Chapter 938

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

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

938.18(4)(b) (b) If a petition for waiver of jurisdiction is contested, the district attorney shall present relevant testimony and the court, after taking that testimony 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) Criteria for waiver. 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 of the juvenile, including whether the juvenile has a mental illness or developmental disability, the juvenile’s physical and mental maturity, and the juvenile’s pattern of living, prior treatment history, and apparent potential for responding to future treatment.

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

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

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 the court of criminal jurisdiction.

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

938.18(7) (7) Juvenile who absconds. 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) Transfer to adult facility; bail. 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) Criminal charge. 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; 1997 a. 35; 2005 a. 212, 344; 2007 a. 97.

938.18 Annotation Since juveniles receive the same Miranda warnings as adults, a confession made by a juvenile during custodial interrogation prior to a waiver into adult court was admissible in later adult proceedings. Theriault v. State, 66 Wis. 2d 33, 223 N.W.2d 850 (1974).

938.18 Annotation The state may not delay charging a child in order to avoid juvenile court jurisdiction. State v. Becker, 74 Wis. 2d 675, 247 N.W.2d 495 (1976).

938.18 Annotation An order waiving jurisdiction over a juvenile is appealable under s. 808.03 (2). A.E. v. Green Lake County Circuit Court, 94 Wis. 2d 98, 288 N.W.2d 125 (1980).

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), 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 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.

938.18 Annotation The decision to waive juvenile court jurisdiction under this section is committed to the sound discretion of the juvenile court. An appellate court will reverse a juvenile court’s waiver determination if and only if the record does not reflect a reasonable basis for the determination or a statement of the relevant facts or reasons motivating the determination is not carefully delineated in the record. In this case, the circuit court concluded that waiver into adult court was not justified and provided a statement on the record in support of that conclusion. However, the circuit court’s findings were unclear, and reading the circuit court’s transcript as a whole, it was difficult to infer how the circuit court applied the facts of this case to the statutory criteria provided under sub. (5). The record did not reflect a reasonable basis for denying the state’s waiver petition. State v. X.S., 2022 WI 49, 402 Wis. 2d 481, 976 N.W.2d 425, 21-0419.

938.18 Annotation When engaging in the process of waiving juvenile court jurisdiction, the court first determines under sub. (4) whether the matter has prosecutive merit. The court has equated a determination of prosecutorial merit in this context with a determination of probable cause at a preliminary examination. State v. X.S., 2022 WI 49, 402 Wis. 2d 481, 976 N.W.2d 425, 21-0419.

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 History History: 1995 a. 77, 216, 352; 1997 a. 27, 35, 205, 252, 283; 1999 a. 9, 32; 2001 a. 16; 2005 a. 344; 2007 a. 97; 2015 a. 55.

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.

938.183 Annotation The text of this section does not limit the adult court jurisdiction prescribed in sub. (1) to the individual juvenile court in the specific county where a juvenile was previously waived. Whenever a juvenile court exercising jurisdiction under this chapter has previously waived a juvenile—who is alleged to be in violation of any state law and that juvenile is either convicted or the criminal proceeding is still pending—courts of criminal jurisdiction anywhere in Wisconsin have exclusive original jurisdiction. State v. Hinkle, 2019 WI 96, 389 Wis. 2d 1, 935 N.W.2d 271, 17-1416.

938.183 Annotation Serious Juvenile Offenders: The Need for a Third Sentencing Option In Wisconsin. Snyder. 100 MLR 267 (2016).

938.185 938.185 Venue.

938.185(1) (1) Proceedings generally. Subject to subs. (3) and (4), venue for any proceeding under ss. 938.12, 938.125, 938.13, 938.135, and 938.18 may be in any of the following:

938.185(1)(a) (a) The county where the juvenile resides.

938.185(1)(b) (b) The county where the juvenile is present.

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(2m) (2m) Extended out-of-home care. Venue for a proceeding under s. 938.366 (3) (am) shall be in the county where the most recent order specified in s. 938.366 (1) (a) was issued.

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)(a) (a) Any county in which the juvenile has resided while subject to s. 301.45.

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 History History: 1995 a. 77, 352, 440; 1999 a. 89; 2003 a. 284; 2005 a. 344; 2009 a. 94; 2015 a. 55, 373.

938.185 Note NOTE: 2003 Wis. Act 284 contains explanatory notes.

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.

subch. IV of ch. 938 SUBCHAPTER IV

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)(a) (a) A warrant.

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

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: