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Juvenile Sex Offender Registration – Authority to Stay

State v. Malcolm L., 2011AP714, District 2, 10/12/11

court of appeals decision (1-judge, not for publication); for Malcolm L.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

Juvenile courts have authority to stay sex offender registration, § 938.34(16), and State v. Cesar G., 2004 WI 61, 272 Wis. 2d 22, 682 N.W.2d 1. Here, the trial court erroneously failed to exercise discretion on Malcolm’s request for such a stay. Malcolm’s renewal of the issue via § 809.30(2)(h) postdisposition motion was denied on the ground that he had by then turned 18 and, according to the circuit court, competency to rule on the motion had therefore been lost. The court of appeals now reverses:

¶8        Next, we address the postdisposition court’s competence. [3]  Whether a trial court has lost competency to proceed is a question of law that we review independently.  Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190.  In its decision, the postdisposition court reasoned that it was not competent to act because Malcolm had turned eighteen and his dispositional order expired before his postdisposition hearing.  But the bottom line in this case is that Malcolm timely requested a stay of the sex offender registration condition, thereby preserving the issue[4]—before he turned eighteen and while the entire dispositional order was still in effect.  The trial court either did not make a decision on Malcolm’s motion to stay or it made a decision based on an erroneous application of the law.  Either way, it would not make sense to say that Malcolm cannot appeal an error in part of his order that is still in effect simply because his birthday has passed.  The juvenile court does not lose the power to correct its own errors merely because a juvenile reaches the age of eighteen.

¶12      Malcolm should have a determination of whether his registration should be stayed under Wis. Stat. § 938.34(16), and the postdisposition court—as an extension of the trial court—is the one to make it.  See Wis. Stat. Rule 809.30(2)(h)-(i).  We therefore remand and direct the postdisposition court to give Malcolm the opportunity to prove, by clear and convincing evidence, that he should be granted a § 938.34(16) stay of the order requiring him to register as a sex offender.  See Cesar G., 272 Wis. 2d 22, ¶¶50-51.

State v. Kleser, 2010 WI 88, ¶119, 328 Wis. 2d 42, 786 N.W.2d 144 (no authority to conduct reverse waiver hearing after defendant turns 18), distinguished (¶10): “Kleser dealt with the court’s ability to exercise new authority over a juvenile.  What Malcolm requests, in contrast, is a hearing on an order to stay an already existing dispositional order.”

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