2010 Wisconsin Code
Chapter 938. Juvenile justice code.
938.18 Jurisdiction for criminal proceedings for juveniles 14 or older; waiver hearing.

938.18

938.18 Jurisdiction for criminal proceedings for juveniles 14 or older; waiver hearing.

938.18(1)

(1) Waiver of juvenile court jurisdiction; conditions for. Subject to s. 938.183, a petition requesting the court to waive its jurisdiction under this chapter may be filed if the juvenile meets any of the following conditions:

938.18(1)(a)

(a) The juvenile is alleged to have violated s. 940.03, 940.06, 940.225 (1) or (2), 940.305, 940.31, 943.10 (2), 943.32 (2), 943.87 or 961.41 (1) on or after the juvenile's 14th birthday.

938.18(1)(b)

(b) The juvenile is alleged to have committed a violation on or after the juvenile's 14th birthday at the request of or for the benefit of a criminal gang, as defined in s. 939.22 (9), that would constitute a felony under chs. 939 to 948 or 961 if committed by an adult.

938.18(1)(c)

(c) The juvenile is alleged to have violated any state criminal law on or after the juvenile's 15th birthday.

938.18(2)

(2) Petition. The petition for waiver of jurisdiction may be filed by the district attorney or the juvenile or may be initiated by the court and shall contain a brief statement of the facts supporting the request for waiver. The petition for waiver of jurisdiction shall be accompanied by or filed after the filing of a petition alleging delinquency and shall be filed prior to the plea hearing, except that if the juvenile denies the facts of the petition and becomes 17 years of age before an adjudication, the petition for waiver of jurisdiction may be filed at any time prior to the adjudication. If the court initiates the petition for waiver of jurisdiction, the judge shall disqualify himself or herself from any future proceedings on the case.

938.18(2m)

(2m) Agency report. The court may designate an agency, as defined in s. 938.38 (1) (a), to submit a report analyzing the criteria specified in sub. (5). The agency shall file the report with the court and the court shall cause copies of the report to be given to the juvenile, any parent, guardian or legal custodian of the juvenile and counsel at least 3 days before the hearing. The court may rely on facts stated in the report in making its findings with respect to the criteria under sub. (5).

938.18(3)

(3) Rights of juvenile. All of the following apply at a waiver hearing under this section:

938.18(3)(a)

(a) The juvenile shall be represented by counsel. Written notice of the time, place, and purpose of the hearing shall be given to the juvenile, any parent, guardian, or legal custodian, and counsel at least 3 days prior to the hearing. The notice shall contain a statement of the requirements of s. 938.29 (2) with regard to substitution of the judge. If parents entitled to notice have the same address, notice to one constitutes notice to the other. Counsel for the juvenile shall have access to the social records and other reports under s. 938.293.

938.18(3)(b)

(b) The juvenile has the right to present testimony on his or her own behalf including expert testimony and has the right to cross-examine witnesses.

938.18(3)(c)

(c) The juvenile does not have the right to a jury.

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 - ANNOT.

History: 1995 a. 77, 352, 448; 1997 a. 35; 2005 a. 212, 344; 2007 a. 97.

938.18 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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

938.18 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

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 - ANNOT.

Juvenile waiver statute; delegation of legislative power to judiciary. Zekas, 1973 WLR 259.

938.18 - ANNOT.

Wisconsin's new juvenile waiver statute: when should we wave goodbye to juvenile court protections? 1979 WLR 190.

938.18 - ANNOT.

NOTE: The above annotations cite to s. 48.18, the predecessor statute to s. 938.18.

938.18 - ANNOT.

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, 00-0697.

938.18 - ANNOT.

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.