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Juvenile court can’t order consent decree over state’s objection

State v. C.G.B., 2017 WI App 32; case activity

While the juvenile code gives a judge the authority to dismiss a juvenile delinquency petition and refer the case for a deferred prosecution agreement (DPA) over the district attorney’s objection, State v. Lindsey A.F., 2003 WI 63, 262 Wis. 2d 200, 663 N.W.2d 757, the code does not give the judge the authority to dismiss a petition and order a consent decree over the DA’s objection.

Lindsey A.F.262 Wis. 2d 200, ¶34, held that the plain language of § 938.245(6) authorizes a DA to override an intake worker’s determination that a DPA is appropriate within 20 days after notice of the DPA, but the statute does not authorize a district attorney to override a court-ordered referral for a DPA made by the circuit court under § 938.21(7). Based on Lindsey A.F. the circuit court decided it could order a consent decree over the DA’s objection in C.G.B.’s case. The court of appeals disagrees, based on the different statutory language governing DPAs and consent decrees:

¶7     Under Wis. Stat. § 938.245, a DPA may be entered into “with all parties” if the intake worker determines that neither the interests of the public nor the juvenile require the filing of a delinquency petition; that the intake worker determines that the jurisdiction of the court would exist if a petition was sought; and the juvenile, parent, guardian, and legal custodian consent to the DPA. Sec. 938.245(1)(a)-(c). “Parties” under § 938.245 does not include either the district attorney or the court as a participant in the process. See id. A DPA differs from a consent decree in that a DPA may not include any form of “out-of-home placement” and may not exceed one year. Compare § 938.245(2)(b), with Wis. Stat. § 938.32(1)(c), (2).

¶8     In contrast, a consent decree authorized under Wis. Stat. § 938.32 “must be agreed to by the juvenile; the parent, guardian, or legal custodian; and the person filing the petition,” i.e., the district attorney. Sec. 938.32(1)(a). Statutorily, a consent decree may place a juvenile outside of the juvenile’s home, may be extended beyond one year, and the district attorney is obligated to offer victims the opportunity to confer with him or her regarding the proposed consent decree. Sec. 938.32(1)(c), (1)(am), (2). Unlike in Lindsey A.F., the procedure authorizing a consent decree is not statutorily the same as a DPA. Wisconsin Stat. § 938.21(7) grants the circuit court the authority to enter a consent decree if “the best interests of the juvenile and the public are served,” but it must do so “under” the confines of § 938.32, which mandates that all parties, including the district attorney, must agree before a valid consent decree may be entered.

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