2017 Wisconsin Statutes & Annotations
Chapter 938. Juvenile justice code.
938.25 Petition: authorization to file.

Universal Citation: WI Stat § 938.25 (2017)

938.25 Petition: authorization to file.

(1)Requirements; who may file. 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. The district attorney shall prepare, sign, and file a petition under s. 938.12. The district attorney, corporation counsel, or other appropriate official specified under s. 938.09 may file a petition 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.

(2)Time periods; referral back.

(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 to 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 after the date of the referral. If the case is referred back to intake or to the law enforcement agency investigating the case for further investigation, the appropriate agency or person shall complete the investigation within 20 days after the date of the referral. If another referral is made to the district attorney, corporation counsel, or other appropriate official by intake or by the law enforcement agency investigating the case, it shall be considered a new referral to which the time limits of this subsection apply. The time periods in this paragraph may only be extended by a court upon a showing of good cause under s. 938.315. If a petition is not filed within the time periods in this paragraph 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 that is not filed within the applicable time period in this paragraph. Failure to object to the fact that a petition is not filed within the applicable time period in this paragraph waives any challenge to the court's competency to act on the petition.

(b) In delinquency cases in which there has been a case closure or deferred prosecution agreement, the petition shall be filed within 20 days after receipt of the notice of the closure or agreement. Failure to file within those 20 days invalidates the petition and affirms the case closure or 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 period specified in this paragraph and that failure to object if a petition is not filed within that time period waives any challenge to the court's competency to act on the petition. If a petition is filed within those 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 of the filing as soon as possible.

(2g)Indian juvenile; consultation with tribal court. 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 the notification or if a tribal official has provided the 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).

(2m)Notice to victims if no petition filed. 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 the known victims of the juvenile's act that a petition will not be filed against the juvenile at that time.

(3)Court order for filing of petition. If the district attorney, corporation counsel, or other appropriate official under s. 938.09 refuses to file a petition, any person may request the court to order that the petition be filed and a hearing shall be held on the request. The court may order the filing of the petition on its own motion. The matter may not be heard by the court that orders the filing of a petition.

(4)Time period for prosecution. Section 939.74 applies to delinquency petitions filed under this chapter.

(5)Citation as initial pleading. 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.

(6)Temporary restraining order and injunction. 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) (a) or 813.125 (2) and no fee is required regarding the filing of the petition under s. 813.122 or 813.125.

History: 1995 a. 77, 352; 1997 a. 35, 181; 2003 a. 284; 2005 a. 344; 2007 a. 199; 2009 a. 94; 2013 a. 321.

NOTE: 2003 Wis. Act 284 contains explanatory notes.

“Good cause" under sub. (2) (a) is defined. In Interest of F.E.W. 143 Wis. 2d 856, 422 N.W.2d 893 (Ct. App. 1988).

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).

NOTE: The above annotations cite to s. 48.25, the predecessor statute to s. 938.25.

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), 98-0229.

Disclaimer: These codes may not be the most recent version. Wisconsin may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.