Citation Numbers: 72 Op. Att'y Gen. 104
Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 8/9/1983
Status: Precedential
Modified Date: 4/15/2017
LINDA REIVITZ, Secretary Department of Health and Social Services
You have asked several questions presented by the situation in which a child who has been placed on probation by a court of criminal jurisdiction, following waiver of juvenile jurisdiction, commits an act which violates the conditions of probation.
1. You have asked, first of all, whether the Department of Health and Social Services (Department) has exclusive authority to take the child into custody for the violation of probation or other reasons. I have concluded that the Department does have exclusive authority to take the child into custody for the probation violation, but that, when unlawful conduct which violates the conditions of probation constitutes a delinquent act as well, the child may also be taken into custody by a law enforcement officer and held by a juvenile court intake worker under the authority delegated by the Children's Code. The Department has exclusive authority, however, to release the child from the probation hold.
Once the juvenile court properly waives its jurisdiction in a particular case, the criminal court has exclusive jurisdiction over all further proceedings in that case. Sec. 48.18(6), Stats. The juvenile court no longer has any authority to act in the matter. See id.
When the criminal court imposes probation as a disposition, the child is placed in the custody of the Department, under the Department's control. Sec.
But just as a subsequent unlawful act committed by an adult may be both a violation of probation and a crime, State ex rel. Lyonsv. DH SS,
The person taking the child into custody and the intake worker have authority to release a child from the detention initiated because he committed a delinquent act. Sec.
When an adult commits a criminal act which also constitutes a violation of probation, the criminal court has authority to set bail on the criminal charge, but no authority to release the person from a probation hold placed by the Department. State exrel. Foshey v. DH SS,
The same rationale applies with increased vigor to juvenile courts, whose jurisdiction is defined and limited by the statutes. See generally Matter of D.V.,
Even when juvenile authorities order a child's release in connection with delinquency proceedings, therefore, the child will remain in custody unless the Department also releases the probation hold.
2. Your second question is whether a child who is taken into custody for violating the conditions of probation must be brought before a juvenile court intake worker. I have concluded that such an appearance is not necessary if the child is not also detained as a delinquent.
The Children's Code requires an intake worker to interview "any child who is taken into physical custody and not released" so that a determination can be made whether to release the child or hold him in secure detention. Sec.
3. You have asked, finally, whether a child who is taken into custody for violating the conditions of probation can be held in the adult section of the county jail. I have concluded that he can be held in those quarters when he is detained on a probation hold. *Page 107
As soon as juvenile jurisdiction is waived, a child who is held in custody must be transferred to an adult facility. Sec. 48.18(8), Stats. It follows from this requirement that any future confinement resulting from the offense on which jurisdiction has been waived must be in an adult facility.
This requirement overrides the provisions of the Children's Code which prohibit a child from being held in the adult section of the jail. Secs.
BCL:TJB
State Ex Rel. Shock v. Department of Health & Social ... , 77 Wis. 2d 362 ( 1977 )
Gibson v. State , 47 Wis. 2d 810 ( 1970 )
State Ex Rel. Lyons v. Department of Health & Social ... , 105 Wis. 2d 146 ( 1981 )
State Ex Rel. Cox v. State, Department of Health & Social ... , 105 Wis. 2d 378 ( 1981 )