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Initial “stay” of juvenile sex offender reporting requirement wasn’t a permanent stay under § 938.34(16)

State v. Jermaine C., 2014AP467, District 1, 10/21/14 (1-judge decision; ineligible for publication); case activity

The circuit court’s decision at Jermaine’s disposition hearing to stay the sex offender registration requirement wasn’t a permanent stay of the requirement under § 938.34(16) and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1, because the record shows the circuit court was only deferring a final decision on a permanent stay pending reviews of Jermaine’s progress.

Jermaine’s dispositional order provided that “[t]he Court STAYS [the sex offender] reporting requirement at this time.” (¶5). Over the course of several reviews of Jermaine’s progress, the state asked the court to order Jermaine to register as a sex offender. (¶¶5-8). When the court ultimately set a hearing to address sex offender reporting, Jermaine argued that the dispositional order provided for a permanent stay under § 938.34(16), and lifting the stay required the state to prove that Jermaine violated a condition of his dispositional order. The court concluded that the dispositional order only intended to defer deciding whether to stay the reporting requirement, so the burden was on Jermaine to prove by clear and convincing evidence that he was entitled to a stay. (¶¶9-12). The court ultimately denied the permanent stay and ordered Jermaine to register. (¶13).

The court of appeals finds the dispositional order to be ambiguous, but concludes the record in its entirety makes it clear the court meant to defer ruling on the issue of reporting and did not intend to enter a permanent stay because:

  • Cesar G., 272 Wis. 2d 22, ¶¶50-51, requires a court to consider certain factors before entering a stay pursuant to § 938.34(16), and “the record is absolutely void of any reference to any of these factors.” (¶20).
  • At disposition the court did not follow the statutory procedures for entering a permanent stay because it did not follow § 938.34(16)’s directives to “enter an additional order staying the execution of the dispositional order” or “explain[] to [Jermaine]” that the stay was contingent upon his satisfactory compliance with the conditions of the dispositional order. (¶21).
  • Prior to the entry of the dispositional order, all references to a “stay” had been qualified by time, indicating that the parties did not intend the “stay” to be permanent, but rather intended merely to defer deciding the issue of reporting until a later date. (¶22).
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