the juvenile is delivered to a youth service center, personnel of the youth service center may release the juvenile to the juvenile's parent, guardian or legal custodian, or release the juvenile to the juvenile's school, after counseling the juvenile as may be appropriate. If the juvenile is released to the juvenile's school, personnel of the youth service center shall immediately notify the juvenile's parent, guardian and legal custodian that the juvenile was taken into custody under
s. 938.19 (1) (d) 10. and released to the juvenile's school.
938.20(2)(f)
(f) If a juvenile is taken into custody under
s. 938.19 (1m), the person who took the juvenile into custody may release the juvenile under
par. (ag),
(b) or
(e) or to the juvenile's school administrator, as defined in
s. 125.09 (2) (a) 3., or a school employee designated by the school administrator. If a juvenile is released to a school administrator or the school administrator's designee under this paragraph, the school administrator or designee shall do all of the following:
938.20(2)(f)1.
1. Immediately notify the juvenile's parent, guardian or legal custodian that the juvenile was taken into custody under
s. 938.19 (1m) and released to the school administrator or his or her designee.
938.20(2)(f)2.
2. Make a determination of whether the juvenile is a child at risk, as defined in
s. 118.153 (1) (a), unless that determination has been made within the current school semester. If a juvenile is determined to be a child at risk under this subdivision, the school administrator shall provide a program for the juvenile according to the plan developed under
s. 118.153 (2) (a).
938.20(2)(f)3.
3. Provide the juvenile and his or her parent or guardian with an opportunity for educational counseling to determine whether a change in the juvenile's program or curriculum, including any of the modifications specified in
s. 118.15 (1) (d), would resolve the juvenile's truancy problem, unless the juvenile and his or her parent or guardian have been provided with an opportunity for educational counseling within the current school semester.
938.20(2)(g)
(g) If a juvenile is taken into custody under
s. 938.19 (1) (d) 10. and is not released under
par. (ag),
(b) or
(e) or if a juvenile is taken into custody under
s. 938.19 (1m) and is not released under
par. (ag),
(b),
(e) or
(f), the person who took the juvenile into custody shall release the juvenile without immediate adult supervision after counseling or warning the juvenile as may be appropriate.
938.20(3)
(3) 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 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 the intake interview is not done in person, the report may be read to the intake worker.
