In INTEREST OF DH v. State

251 N.W.2d 196, 76 Wis. 2d 286, 1977 Wisc. LEXIS 1354
CourtWisconsin Supreme Court
DecidedMarch 1, 1977
Docket75-257
StatusPublished
Cited by72 cases

This text of 251 N.W.2d 196 (In INTEREST OF DH v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In INTEREST OF DH v. State, 251 N.W.2d 196, 76 Wis. 2d 286, 1977 Wisc. LEXIS 1354 (Wis. 1977).

Opinions

ABRAHAMSON, J.

The order reviewed in this case was entered by the circuit court affirming an order of the county court waiving juvenile jurisdiction over D. H., a juvenile.

On February 17, 1975, a “Petition for Determination of Status” was filed with the Kenosha County Juvenile Court alleging that D. H. was delinquent in that he had violated secs. 943.32(1) (b) and 939.05, Stats., which define the offense of being a party to the crime of robbery. The Petition for Determination of Status recites that at approximately 7:20 p.m. on February 13, 1975, D. H. and three others, two of whom were then over the [290]*290age of eighteen, drove to Fasulo’s Grocery, located in the .city and county of Kenosha; that D. H. and two of the others entered the store, leaving one person to wait in the car; that D. H. stated to Sam Fasulo, owner of the store, that “my friend has a gun in his pocket, so give me the money;” that Fasulo asked to see the gun, whereupon D. H. stated to Fasulo “Give me your money or I’ll bust you in the mouth, and don’t push any buttons;” and that Fasulo then directed an employee to hand over to D. H. currency contained in the cash register. D. H. took the money, which amounted to $35, and the group then returned to the car. The petition further alleges that D. H.’s date of birth is December 1, 1958, which would make his age at the time of the alleged offense (and the filing of the Petition for Determination of Status) sixteen years and two and one-half months. He turned eighteen on December 1,1976.

A “Petition for Waiver” was also filed on February 17, 1975, alleging that “it would be contrary to the best interests of the child or of the public to dispose of the issues in the juvenile court,” and praying for an order waiving juvenile jurisdiction over D. H. and referring the matter to the district attorney for appropriate further proceedings. Other than the phrase just quoted the petition for waiver does not specify any reasons why waiver of jurisdiction was being sought.

On that same day, February 17, 1975, a hearing was held on the waiver petition before the juvenile court. Present were an assistant district attorney, D. H., D. H.’s mother, and D. H.’s court-appointed counsel. The assistant district attorney and counsel for D. H. argued very briefly their respective positions on the waiver question, but no testimony was taken. D. H.’s counsel informed the court that he had been informed that D. H. had no prior criminal or juvenile record and that he was unemployed. D. H.’s mother told the court that D. H. had dropped out of school, apparently only a short time before the alleged robbery, and that he spent most of his time at home.

[291]*291The juvenile court ruled from the bench that it would grant the petition to waive jurisdiction over D. H. The court mentioned the following factors in announcing its decision:

(1) D. H. was not going to school and was unemployed.

(2) The offense charged was a serious one, carrying a maximum possible sentence of ten years’ imprisonment.

(8) D. H. allegedly acted in concert with adults over the age of eighteen.

(4) The time remaining for juvenile jurisdiction, approximately one year and ten months, was insufficient to be commensurate with the conduct alleged in the Petition for Determination of Status which had “all of the characteristics of adult criminal conduct,” in the court’s view.

The court stated that for the purpose at hand it was required to assume that the allegations of the petition setting forth the crime were true.

A written “Order Granting Petition for Waiver” was entered on February 17, 1975, in which the court found that “the best interests of the minor (and/or of the public) will be best served for the court to waive jurisdiction,” and set forth as the basis for this finding factors (1) through (3) listed above and “other reasons more specifically stated on the record.” This order was appealed to the circuit court pursuant to sec. 48.47, Stats. On March 14, 1975, the circuit court rendered its memorandum decision affirming the order waiving juvenile jurisdiction over D. H., and on March 18, 1975, an order of affirmance was entered. This is the order presently here for review.

Three issues are presented:

1. This court’s jurisdiction over the appeal:

A. Was the order of the juvenile court waiving jurisdiction over D. H. appealable to the circuit court under sec. 48.47, Stats.?; and

[292]*292B. Was the circuit court’s order affirming the county court’s order appealable to this court?

2. The procedure at the waiver hearing:

A. Did the petition filed with the juvenile court seeking waiver of juvenile jurisdiction allege sufficient facts to support such a request and to comply with due process of law?; and

B. Was the prosecutor required to adduce competent, admissible evidence at the waiver hearing to support the petition for waiver of juvenile jurisdiction?

3. The merits of the decision on waiver: Did the juvenile court abuse its discretion in waiving its jurisdiction?

JURISDICTION

The transfer of the juvenile to the adult criminal process is a grave step, and there should be a way for the juvenile to .obtain immediate review of the decision.

In Wisconsin the order waiving juvenile jurisdiction is entered pursuant to see. 48.18, Stats.:

< “. • • Except as provided in s. 48.17, the criminal and civil courts shall have jurisdiction over a child 16 or older who is alleged to have violated a state law or a county or municipal ordinance only if the juvenile court judge deems it contrary to the best interest of such child or of the public to hear the case and enters an order waiving his jurisdiction and referring the matter to the district attorney, corporation counsel or city attorney, for appropriate proceedings in a criminal or civil court. In that event, the district attorney, corporation counsel or city attorney of the county or municipality shall proceed with the case in the same manner as though the jurisdiction of the juvenile court had never attached.”

The right to appeal from proceedings in the juvenile court is governed by sec. 48.47, Stats.:

“. . . Any person aggrieved by an adjudication of the county court under this chapter and directly affected thereby has the right to appeal to the circuit court of [293]*293the same county within 40 days of the entry of the order in the manner in which appeals are taken from judgments in civil actions. No undertaking shall be required on such appeal. The order of the county court shall stand, pending the determination of the appeal, but the circuit court may upon application stay such order. The appeal shall be on the record which the county court shall make and keep of the entire proceedings. Appeal from an order granting or denying an adoption under s. 879.27 and from any county court review under s. 48.64(4) (c) shall be to the supreme court.”

An order entered in waiver proceedings might fit within sec. 48.47, Stats., as an order of the juvenile court, rather than the judge, and might fit within the general concept of adjudication, but not altogether comfortably. And, although we might further hold that the circuit court’s order was appealable to this court under sec. 274.33, Stats, (now Renumbered sec.

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Bluebook (online)
251 N.W.2d 196, 76 Wis. 2d 286, 1977 Wisc. LEXIS 1354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-interest-of-dh-v-state-wis-1977.