Miller v. Quatsoe, Civ. A. No. 70-C-454.

• Decision Date: 17 October 1972
• Docket Number: Civ. A. No. 70-C-454.
• Citation: 348 F. Supp. 764
• Parties: William James MILLER, Petitioner, v. Donald L. QUATSOE, Warden, Wisconsin State Reformatory, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

348 F. Supp. 764

William James MILLER, Petitioner, v. Donald L. QUATSOE, Warden, Wisconsin State Reformatory, Respondent.

Civ. A. No. 70-C-454.

United States District Court, E. D. Wisconsin.

October 17, 1972.

Alan Marcuvitz, Milwaukee, Wis., for petitioner.

Robert D. Martinson, Asst. Atty. Gen., and E. Michael McCann, Dist. Atty., Milwaukee, Wis., for respondent.

OPINION AND ORDER

REYNOLDS, Chief Judge.

This is a petition for writ of habeas corpus on the grounds that petitioner was tried for the crime of battery to a peace officer, Wis.Stats. § 940.205 as an adult in violation of his Fourteenth Amendment rights. A similar petition was presented to the Wisconsin Supreme Court, that court denying relief in an unpublished per curiam opinion. Since the bringing of this petition, petitioner has been unconditionally released from prison. It is clear, however, in light of permanent disabilities which attach to a criminal conviction in Wisconsin, that this petition is not moot. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L.Ed.2d 554 (1968). I find that a writ of habeas corpus should issue unless respondent takes appropriate steps to make the conviction challenged herein valid.

On April 18, 1968, petitioner William James Miller was arrested for armed robbery. As he was then age 17, being born on September 10, 1950, under Wisconsin law he came under juvenile court jurisdiction. This jurisdiction, however, was waived by the juvenile court, and upon trial in adult court he was found guilty and sentenced to an indeterminate term of not more then twelve years. Subsequently Mr. Miller challenged this conviction in this court, petitioning for a writ of habeas corpus. I granted this petition on the ground that he was denied certain constitutional rights in the juvenile waiver proceeding. Miller v. Quatsoe, 332 F.Supp. 1269 (E.D.Wis. 1971).

The instant petition arises out of an incident that took place subsequent to the improper juvenile waiver and while Miller was in jail awaiting trial for armed robbery. Specifically, on August 23, 1968, while incarcerated in the Milwaukee County Jail, Miller stabbed one of his jailers with a ball point pen. The juvenile authorities determined not to commence juvenile proceedings against Miller for this act but rather decided to defer prosecution for a few weeks until his eighteenth birthday so that he could be charged in adult court without a juvenile waiver proceeding. An adult warrant was issued on September 11, 1968, the day after petitioner's eighteenth birthday, and subsequently he was tried and found guilty of battery to a peace officer. Wis.Stats. § 940.205. Convicted, he was sentenced to a term of two years, a term which he has since served.

Under Wisconsin law "`exclusive jurisdiction' is vested in the juvenile court over any child who is alleged to be delinquent because he has `violated any state law' (sec. 48.12(1), Stats.). `Child' is defined as a person under eighteen (sec. 48.02(3)). Only if juvenile jurisdiction is waived as provided in sec. 48.18 can a child charged with a crime against the state be prosecuted in an adult criminal court." Gibson v. State, 47 Wis.2d 810, 815, 177 N.W.2d 912, 914 (1970).

Waiver of a juvenile under Wis. Stats. § 48.18 is only effective with regard to the specific charge alleged, and a juvenile who has been waived over to adult court on one charge is not automatically waived over for trial on a later charge. Rather, waiver must be sought again for "A juvenile court can only waive its jurisdiction with respect to charges of delinquency that are actually before it." Id., at 817, 177 N.W.2d at 915.

The critical time under state law for determining whether a defendant is a "child" for purposes of juvenile court jurisdiction is the defendant's age at the time the criminal complaint is filed. Thus, a crime committed before the eighteenth birthday is properly before an adult court if the defendant is not charged until after his eighteenth birthday. State ex rel. Koopman v. Waukesha Co. Ct. Judges, 38 Wis.2d 492, 157 N.W.2d 623 (1968).

This case is essentially controlled by Miller v. Quatsoe, 332 F.Supp. 1269 (E. D.Wis.1971). In that case I concluded that when a state operates a dual criminal justice system with one set of procedures and penalities for juveniles and another for adults that constitutional safeguards attached to a determination that a juvenile offender...