Waiver to Adult Court
Wis. Stat. § 938.18

Challenging Waiver

(a) Time limits for the underlying delinquency petition must be met: The juvenile court loses competency to waive jurisdiction if a delinquency petition is not filed within the statutory time limits. A waiver petition alone does not initiate a juvenile court proceeding.
  • In the Interest of Michael J.L., 174 Wis. 2d 131 (Ct. App 1993)

(b) Sufficiency of a waiver petition: Waiver petition must include brief statement of the facts upon which state will rely in seeking to have juvenile tried as an adult (not just facts underlying the charge).

  • In the Interest of J.V.R., 127 Wis. 2d 192 (1985)
(c) Discussion of discovery:
The prosecutor must produce only that amount of information which will allow the juvenile court to decide that the state has sufficient evidence to compel the juvenile to be subjected to a criminal trial. Materials related to juvenile’s personality and past history are also discoverable.
  • In the Interest of T.M.J., 110 Wis. 2d 7 (1982)
  • In the Interest of G.B.K., 126 Wis. 2d 253 (Ct. App. 1985)
(d) Pre-waiver motions:
  • In the Interest of D.E.D., 101 Wis. 2d 193 (Ct. App. 1981)
(e) Prosecutive Merit:
If a petition contains adequate and detailed information concerning the juvenile's alleged violation of state criminal law, and has demonstrable circumstantial guarantees of trustworthiness, the petition alone can constitute sufficient evidence from which the juvenile court may determine that the matter has prosecutive merit, even when the issue of prosecutive merit is contested. Under those circumstances, there is no absolute requirement that the state present, or that the court consider, testimony and evidence in addition to the petitions before the court may determine that the matter has prosecutive merit.
  • In the Interest of T.R.B., 109 Wis. 2d 179 (1982)
  • In the Interest of J.G., 119 Wis. 2d 748 (1984)
  • In the Interest of P.A.K., 119 Wis. 2d 871 (1984)
(f) Court’s considerations:
The juvenile court has the discretion to decide how much weight to give each waiver factor.
  • In the Interest of S.N., 139 Wis. 2d 270 (Ct. App. 1987)
  • In the Interest of C.W., 142 Wis. 2d 762 (Ct. App. 1987)
  • In the Interest of J.A.L., 162 Wis. 2d 940 (1991)
  • In the Interest of B.B., 166 Wis. 2d 202 (Ct. App. 1991)

Waiver Investigation Reports

Permitting the DHHS to contact both the juvenile and the state for purposes of preparing a waiver investigation report effectuates the express objectives of Wis. Stat. ch. 938.
  • In the Interest of Tyler T., 2010AP784
A waiver decision may (must!) be appealed as an interlocutory appeal under Wis. Stat. s. 808.03(2).
  • A.E. v. Green Lake County Circuit Court, 94 Wis. 2d 98 (1980)

After the state has filed a criminal complaint, and the criminal court has assumed jurisdiction, the juvenile court may not reconsider its waiver order so long as the criminal court retains jurisdiction. The juvenile may seek a stay of proceedings in order to file an interlocutory appeal during the 14-day-period for motions pursuant to Wis. Stat. § 809.50. However, after the criminal court has assumed jurisdiction, the juvenile must file the motion with the criminal court or the court of appeals.

The juvenile court retains jurisdiction and may reconsider its own waiver order until a criminal complaint is filed. Wisconsin Statute s. 938.18(6) contemplates the juvenile court waiving jurisdiction and the criminal court assuming jurisdiction. As soon as the criminal court assumes jurisdiction, it assumes exclusive jurisdiction, and the juvenile court loses jurisdiction to reconsider its own waiver order.
  • State v. Vairin M., 2002 WI 96