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COURT OF APPEALS DECISION DATED AND RELEASED March 20, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3412
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
In the Interest of Don
R.K.,
a Person Under the Age
of 18:
STATE OF WISCONSIN,
Petitioner-Respondent,
v.
DON R.K.,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Winnebago County:
ROBERT
A. HAWLEY, Judge. Reversed and cause
remanded with directions.
BROWN, J. Don
R. K. appeals from a waiver of juvenile court jurisdiction. Don contends that the trial court should
have dismissed the State's waiver petition with prejudice for noncompliance
with the procedures and time limits of § 48.25(2)(a), Stats. We hold that
the trial court erred by not dismissing the petitions with prejudice after the
State failed to obtain a good cause extension of the time limits or to include
with its amended petitions a statement of the reasons for the delay in filing. We reverse the trial court’s order waiving
jurisdiction and remand with directions to enter orders of dismissal.
Don was arrested on June
7, 1995, because of his suspected involvement in three burglaries and was
placed in secure detention after the requisite hearing. See § 48.21(1)(a), Stats.
On June 9, the intake worker issued referrals recommending that the
State file delinquency petitions. See
§ 48.24(5), Stats. Five days later, the State timely filed the
delinquency petition and a petition for waiver of juvenile court jurisdiction. See § 48.25(2)(a), Stats.
At the scheduled waiver
hearing on July 5, the State informed the trial court that it was unable to
proceed because the social worker from
the Waushara County Department of Social Services who was to testify to Don's
juvenile record had become ill. At the
State’s request, the trial court granted a temporary adjournment. When the parties reappeared two days later,
the State was still unable to get a witness from Waushara county because the
other social workers were out for the Fourth of July holiday. So the State volunteered to dismiss the case
without prejudice. Don did not object,
but stated that he was not waiving any time limits. The trial court granted the State's motion and Don was
released.
On July 13, six days
after the case was dismissed, the intake worker refiled his referrals, again
recommending that the State file petitions.
The intake worker acted on his own initiative, without a referral from
the State requesting further investigation.
Twenty days later, on August 2, the State refiled its petitions and the
trial court subsequently waived its juvenile court jurisdiction over Don.
On appeal, Don claims
that the State failed to comply with the procedures and time limits of §
48.25(2)(a), Stats.,[1]
when it filed the second petitions. We
are thus presented with a question of statutory interpretation, a question of
law which we review de novo. See Green
County Dep't of Human Servs. v. H.N., 162 Wis.2d 635, 645, 469 N.W.2d
845, 848 (1991).
Don relies on C.A.K.
v. State, 154 Wis.2d. 612, 453 N.W.2d 897 (1990), and argues that the
procedures set forth in § 48.25(2)(a), Stats.,
are mandatory and that the State surrendered its right to proceed against him
when it tried to refile its petitions after volunteering to dismiss the
original case. See C.K.,
154 Wis.2d at 614, 453 N.W.2d at 897-98.
After receiving the intake worker's recommendations, the district
attorney has twenty days to decide how it will proceed. Under § 48.25(2)(a), when the State
fails to meet this twenty-day limit, its petitions must be dismissed. See C.A.K., 154 Wis.2d at 623,
453 N.W.2d at 901.
There are three ways
that the law allows an extension of the twenty-day time limit. Those three avenues are: one, to refer the case back to the juvenile
intake worker for further investigation within the twenty days; two, to seek a
court extension of the time limit upon a showing of good cause; or three, to
allow the twenty-day time limit to run and file an untimely delinquency
petition together with a statement of the reasons for the delay and later
obtain court approval for the delay upon a showing of good cause. Id. at 619, 453 N.W.2d at
899-900. Don submits that the State
failed to follow any one of these options and, therefore, the trial court
should have dismissed the petition with prejudice.[2]
The State argues that
its voluntary dismissal of the case implicitly voided intake’s original
referral recommendations. Since
intake's second set of recommendations were filed within forty days of its original
receipt of information, and the State refiled petitions within twenty days of
these second referrals, the State argues that it has met the procedural
mandates within §§ 48.24(5) and 48.25(2)(a), Stats. In essence,
the State claims that when it asked for a voluntary dismissal, it was entitled
to a complete do over. But if we
accepted this position, the State could use a voluntary dismissal to circumvent
the legislature’s intent “to define and limit the authority of the district
attorney to initiate proceedings against a juvenile beyond the twenty-day time
limitation set forth in [§ 48.25(2)(a), Stats.].” See C.A.K., 154 Wis.2d at 623,
453 N.W.2d at 901-02.
Of course, as we
explained above, the State could have avoided dismissal by either requesting a
good cause extension of the time limits at the July 7 hearing (instead of
requesting a dismissal without prejudice) or by including a statement of the
reasons for its delay when it refiled the petition in August.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] In pertinent part, § 48.25(2)(a), Stats., provides:
[T]he district attorney ... shall file the petition, close the case, or refer the case back to intake within 20 days after the date that the intake worker’s recommendation was filed ¼ The time limits in this subsection may only be extended by a judge upon a showing of good cause under s. 48.315. If a petition is not filed within the time limitations set forth in this subsection and the court has not granted an extension, the petition shall be accompanied by a statement of reasons for the delay. The court shall dismiss with prejudice a petition which was not timely filed unless the court finds at the plea hearing that good cause has been shown for failure to meet the time limitations.