COURT OF
APPEALS DECISION DATED AND
RELEASED May
9, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0579
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
INTEREST OF TARA B.,
A
PERSON UNDER THE AGE OF 18:
STATE
OF WISCONSIN,
Petitioner-Respondent,
v.
TARA
B.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge.
Reversed.
SUNDBY,
J. On February 27, 1996, this court entered an order granting
Tara B.'s motion for stay of the dispositional order affecting her and
releasing her from custody. The court[1]
stated that Tara had shown a substantial likelihood of success of showing that
the trial court lost competency to proceed on the State's second amended
petition because the State did not grant her a plea hearing within the time
required by § 48.30(1), Stats. The State now concedes that the trial court
lost competency to proceed on the second amended petition. It argues, however, that the trial court
should have dismissed the second amended petition without prejudice. The State correctly argues that the proper
remedy for failure to hold a plea hearing within the time limits is dismissal
without prejudice. See In
re R.H., 147 Wis.2d 22, 32, 433 N.W.2d 16, 20 (Ct. App. 1988), aff'd,
150 Wis.2d 432, 441 N.W.2d 233 (1989).
The State further correctly argues that the question of the validity of
the trial court's dispositional order is moot.
Tara
argues that this court's statement in R.H. that the general rule
is that failure to comply with mandatory time limits is properly remedied by
dismissal without prejudice was merely dicta.
We agree but note that our statement in R.H. was based on
precedent. The court also concludes
that In re Jason B., 176 Wis.2d 400, 500 N.W.2d 384
(Ct. App. 1993), does not answer the question Tara now presents, i.e.,
whether the State should be allowed to refile a delinquency petition alleging
the same acts of delinquency as were alleged in the State's second amended
petition.
We
agree with Tara that it is not in her best interest that this matter be
prolonged any further. However, any
ruling which this court would make as to the appropriateness of Tara's
disposition would be prejudging a case not before the court. The State may choose not to file a further
petition or may file a petition based on other delinquent acts. As far as the present case is concerned, the
slate is clean.
This
court cannot rule on whether a new delinquency petition should be dismissed
with prejudice because that petition is not now before the court. To rule now would be to render an advisory
opinion. It is undoubtedly true that
these protracted proceedings have not been in Tara's best interest, but it must
be acknowledged that she elected to move to dismiss the State's petition on
competency grounds when she could have proceeded on the merits of the
disposition. It would be in Tara's best
interest if the parties agreed upon a disposition which will eliminate the need
for further judicial proceedings in this matter.
By
the Court.—Order reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.