COURT OF APPEALS

COURT OF APPEALS

DECISION

DATED AND FILED

January 20, 2010

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.�

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.�

Appeal No.�	2009AP1975	Cir. Ct. No.� 2007JV23
STATE OF WISCONSIN��			IN COURT OF APPEALS
			DISTRICT III


In the interest of Robert H., a person under the age of 17: State of Wisconsin, �� Petitioner-Respondent, �� v. Robert H., �� Respondent-Appellant.

�� APPEAL from an order of the circuit court for Brown County:� TIMOTHY A. HINKFUSS, Judge.� Reversed and cause remanded with directions.�

�1�� PETERSON, J.[1] Robert H. appeals an order finding him delinquent.� Robert argues the circuit court incorrectly concluded the State complied with the time limits for requesting and filing a delinquency petition.� As a result, he argues the court was required to dismiss the petition.� We agree with Robert that the State did not comply with the time limits, but we do not agree this obligated the court to dismiss his petition.� Therefore, we reverse and remand for the circuit court to determine the proper remedy for the State�s failure to timely request and file a delinquency petition.

BACKGROUND

�2�� In September 2006, Robert, a juvenile, punched another student in the face at school while holding a combination lock in his hand.� On November 8, 2006, the Green Bay Police Department referred the incident to a county juvenile intake worker.� On December 15, the intake worker signed a referral requesting the district attorney file a delinquency petition.� It is unclear what happened to the referral next, but it was date-stamped as received by the Brown County district attorney�s office on January 3, 2007.� The district attorney filed a delinquency petition charging Robert with battery on January 22.

�3�� At a hearing on June 12, 2007, Robert argued the petition should be dismissed because either the intake worker or the district attorney failed to comply with the statutory time limits.� An intake worker must request a delinquency petition within forty days after receiving the referral; and the district attorney must file the petition within twenty days of that request.� Robert contended that if the date of request was January 3�the day it was received in the district attorney�s office�the intake worker did not request the petition within forty days of receiving the referral.� But if the date of request was the day it was signed, December 15, the petition filed on January 22 was beyond the twenty-day filing period.

�4�� The circuit court agreed the State failed to comply with the necessary time limits and granted Robert�s motion to dismiss.� The State moved for reconsideration, arguing Robert had erroneously represented that there cannot be a gap between the date an intake worker requests a delinquency petition and the date the request is filed with the district attorney. Thus, the State contended the court had incorrectly concluded the time between December 15 and January 3 counted toward the statutory time limits.� �The court agreed with the State and vacated its order dismissing the petition.�

DISCUSSION

�5�� The issue in this appeal is whether the State complied with the statutory time limits for requesting and filing a delinquency petition.� This is a question of statutory interpretation and therefore subject to our independent review.� See State v. Long, 2009 WI 36, �20, 317 Wis. 2d 92, 765 N.W.2d 557.

�6�� The statutory process to find a juvenile delinquent begins with a referral to an intake worker. Wis. Stat. � 938.24(1).� The intake worker must �request that a petition be filed, enter into a deferred prosecution agreement, or close the case within 40 days after receipt of referral information.� �Wis. Stat. � 938.24(5).� If the intake worker requests a delinquency petition be filed, �[t]he district attorney, corporation counsel, or other appropriate official shall file the petition � within 20 days after the date that the intake worker�s request was filed.�� Wis. Stat. � 938.25(2)(a).�

�7�� Robert argues that it would be contrary to the purpose of these statutes to interpret them as permitting a gap between the date on which an intake worker requests a petition and the date the request is filed with the district attorney.� We agree.

�8�� Our supreme court identified the legislature�s purpose in imposing a deadline for filing delinquency petitions in C.A.K. v. State, 154 Wis. 2d 612, 453 N.W.2d 897 (1990).� Discussing the predecessor statute to Wis. Stat. � 938.25�then in Wis. Stat. ch. 48�the court observed:

The drafting records � indicate that the statutory time limitation was added to sec. 48.25 because �the intake process [tended] to bog down when it [got] to the district attorney �.�

�.

Thus, in creating sec. 48.25(2)(a), the legislature sought to alleviate the accumulation of juvenile cases at the district attorney�s office in order to ensure the prompt disposition of cases involving children.�

C.A.K., 154 Wis. 2d at 622-23.�

�9�� In light of the intent �to ensure the prompt disposition of cases involving children,� it would be unreasonable to interpret Wis. Stat. �� 938.24(5) and 938.25(2)(a) to permit a gap between the time a petition is requested and the time the request is filed with the district attorney.� Such an interpretation would permit significant delays in filing petitions such as occurred here.� Rather, the only sensible interpretation of these statutes is that the date that stops the forty-day time limit and begins the twenty-day limit are the same.� This is the date the intake officer files a petition request with the district attorney:� ��the district attorney shall file the petition � within 20 days after the date that the intake worker�s request was filed.�� Wis. Stat. � 938.25(2)(a).

�10�� Generally, filing means �delivery to the proper officer.�� Hoffman v. Rankin, 2002 WI App 189, �15, 256 Wis. 2d 678, 649 N.W.2d 350.� Here, although the petition request was stamped as received on January 3, 2007, the court made no findings about whether this was the date it was delivered to the proper officer.� But no matter what date is used, the State did not both refer the request to the district attorney within forty days and file the delinquency petition within twenty.� Therefore, it did not comply with the time limits set forth in Wis. Stat. �� 938.24(5) and 938.25(2)(a).

�11�� In spite of the State�s failure to comply with these time limits, the court was not obligated to dismiss the petition as it apparently assumed in its initial order.� Rather, both Wis. Stat. �� 938.24(5) and 938.25(2)(a) provide that �[t]he court shall grant 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.�� Under � 938.315(3), the court �may grant a continuance �, dismiss the petition with or without prejudice, release the juvenile from � custody or from the terms of a custody order, or grant any other relief that the court considers appropriate.�� Therefore, on remand the court is directed to determine the proper remedy for the State�s failure to timely request and file the delinquency petition.

�� By the Court.�Order reversed and cause remanded with directions.

�� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.

[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.