938.245 Deferred prosecution.

(1) When available. An intake worker may enter into a written deferred prosecution agreement with all parties as provided in this section if all of the following apply:

(a) The intake worker has determined that neither the interests of the juvenile nor of the public require filing of a petition for circumstances relating to s. 938.12, 938.125, 938.13, or 938.14.

(b) The facts persuade the intake worker that the jurisdiction of the court, if sought, would exist.

(c) The juvenile, parent, guardian and legal custodian consent.

(1m) Victims; right to confer with intake worker. If a juvenile is alleged to be delinquent under s. 938.12 or to be in need of protection or services under s. 938.13 (12), an intake worker shall, as soon as practicable but before entering into a deferred prosecution agreement under sub. (1), offer all of the victims of the juvenile's alleged act who have so requested an opportunity to confer with the intake worker concerning the proposed deferred prosecution agreement. The duty to offer an opportunity to confer under this subsection does not limit the obligation of the intake worker to perform his or her responsibilities under this section.

(2) Contents of agreement.

(a) Specific conditions. A deferred prosecution agreement may provide for any one or more of the following:

1. `Counseling.' That the juvenile and the juvenile's parent, guardian or legal custodian participate in individual, family or group counseling and that the parent, guardian or legal custodian participate in parenting skills training.

2. `Compliance with obligations.' That the juvenile and a parent, guardian, or legal custodian abide by such obligations, including supervision, curfews, and school attendance requirements, as will tend to ensure the juvenile's rehabilitation, protection, or care.

3. `Alcohol and other drug abuse assessment.' That the juvenile submit to an alcohol and other drug abuse assessment that meets the criteria under s. 938.547 (4) and that is conducted by an approved treatment facility for an examination of the juvenile's use of alcohol beverages, controlled substances, or controlled substance analogs and any medical, personal, family, or social effects caused by its use, if the multidisciplinary screen under s. 938.24 (2) shows that the juvenile is at risk of having needs and problems related to the use of alcohol beverages, controlled substances, or controlled substance analogs and its medical, personal, family, or social effects.

4. `Alcohol and other drug abuse treatment and education.' That the juvenile participate in an alcohol and other drug abuse outpatient treatment program or a court-approved alcohol or other drug abuse education program, if an alcohol and other drug abuse assessment under subd. 3. recommends outpatient treatment, intervention, or education.

5. `Restitution.'

a. That the juvenile participate in a restitution project if the act for which the agreement is being entered into resulted in damage to the property of another, or in actual physical injury to another excluding pain and suffering. Subject to subd. 5. c., the agreement may require the juvenile to repair the damage to property or to make reasonable restitution for the damage or injury, either in the form of cash payments or, if the victim agrees, the performance of services for the victim, or both, if the intake worker, after taking into consideration the well-being and needs of the victim, considers it beneficial to the well-being and behavior of the juvenile. The agreement shall include a determination that the juvenile alone is financially able to pay or physically able to perform the services, may allow up to the date of the expiration of the agreement for the payment or for the completion of the services, and may include a schedule for the performance and completion of the services. Any recovery under this subd. 5. a. shall be reduced by the amount recovered for the same act under subd. 5. am.

am. That the parent who has custody, as defined in s. 895.035 (1), of the juvenile make reasonable restitution for any damage to the property of another, or for any actual physical injury to another excluding pain and suffering, resulting from the act for which the agreement is being entered into. Except for recovery for retail theft under s. 943.51, the maximum amount of any restitution ordered under this subd. 5. am. for damage or injury resulting from any one act of a juvenile or from the same act committed by 2 or more juveniles in the custody of the same parent may not exceed $5,000. Any order under this subd. 5. am. shall include a finding that the parent is financially able to pay the amount ordered and may allow up to the date of the expiration of the agreement for the payment. Any recovery under this subd. 5. am. shall be reduced by the amount recovered for the same act under subd. 5. a.

b. In addition to any other employment or duties permitted under ch. 103 or any rule or order under ch. 103, a juvenile under 14 years of age who is participating in a restitution project provided by the county or who is performing services for the victim as restitution may, for the purpose of making restitution, be employed or perform any duties under any circumstances in which a juvenile 14 or 15 years of age is permitted to be employed or to perform duties under ch. 103 or any rule or order under ch. 103. A juvenile who is participating in a restitution project provided by the county or who is performing services for the victim as restitution is exempt from the permit requirement under s. 103.70 (1).

c. An agreement under this subdivision may require a juvenile who is under 14 years of age to make not more than $250 in restitution or to perform not more than 40 total hours of services for the victim as total restitution.

6. `Supervised work program.' That the juvenile participate in a supervised work program or other community service work in accordance with s. 938.34 (5g).

7. `Volunteers in probation.' That the juvenile be placed with a volunteers in probation program under conditions the intake worker determines are reasonable and appropriate, if the juvenile is alleged to have committed an act that would constitute a misdemeanor if committed by an adult, if the chief judge of the judicial administrative district has approved under s. 973.11 (2) a volunteers in probation program established in the juvenile's county of residence, and if the intake worker determines that volunteer supervision under that program will likely benefit the juvenile and the community. The conditions an intake worker may establish under this subdivision may include a request to a volunteer to be a role model for the juvenile, informal counseling, general monitoring, monitoring of the conditions established by the intake worker, or any combination of these functions, and any other deferred prosecution condition that the intake worker may establish under this paragraph.

8. `Teen court program.' That the juvenile be placed in a teen court program if all of the following conditions apply:

a. The chief judge of the judicial administrative district has approved a teen court program established in the juvenile's county of residence and the intake worker determines that participation in the teen court program will likely benefit the juvenile and the community.

b. The juvenile is alleged to have committed a delinquent act that would be a misdemeanor if committed by an adult or a civil law or ordinance violation.

c. The juvenile admits to the intake worker, in the presence of the juvenile's parent, guardian, or legal custodian, that the juvenile committed the alleged delinquent act or civil law or ordinance violation.

d. The juvenile has not successfully completed participation in a teen court program during the 2 years before the date of the alleged delinquent act or civil law or ordinance violation.

9m. `Youth report center.' That the juvenile report to a youth report center after school, in the evening, on weekends, on other nonschool days, or at any other time that the juvenile is not under immediate adult supervision, for participation in the social, behavioral, academic, community service, and other programming of the center. Section 938.34 (5g) applies to any community service work performed by a juvenile under this subdivision.

(b) No out-of-home placement; term of agreement. A deferred prosecution agreement may not include any form of out-of-home placement and may not exceed one year.

(c) Alcohol or other drug abuse treatment; informed consent. If the deferred prosecution agreement provides for alcohol and other drug abuse outpatient treatment under par. (a) 4., the juvenile and the juvenile's parent, guardian or legal custodian shall execute an informed consent form that indicates that they are voluntarily and knowingly entering into a deferred prosecution agreement for the provision of alcohol and other drug abuse outpatient treatment.

(2g) Graffiti violation. If the deferred prosecution agreement is based on an allegation that the juvenile violated s. 943.017 and the juvenile has attained 10 years of age, the agreement may require that the juvenile participate for not less than 10 hours nor more than 100 hours in a supervised work program under s. 938.34 (5g) or perform not less than 10 hours nor more than 100 hours of other community service work, except that if the juvenile has not attained 14 years of age the maximum number of hours is 40.

(2v) Habitual truancy violation. If the deferred prosecution agreement is based on an allegation that the juvenile has violated a municipal ordinance enacted under s. 118.163 (2), the agreement may require that the juvenile's parent, guardian, or legal custodian attend school with the juvenile.

(3) Obligations in writing. The obligations imposed under a deferred prosecution agreement and its effective date shall be set forth in writing. The written agreement shall state whether the juvenile has been adopted. The intake worker shall provide a copy of the agreement and order to the juvenile, to the juvenile's parent, guardian, and legal custodian, and to any agency providing services under the agreement.

(4) Right to terminate or object to agreement. The intake worker shall inform the juvenile and the juvenile's parent, guardian, and legal custodian in writing of their right to terminate the deferred prosecution agreement at any time or to object at any time to the fact or terms of the agreement. If there is an objection, the intake worker may alter the terms of the agreement or request the district attorney or corporation counsel to file a petition. If the agreement is terminated the intake worker may request the district attorney or corporation counsel to file a petition.

(5) Termination upon request. A deferred prosecution agreement may be terminated upon the request of the juvenile, parent, guardian, or legal custodian.

(6) Termination if delinquency petition filed. A deferred prosecution agreement arising out of an alleged delinquent act is terminated if the district attorney files a delinquency petition within 20 days after receipt of notice of the deferred prosecution agreement under s. 938.24 (5). If a petition is filed, statements made to the intake worker during the intake inquiry are inadmissible.

(7) Cancellation by intake worker.

(a) If at any time during the period of a deferred prosecution agreement the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the agreement. Within 10 days after the agreement is cancelled, the intake worker shall notify the district attorney, corporation counsel, or other official under s. 938.09 of the cancellation and may request that a petition be filed. In delinquency cases, the district attorney may initiate a petition within 20 days after the date of the notice regardless of whether the intake worker has requested that a petition be filed. The court shall grant appropriate relief as provided in s. 938.315 (3) with respect to any petition that is not filed within the time period specified in this paragraph. Failure to object to the fact that a petition is not filed within the time period specified in this paragraph waives any challenge to the court's competency to act on the petition.

(b) In addition to the action taken under par. (a), if the intake worker cancels a deferred prosecution agreement based on a determination that the juvenile's parent, guardian, or legal custodian is not meeting the obligations imposed under the agreement, the intake worker shall request the district attorney, corporation counsel, or other official under s. 938.09 to file a petition requesting the court to order the juvenile's parent, guardian, or legal custodian to show good cause for not meeting the obligations. If a petition under this paragraph is filed and if the court finds prosecutive merit for the petition, the court shall grant an order directing the parent, guardian, or legal custodian to show good cause, at a time and place fixed by the court, for not meeting the obligations. If the parent, guardian or legal custodian does not show good cause, the court may impose a forfeiture not to exceed $1,000.

(8) When obligations met. If the obligations imposed under the deferred prosecution agreement are met, the intake worker shall so inform the juvenile and a parent, guardian, and legal custodian in writing. No petition may be filed or citation issued on the charges that brought about the agreement and the charges may not be the sole basis for a petition under s. 48.13, 48.133, 48.14, 938.13, or 938.14.

(9) Written policies. The intake worker shall perform his or her responsibilities under this section under general written policies promulgated under s. 938.06 (1) or (2).

History: 1995 a. 77, 352, 448; 1997 a. 80, 181, 183, 205, 239, 292; 1999 a. 9, 32; 2001 a. 16; 2003 a. 138; 2005 a. 344; 2007 a. 199; 2011 a. 32; 2015 a. 381.

When a district attorney receives notice of a deferred prosecution agreement from an intake worker under s. 938.24 (5), the 20 days during which the district attorney may terminate the agreement under sub. (6) begins. When a court orders a deferred prosecution agreement under s. 938.21 (7), the intake worker need not notify the district attorney and nothing triggers a district attorney's authority to terminate the agreement under sub. (6). An order under s. 938.21 (7) dismissing a petition and referring for deferred prosecution does not require district attorney consent. The district attorney may not override the order by filing a new petition with the same charges and facts. State v. Lindsey A.F. 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116, 01-0081.

Affirmed. 2003 WI 63, 262 Wis. 2d 200, 663 N.W.2d 757, 01-0081.