D. H. v. State
| Decision Date | 01 March 1977 |
| Docket Number | No. 75-257,75-257 |
| Parties | In the Interest of D. H., alleged delinquent child under 18 years of age. D. H., Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
James H. McDermott, Asst. Atty. Gen., for defendant in error; Bronson C. La Follette, Atty. Gen., on brief.
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 age 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.
The 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.
(3) 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 Three issues are presented:
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.
A. Was the order of the juvenile court waiving jurisdiction over D.H. appealable to the circuit court under sec. 48.47, Stats.?; and
B. Was the circuit court's order affirming the county court's order appealable to this court?
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?
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 sec. 48.18, Stats.:
The right to appeal from proceedings in the juvenile court is governed by sec. 48.47, Stats.:
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. 817.33, Stats.), this appellate route is not an adequate remedy. In order for a child to be waived from juvenile to adult court he must have attained the age of sixteen. Sec. 48.18, Stats. Thus in waiver situations, we are dealing with children who are between the ages of sixteen and eighteen. If all the steps for an appeal to this court are complied with, it is likely that from the time of the determination of waiver until this court's hearing of the case, at least two years will elapse. In this case the alleged offense took place This court has reviewed juvenile waiver proceedings on review of a subsequent criminal conviction. Mikulovsky v. State, 54 Wis.2d 699, 196 N.W.2d 748 (1972). However, this remedy also is unacceptable due to the delays which are at present inevitable in the appellate process, and for the additional reason that once the child has been subject to trial as an adult, the confidentiality associated with juvenile proceedings has been irreparably lost. See State ex rel. Koopman v. County Court, 38 Wis.2d 492, 157 N.W.2d 623 (1968).
on February 13, 1975; the waiver was ordered on February 17, 1975; the circuit court decision on waiver was made on March 14, 1975. The case was argued in this court on December 2, 1976. D.H. was sixteen years, two and one-half months old when the alleged offense was committed and when he was first brought to juvenile court. This case moved along promptly on the over-crowded appellate docket. Yet D.H. was eighteen years of age on December 1, 1976, the day before the case was argued here. Thus if [76 Wis.2d 294] this court would find the waiver improper, D.H. is now over eighteen years of age.
We therefore believe that even if we could find that the statutes provide an appeal via secs. 48.47 and 274.33, this appeal route is not adequate under present circumstances. Review in cases where the juvenile court has waived jurisdiction must be speedy and efficient. Legislation could establish the necessary procedures but it does not. "When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts, under the Wisconsin Constitution, can fashion an adequate remedy." 1
In order to expedite court processes and to further justice, we fashion the following procedure to be followed (until the legislature...
To continue reading
Request your trial
-
Complaint Against Grady
...204 Wis. 501, 503-04, 236 N.W. 717 (1931).5 See also Strange v. Harwood, 172 Wis. 24, 27-28, 177 N.W. 862 (1920); D.H. v. State, 76 Wis.2d 286, 294, 251 N.W.2d 196 (1977).6 Secs. 3(1) and 4(3) of article VII add no new power to this court. The language relating to administrative power was a......
-
State Of Wis. v. Henley, 2008AP697-CR.
...including in appropriate situations fashioning relief where no adequate remedy exists. Wis. Const. art. I. § 9; see D.H. v. State, 76 Wis.2d 286, 294, 251 N.W.2d 196 (1977); but see Aicher ex rel. LaBarge v. Wis. Patients Comp. Fund, 2000 WI 98, ¶ 43, 237 Wis.2d 99, 613 N.W.2d 849 (noting t......
-
Wardell v. McMillan
...from the record and a conclusion based on a logical rationale founded upon proper legal standards. See also D.H. v. State, 76 Wis.2d 286, 251 N.W.2d 196, 208 (1977). With such dependency on the facts for exercised discretion, Rickaby v. Wisconsin Dept. of Health & Social Services, 98 Wis.2d......
-
Thomas v. Mallett
...conferred on the court the ability to create an adequate remedy when one did not exist. Id. at 182 (citing D.H. v. State, 76 Wis. 2d 286, 294, 251 N.W.2d 196 (1977)). Similarly, this court noted [i]nherent in the common law is a dynamic principle which allows it to grow and to tailor itself......