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Once waived, always waived? SCOW will decide

State v. Matthew C. Hinkle, 2017AP1416-CR, petition for review granted 4/9/19;  affirmed 11/12/19case activity (including briefs)


Once a juvenile has been waived into adult court by one circuit court, must the juvenile always be subject to adult court jurisdiction in any other cases?

When Hinkle was 16 years old he was charged as a juvenile in Milwaukee and Fond du Lac counties for a car theft and police chase. The Milwaukee juvenile court waived Hinkle into adult court. Fond du Lac then concluded that it had to treat him as an adult, too. Two court of appeals judges agreed, holding that under § 938.183(1)(b) a waiver by one court binds all future courts. That statute provides adult criminal courts with “exclusive original jurisdiction” over a juvenile:

… who is alleged to have violated any state criminal law if the juvenile has been convicted of a previous violation following waiver of jurisdiction … by the court assigned to exercise jurisdiction under this chapter and ch. 48 or if the court assigned to exercise jurisdiction under this chapter and ch. 48 has waived its jurisdiction over the juvenile for a previous violation and criminal proceedings on that previous violation are still pending.

The second condition, after the emphasized “or,” is the one applicable to Hinkle. According to the court of appeals, “the court assigned to exercise jurisdiction under this chapter and ch. 48” means any juvenile court–not just the court where the current matter is pending. So, the Milwaukee juvenile court having waived Hinkle means he can never again be treated as a juvenile, in any county: “once waived, always waived.”

By contrast, Hinkle and a dissenting judge read the statute’s reference to “the court assigned jurisdiction” under ch. 938 or 48 to mean the juvenile court in the county in which the juvenile case is pending, not “any” court exercising juvenile jurisdiction anywhere. As the dissent put it, “if the legislature intended a ‘once waived, always waived’ justice system, it would have used the term ‘any court.’” (¶27). And, the dissent argued, it is better as a matter of policy that each county make the fact-based, discretionary decision about waiver based on the criteria spelled out in § 938.18(5). “Each county runs its own juvenile system … [and] Fond du Lac County may place more emphasis on its juvenile justice system and may allocate significantly more resources per child/per capita than Milwaukee County in its juvenile services.” (¶28). Yet the majority’s reading of § 938.183 permits Milwaukee to eliminate Fond du Lac’s discretion to determine what it thinks is in the “best interests” of the juvenile and the public.

The clash between these interpretations of § 938.138 will be settled next term.

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