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State v. Cortez Lorenzo Toliver, 2012AP393-CR, petition for review granted 12/17/13

Review of unpublished per curiam court of appeals decision; case activity

Issues (composed by On Point)

Did the adult court lose jurisdiction or competency to proceed against a juvenile by failing to make a specific finding at the preliminary hearing that there was probable cause to believe the juvenile committed an offense that gave the adult court jurisdiction over the juvenile?

Did the circuit court erroneously exercise its discretion in denying Toliver’s motion for “reverse” waiver from adult to juvenile court under 970.032?

Did the circuit court erroneously exercise its discretion in imposing near maximum, consecutive sentences?

The usual caveat applies to this statement of the issues: Petitions for review are not available on the court’s website, so these issues are On Point’s attempt to ferret out the reason for the grant. While the second and third issues were the focus of the court of appeals decision in the case, they hardly seem grant-worthy by themselves. The meatier issue is the first one, and assuming that is the issue that got the supreme court’s attention, this case will be an interesting and important one for lawyers handling cases in which the state charges a juvenile in adult court using the original jurisdiction provisions under § 938.183.

The first issue was raised by Toliver in his reply brief (after a change in appellate counsel). That caused the court of appeal to refuse to consider it. (¶29 n.5). But the court’s footnote inadequately describes the gravamen of Toliver’s argument. The note simply says Toliver argues the court failed to comply with § 970.032, but fails to add that Toliver contends this failure deprived the adult court of jurisdiction (or, at least, competency to act). Why does that matter? First, Toliver didn’t bring the matter up for the first time out of thin air; he was responding to the state’s argument that, by pleading guilty in adult court, he waived the right to challenge whether he was properly convicted and sentenced in that Court. State v. Schroeder, 224 Wis. 2d 706, 711, 593 N.W.2d 76 (Ct. App. 1999). Second, and more fundamentally, jurisdictional challenges can’t be waived. Mack v. State, 93 Wis. 2d 287, 293, 286 N.W.2d 563 (1980). (Competency challenges can be, however. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶30, 273 Wis.2d 76, 681 N.W.2d 190.)

The heart of Toliver’s argument is that he was a juvenile (age 16) when charged, and § 970.032(1) expressly requires the court find that probable cause of the specific felony of attempted first-degree intentional homicide (or one of the other felonies enumerated under that statute) exists. Further, the court must do so at the preliminary hearing stage in order to retain subject matter jurisdiction over the case. Because the circuit court in Toliver’s case did not make this finding, he argues it lost jurisdiction. The supreme court itself has said that statute requires the court to determine whether there is probable cause to believe that the juvenile has committed “the violation” of which he or she is accused in the criminal complaint “to assure that the criminal court has ‘exclusive original jurisdiction’ of the juvenile by virtue of the juvenile’s probable violation of one of the offenses enumerated in Wis. Stat. §§ 938.183(1)(a), (am), (ar), (b), or (c),” and that failure to make that finding requires the adult court to order the juvenile be discharged (though he can be charged in juvenile court). State v. Kleser, 2010 WI 88, ¶57, 328 Wis.2d 42, 786 N.W.2d 144.

There’s an obvious tension between this language from Kleser and Mikrut, ¶¶8-9, which says that jurisdiction is conferred not by act of the legislature, but by the Constitution, and that because the circuit court’s subject matter jurisdiction is plenary and constitutionally-based, noncompliance with a statutory mandate pertaining to the invocation of jurisdiction is not itself “jurisdictional” and does not negate the court’s jurisdiction. The court’s resolution of the tension could have a significant impact on juveniles charged as adults, so stay tuned.

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