938.245(2)(a)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.
938.245(2)(a)5.b.
b. In addition to any other employment or duties permitted under
ch. 103 or any rule or order under
ch. 103, a juvenile under 14 years of age who is participating in a restitution project provided by the county or who is performing services for the victim as restitution may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under
ch. 103 or any rule or order under
ch. 103. A juvenile who is participating in a restitution project provided by the county or who is performing services for the victim as restitution is exempt from the permit requirement under
s. 103.70 (1).
938.245(2)(a)5.c.
c. Under this subdivision, a deferred prosecution agreement may not require a juvenile who is under 14 years of age to make more than $250 in restitution or to perform more than 40 total hours of services for the victim as restitution.
938.245(2)(a)6.
6. That the juvenile participate in a supervised work program or other community service work in accordance with
s. 938.34 (5g).
938.245(2)(a)7.
7. 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 intake worker may establish under this subdivision may include, but need not be limited to, a request to a volunteer to provide 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.
938.245(2)(a)8.
8. That the juvenile be placed in a teen court program if all of the following conditions apply:
938.245(2)(a)8.a.
a. The chief judge of the judicial administrative district has approved a teen court program established in the juvenile's county of residence and the intake worker determines that participation in the teen court program will likely benefit the juvenile and the community.
938.245(2)(a)8.b.
b. The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult or a civil law or ordinance violation.
938.245(2)(a)8.c.
c. The juvenile admits to the intake worker, with the juvenile's parent, guardian or legal custodian present, that the juvenile committed the alleged delinquent act or civil law or ordinance violation.
938.245(2)(a)8.d.
d. The juvenile has not successfully completed participation in a teen court program during the 2 years before the date of the alleged delinquent act or civil law or ordinance violation.
938.245(2)(a)9m.
9m. That the juvenile report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center.
Section 938.34 (5g) applies to any community service work performed by a juvenile under this subdivision.
938.245(2)(b)
(b) A deferred prosecution agreement may not include any form of out-of-home placement and may not exceed one year.
938.245(2)(c)
(c) If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under
par. (a) 4., the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.
938.245(2g)
(2g) 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, 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.
938.245(2v)
(2v) 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.
938.245(3)
(3) The obligations imposed under a deferred prosecution agreement and its effective date shall be set forth in writing. The juvenile and a parent, guardian and legal custodian shall receive a copy of the agreement and order, as shall any agency providing services under the agreement.
938.245(4)
(4) 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 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.
938.245(5)
(5) A deferred prosecution agreement may be terminated upon the request of the juvenile, parent, guardian, or legal custodian.
938.245(6)
(6) 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 statements made to the intake worker during the intake inquiry are inadmissible.
938.245(7)(a)(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, the intake worker shall notify the district attorney, corporation counsel or other official under
s. 938.09 of the cancellation and 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 shall grant appropriate relief as provided in
s. 938.315 (3) with respect to any petition which is not filed within the time limit specified in this subsection. Failure to object if a petition is not filed within the time limit specified in this subsection waives that time limit.
938.245(7)(b)
(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 a petition under this paragraph 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.
938.245(8)
(8) 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 petition may be filed or citation issued on the charges that brought about the deferred prosecution agreement nor may the charges be the sole basis for a petition under
s. 48.13,
48.133,
48.14,
938.13 or
938.14.
938.245(9)
(9) The intake worker shall perform his or her responsibilities under this section under general written policies which the judge shall promulgate under
s. 938.06 (1) or
(2).
938.245 Annotation
When a district attorney receives notice of a deferred prosecution agreement from an intake worker under s. 938.24 (5), the 20 days during which the district attorney may terminate the agreement under s. 938.245 (6) begins. When a court orders a deferred prosecution agreement under s. 938.21 (7), the intake worker need not notify the district attorney and nothing triggers a district attorney's authority to terminate the agreement under s. 938.245(6). An order under s. 938.21 (7) dismissing a petition and referring for deferred prosecution does not require district attorney consent. The district attorney may not override the order by filing a new petition with the same charges and facts. State v. Lindsey A.F. 2002 WI App 223,
257 Wis. 2d 650,
653 N.W.2d 116. Affirmed. 2003 WI 63,
262 Wis. 2d 200,
663 N.W.2d 757,
01-0081.
938.25
938.25
Petition: authorization to file. 938.25(1)
(1) 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 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 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.
938.25(2)(a)(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 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. If the case is referred back to intake or the law enforcement agency investigating the case for further investigation, the appropriate agency or person shall complete the investigation within 20 days. If another referral is made to the district attorney, corporation counsel or other appropriate official by intake or 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 upon a showing of good cause under
s. 938.315. If a petition is not filed within the time limitations set forth 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 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.
938.25(2)(b)
(b) In delinquency cases where there has been a case closure or deferred prosecution agreement, the petition shall be filed within 20 days of receipt of the notice of closure or deferred prosecution. Failure to file within 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 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 as soon as possible.
938.25(2g)
(2g) 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 notification or if a tribal official has provided that 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).
938.25(2m)
(2m) 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.
938.25(3)
(3) 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 to order that the petition be filed and a hearing shall be held on the request. The judge may order the filing of the petition on his or her own motion. The matter may not be heard by the judge who orders the filing of a petition.
938.25(4)
(4) Section 939.74 applies to delinquency petitions filed under this chapter.
938.25(5)
(5) A citation issued under
s. 938.17 (2) may serve as the initial pleading and is sufficient to confer the court with jurisdiction over the juvenile when the citation is filed with the court.
938.25(6)
(6) If a proceeding is brought under
s. 938.13, any party to or any governmental or social agency involved in the proceeding may petition the court to issue a temporary restraining order and injunction as provided in
s. 813.122 or
813.125. The court shall follow the procedure under
s. 813.122 or
813.125 except that the court may combine hearings authorized under
s. 813.122 or
813.125 and this chapter, the petitioner for the temporary restraining order and injunction is not subject to the limitations under
s. 813.122 (2) or
813.125 (2) and no fee is required regarding the filing of the petition under
s. 813.122 or
813.125.
938.25 Note
NOTE: 2003 Wis. Act 284, which affected this section, contains extensive explanatory notes.
938.25 Annotation
If the state fails to comply with mandatory filing procedures pursuant to sub. (2) (a), the petition must be dismissed with prejudice. In Interest of C.A.K.,
154 Wis. 2d 612,
453 N.W.2d 897 (1990).
938.25 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 when 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).
938.25 Note
NOTE: The above annotations cite to s. 48.25, the predecessor statute to s. 938.25.
938.25 Annotation
To the extent that sub. (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B.
231 Wis. 2d 688,
605 N.W.2d 598 (Ct. App. 1999)
938.255
938.255
Petition; form and content. 938.255(1)
(1) 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 all of the following:
938.255(1)(a)
(a) The name, birth date and address of the juvenile.
938.255(1)(b)
(b) The names and addresses of the juvenile's parent, guardian, legal custodian or spouse, if any; or if no such person can be identified, the name and address of the nearest relative.
938.255(1)(c)
(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 would result in imminent danger to the juvenile or physical custodian.
938.255(1)(cr)1.1. If the petition is initiating proceedings under
s. 938.12 or
938.13 (12) and all of the following circumstances apply, a statement to that effect:
938.255(1)(cr)1.b.
b. At the time of the alleged delinquent act, the juvenile was under an order of a tribe's court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.
938.255(1)(cr)1.c.
c. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's reservation and any off-reservation trust land of either that tribe or a member of that tribe as a direct consequence of a tribal court order under
subd. 1. b., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.
938.255(1)(cr)2.
2. If the statement under
subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been notified by an official of the tribe that a petition relating to the delinquent act has been or may be filed in tribal court with respect to the alleged delinquent act, a statement to that effect.
938.255(1)(d)
(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.
938.255(1)(e)
(e) If the juvenile is alleged to come within the provisions of
s. 938.13 (4),
(6),
(6m),
(7) or
(14) or
938.14, reliable and credible information which forms the basis of the allegations necessary to invoke the jurisdiction of the court and to provide reasonable notice of the conduct or circumstances to be considered by the court together with a statement that the juvenile is in need of supervision, services, care or rehabilitation.
938.255(1)(f)
(f) If the juvenile is being held in custody outside of his or her home, reliable and credible information showing that continued placement of the juvenile in his or her home would be contrary to the welfare of the juvenile and, unless any of the circumstances specified in
s. 938.355 (2d) (b) 1. to
4. applies, reliable and credible information showing that the person who took the juvenile into custody and the intake worker have made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, and to make it possible for the juvenile to return safely home.
938.255(2)
(2) If any of the facts in
sub. (1) (a) to
(cr) and
(f) are not known or cannot be ascertained by the petitioner, the petition shall so state.
938.255(4)
(4) A copy of the petition shall be given to the juvenile and to the parents, guardian, legal custodian and physical custodian.
938.255 Note
NOTE: 2003 Wis. Act 284, which affected this section, contains extensive explanatory notes.
938.263
938.263
Amendment of petition. 938.263(1)
(1) Except as provided in
s. 938.255 (3), no petition, process or other proceeding may be dismissed or reversed for any error or mistake if the case and the identity of the juvenile named in the petition may be readily understood by the court; and the court may order an amendment curing the defects.
938.263(2)
(2) With reasonable notification to the interested parties and prior to the taking of a plea under
s. 938.30, the petition may be amended at the discretion of the court or person who filed the petition. After the taking of a plea, the court may allow amendment of the petition to conform to the proof if the amendment is not prejudicial to the juvenile.
938.263 History
History: 1995 a. 77.
938.263 Annotation
Sub. (2) did not authorize the trial court to sua sponte and without notice amend a juvenile petition charge to disorderly conduct and make a finding of guilt thereon after finding the juvenile not guilty of battery. The court's action unfairly prejudiced the juvenile's statutory and due process rights. State v. Tawanna H.
223 Wis. 2d 572,
590 N.W.2d 276 (Ct. App. 1998).
938.265
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 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 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.
938.265 History
History: 1997 a. 181.
938.27
938.27
Notice; summons. 938.27(1)(1) After a citation is issued or a petition has been filed relating to facts concerning a situation specified under
s. 938.12,
938.125 or
938.13, unless the parties under
sub. (3) voluntarily appear, the 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.
938.27(2)
(2) Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the court, is necessary.
938.27(3)(a)1.1. 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 be provided to the juvenile and his or her counsel. Where parents entitled to notice have the same place of residence, notice to one shall constitute 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 and may have a copy of the petition attached to it. Thereafter, notice of 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 time notice was given and the person to whom he or she spoke.
938.27(3)(a)1m.
1m. The court shall give a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who is notified of a hearing under
subd. 1. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) who receives a notice of a hearing under
subd. 1. and an opportunity to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.
938.27(3)(a)2.
2. Failure to give notice under
subd. 1. to a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in
s. 48.62 (2) is not given notice of a hearing under
subd. 1., that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.
938.27(3)(b)1.1. Except as provided in
subd. 2., if the petition that was filed relates to facts concerning a situation under
s. 938.13 and if the juvenile is a nonmarital child who is not adopted or whose parents do not subsequently intermarry as provided under
s. 767.60 and if paternity has not been established, the court shall notify, under
s. 938.273, all of the following persons:
938.27(3)(b)1.b.
b. A person alleged to the court to be the father of the juvenile or who may, based on the statements of the mother or other information presented to the court, be the father of the juvenile.
938.27(3)(b)2.
2. A court is not required to provide notice, under
subd. 1., to any person who may be the father of a juvenile conceived as a result of a sexual assault if a physician attests to his or her belief that there was a sexual assault of the juvenile's mother that may have resulted in the juvenile's conception.
938.27(4)(a)
(a) Contain the name of the juvenile, and the nature, location, date and time of the hearing.
938.27(4)(b)
(b) Advise the juvenile of his or her right to legal counsel regardless of ability to pay.
938.27(4m)
(4m) 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 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 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.
938.27(5)
(5) Subject to
sub. (3) (b), the court shall make every reasonable effort to identify and notify any person who has filed a declaration of interest under
s. 48.025 and any person who has been adjudged to be the biological father of the juvenile in a judicial proceeding unless the biological father's rights have been terminated.
