The case appears to be an issue of first impression: Whether §938.34(5)(c), which provides that juveniles under 14 can’t be required to pay more than $250 in restitution, refers to the juvenile’s age when the State filed the delinquency petition or the juvenile’s age at the time of disposition. The court of appeals, choosing the time of disposition, upholds the $1,600 restitution award against J.J.S., even though he was just 13 when the filed its petition.
J.J.S. argued that §938.34(5)(c) must be interpreted in pari materia with §938.34(4h)(a) regarding placement of a juvenile in a “Serious Juvenile Offender Program.” The latter applies when the juvenile is 14 or older “and has been adjudicated delinquent.” The former (i.e. the restitution provision) omits “and has been adjudicated delinquent,” suggesting that legislature wanted it to apply to the juvenile’s age at the time the petition was filed. Says the court of appeals:
¶7 , , , That argument fails to recognize that § 938.34(5)(a) allows a circuit court to order restitution only after a juvenile is found to have committed a delinquent act, a finding that may be after he or she turns fourteen years old. Adding “and has been adjudicated delinquent” in para. (5)(c) would have only created surplusage. See Kalal, 271 Wis. 2d 633, ¶46 (statutes must be interpreted “to avoid surplusage”).
¶8 We conclude the plain language of WIS. STAT. § 938.34(5)(c) allows a circuit court to order restitution over $250 if the juvenile is fourteen years of age or older at the time the dispositional order is entered. The use of the present-tense verb “is” rather than “was” in para. (5)(c), without any other qualifying language, clearly indicates a juvenile’s current age controls what a court “may order” at the dispositional hearing. Simply put, under paragraph (5)(c), it is the time that the court enters the restitution order when the court determines whether the juvenile “is” over or under fourteen years of age and accordingly determines whether the $250 limit applies.