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Defense win! Court of appeals vacates order lifting stay on sex offender registration

State v. D.C.M., 2016AP1205-FT, 10/5/16, District 2 (1-judge opinion; ineligible for publication); case activity

The stay of a dispositional order in a juvenile case cannot be lifted unless the parties and the court follow the notice and hearing requirements of §938.34(16).  They failed to do so in this case, so the court of appeals reversed the circuit court’s order lifting the stay on D.C.M.’s sex offender registration.

¶6 D.C.M. asserts that the procedures found in WIS. STAT. § 938.34(16) were not followed in this case. The March 14, 2016 hearing in which the court lifted the stay was scheduled upon the County’s request for an early termination of the dispositional order as Texas was planning to discontinue providing treatment to D.C.M. The County’s letter asking for the hearing did not notify the court or D.C.M. that it was seeking to lift the stay, nor did it suggest that D.C.M. had violated the dispositional order. Instead, the request to lift the stay came during the March 14, 2016 hearing, where the State commented that D.C.M.’s supervision should be terminated after lifting the stay.

¶7 The State agrees that no written request to lift the stay was made in this case. The letter sent by the County requested early termination of the supervision order, but did not reference any violations of D.C.M.’s supervision. Further, once the oral request was made by the State at the March 14, 2016 hearing, the notice requirements of WIS. STAT. § 938.34(16) were not followed. The State did not meet its burden to prove that D.C.M. violated a condition of his dispositional order. Thus, we agree with both D.C.M. and the State that the procedures codified in § 938.34(16) were not followed and, therefore, the stay should not have been lifted.

The court of appeals also held that remand to the circuit court for a do over would be inappropriate because the dispositional order had terminated. It therefore simply vacated the order lifting the stay on sex offender registration. ¶5.

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