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),
98-1420.
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 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,
00-0697.
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,
01-0656.
938.18 Annotation
There is no bright-line rule precluding an agency that under sub. (2m) is preparing a waiver investigation report from communicating directly with the state or the juvenile for purposes of preparing the report. Rather, the agency is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court. However, it may be a better practice for the agency to invite both parties, or neither party, to participate. State v. Tyler T.
2012 WI 52,
341 Wis. 2d 1,
814 N.W.2d 192,
10-0784.
938.183
938.183
Original adult court jurisdiction for criminal proceedings. 938.183(1)(1)
Juveniles under adult court jurisdiction. 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 juvenile correctional facility, a juvenile detention facility, or a secured 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).
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.
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) Criminal penalties and procedures. 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 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 juvenile 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. 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.
938.183(1m)(c)2.
2. 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.
938.183(1m)(c)3.
3. 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, the court of criminal jurisdiction finds that the juvenile 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 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 under
s. 938.34.
938.183(3)
(3) Placement in state prison; parole. When a juvenile who is subject to a criminal penalty under
sub. (1m) or s.
938.183 (2), 2003 stats., attains the age of 17 years, the department of corrections may place the juvenile in a state prison named in
s. 302.01, except that that department may not place any person under the age of 18 years in the correctional institution authorized in
s. 301.16 (1n). A juvenile who is subject to a criminal penalty under
sub. (1m) or under s.
938.183 (2), 2003 stats., for an act committed before December 31, 1999, is eligible for parole under
s. 304.06.
938.183(4)
(4) Child support. 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 s. 938.183]. State v. Hazen,
198 Wis. 2d 554,
543 N.W.2d 503 (Ct. App. 1995),
95-1379.
938.183 Annotation
When a juvenile is charged in adult court with a violation of one of the offenses enumerated in sub. (1), the juvenile is entitled to a preliminary examination under s. 970.032 (1) at which the court must find that there is probable cause to believe that the juvenile has committed the violation of which he or she is accused if the adult court is to retain exclusive original jurisdiction of the juvenile. This means that the court should make a specific finding on the record that there is probable cause to believe the juvenile committed the specific sub. (1) crime charged in the complaint. State v. Toliver,
2014 WI 85,
356 Wis. 2d 642,
851 N.W.2d 251,
12-0393.
938.183 Annotation
If an adult court's determination of probable cause in a preliminary examination under s. 970.032 relates to an unspecified felony and the facts are undisputed, an appellate court may review the record independently to determine whether the court did find probable cause to believe that the juvenile has committed the violation of which he or she is accused. State v. Toliver,
2014 WI 85,
356 Wis. 2d 642,
851 N.W.2d 251,
12-0393.
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) Juvenile subject to dispositional order. Venue for any proceeding under
s. 938.357,
938.363, or
938.365 shall be in the county where the dispositional order was issued, unless prior to the proceeding the court of that county determined that proper venue for the proceeding lies in another county and transferred the case, along with all appropriate records, to that other county.
938.185(3)
(3) Sex offender registry violations. 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(4)
(4) Indian juveniles. Venue for a proceeding under
s. 938.12 or
938.13 (12) based on an allegation that an Indian juvenile has committed a delinquent act may not be in the county specified in
sub. (1) (a), unless that county is specified in
sub. (1) (b) or
(c), if all of the following circumstances apply:
938.185(4)(a)
(a) At the time of the alleged delinquent act the juvenile was under an order of a tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.
938.185(4)(b)
(b) At the time of the alleged delinquent act the juvenile was physically outside the boundaries of the reservation of the Indian tribe of the tribal court and any off-reservation trust land of either that Indian tribe or a member of that Indian tribe as a direct consequence of a tribal court order under
par. (a), 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.
938.185(4)(c)
(c) A petition relating to the delinquent act has been filed in a tribal court that has jurisdiction over the juvenile.
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 395,
572 N.W.2d 845 (1998),
96-3148.
HOLDING A JUVENILE IN CUSTODY
938.19
938.19
Taking a juvenile into custody. 938.19(1)
(1)
Criteria. A juvenile may be taken into custody under any of the following:
938.19(1)(c)
(c) A court order if there is a showing 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 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, community supervision, or aftercare supervision; a condition of the juvenile's placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth; or a condition of the juvenile's participation in the intensive supervision program under
s. 938.534.
Effective date note
NOTE: Subd. 6. is shown as amended eff. 7-1-17, or on the 2nd day after publication of the 2017-19 biennial budget act, whichever is later, by
2015 Wis. Act 55. Prior to that date it reads:
Effective date text
6. The juvenile has violated a condition of court-ordered supervision or aftercare supervision administered by the department of corrections or a county department, a condition of the juvenile's placement in a Type 2 juvenile correctional facility or a Type 2 residential care center for children and youth, 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 of an order for temporary physical custody issued 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) 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.
938.19(2)
(2) Notification of parent, guardian, legal custodian, Indian custodian. When a juvenile is taken into physical custody under this section, the person taking the juvenile into custody shall immediately attempt to notify the parent, guardian, legal custodian, and Indian custodian of the juvenile by the most practical means. The person taking the juvenile into custody shall continue such attempt until the parent, guardian, legal custodian, and Indian 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, legal custodian, and Indian custodian are notified, the intake worker, or another person at his or her direction, shall continue the attempt to notify until the parent, guardian, legal custodian, and Indian custodian of the juvenile are notified.
938.19(3)
(3) Not an arrest. 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 Annotation
A juvenile may not be taken into custody under sub. (1) (d) 8. for violating an ordinance that does not impose a forfeiture although a forfeiture may be imposed under s. 48.343 (2) [now s. 938.343]. 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.
938.195
938.195
Recording custodial interrogations. 938.195(1)(c)
(c) “Place of detention" means a juvenile detention facility, jail, municipal lockup facility, or juvenile correctional facility, or a police or sheriff's office or other building under the control of a law enforcement agency, at which juveniles are held in custody in connection with an investigation of a delinquent act.
938.195(2)(a)(a) A law enforcement agency shall make an audio or audio and visual recording of any custodial interrogation of a juvenile that is conducted at a place of detention unless a condition under
s. 938.31 (3) (c) 1. to
5. applies.
