PUBLISHED OPINION
Case No.: 96-0761
Complete Title
of Case:
In the Interest of Craig S.G.,
A Person Under the Age of 18:
CRAIG S.G.,
Respondent-Appellant,
v.
STATE OF WISCONSIN,
Petitioner-Respondent.
Submitted on Briefs: November 10, 1996
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 19, 1997
Opinion Filed: February
19, 1997
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: KATHRYN W. FOSTER
so indicate)
JUDGES: Before Snyder, P.J., Brown and Anderson,
JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the respondent-appellant, the cause ws
submitted on the briefs of Joseph Smith, Jr., assistant state public
defender.
Respondent
ATTORNEYSOn behalf of the petitioner-respondent, the cause was
submitted on the brief of Clarice R. Perkins, assistant district
attorney.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED February
19, 1997 |
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. 96-0761
STATE OF WISCONSIN IN
COURT OF APPEALS
In the
Interest of Craig S.G.,
A
Person Under the Age of 18:
CRAIG
S.G.,
Respondent-Appellant,
v.
STATE
OF WISCONSIN,
Petitioner-Respondent.
APPEAL
from an order of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Affirmed.
Before
Snyder, P.J., Brown and Anderson, JJ.
SNYDER,
P.J. Craig S.G. appeals from
a juvenile waiver order in which a ch. 48, Stats.,
court found that it was not in Craig's best interests for it to hear the matter
and waived Craig into adult court.[1] He now appeals the waiver on the grounds
that it was granted subsequent to the juvenile court's imposition of a sanction
of ten days secure detention for the underlying violation, and argues that an
adjudication of the identical crime in adult court subjects him to double jeopardy. We disagree, and therefore affirm the
waiver.
On
December 13, 1994, after being adjudicated delinquent for criminal damage to
property, Craig was placed on formal supervision for a year.[2] As a condition of supervision, Craig was not
to have any further law violations.
However, on September 8, 1995, police executed a search warrant for
Craig's home and found Craig and two other individuals in the process of
dividing 100.8 grams of marijuana. As a
result, the State filed both delinquency and waiver petitions and requested the
imposition of sanctions.
A
sanctions hearing was held; Craig admitted to the violation, and the juvenile
court imposed a sanction of ten days secure detention. The sanction, however, was stayed and Craig
was allowed an opportunity to purge two days per week for five weeks. Craig successfully completed this purge and
did not serve any time in secure detention.
A
waiver hearing was subsequently held and the State's petition for waiver was
granted. Craig now appeals the waiver,
contending that because of the earlier imposition of sanctions by the juvenile
court for the same offense, the waiver into adult court subjects him to double
jeopardy.
The
question of whether an individual's double jeopardy protections have been
violated is a question of law and we therefore owe no deference to the lower
court's decision. See State
v. Sauceda, 168 Wis.2d 486, 492, 485 N.W.2d 1, 3 (1992). The double jeopardy clause is intended to
provide protection against: (1) a second prosecution for the same offense after
acquittal; (2) a second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense.
See id. The
instant case deals with a claim that the third protection has been
violated. See id.
Double
jeopardy bars additional punishment and successive prosecutions for the same
offense. See United States
v. Dixon, 509 U.S. 688, 698 (1993).
There is no dispute in the instant case that Craig's actions which led
to the charged crime of possession with intent to deliver a controlled
substance resulted in both a sanction by the juvenile court and the waiver into
adult court. However, the pivotal and
controlling question is whether the sanction imposed by the ch. 48, Stats., court is punishment. If it is not, double jeopardy concerns are
erased.
Section
48.355(6), Stats., 1993-94,[3]
provides in relevant part:
(6) Sanctions for violation of order. (a) If a child who has been
adjudged delinquent violates a condition specified in [the dispositional order]
the court may impose on the child one of the sanctions specified in par. (d)
....
....
(d) The court may order any one of the
following sanctions:
1. Placement of
the child in a secure detention facility ... for not more than 10 days ....
The
intent of the Children's Code in Wisconsin is to “substitute a program of
supervision, care and rehabilitation for the consequences of a delinquent's
behavior that would otherwise be criminal.”
State v. B.S., 162 Wis.2d 378, 392, 469 N.W.2d 860, 865
(Ct. App. 1991). The purpose of the
juvenile dispositional order is to “employ those means necessary to maintain
and protect the child's well-being” while assuring the care and treatment of
the child. See id.
at 392, 469 N.W.2d at 865‑66 (quoting § 48.355(1), Stats.). We noted in B.S. that since the state was permitted
to impose conditions with which the child must comply, it was also necessary
for the state to have some means to enforce those conditions. See id. at 393, 469
N.W.2d at 866. Our analysis in that
case further determined that § 48.355(6) is “devoid of language indicating that
its purpose is punitive.” See B.S.,
162 Wis.2d at 393, 469 N.W.2d at 866.
We further stated that to find juvenile sanctions punitive would be
inconsistent with the entire purpose of the Children's Code. See id. “The power of the juvenile court to impose
sanctions under sec. 48.355, Stats., is not the power to punish.” B.S., 162 Wis.2d at 393, 469
N.W.2d at 866.
The
imposition of a sanction is the power given a juvenile court to “coerce a
recalcitrant child to comply with the conditions stated in the court's dispositional
order.” See id. at
394, 469 N.W.2d at 866. Sanctions are
provided by the juvenile code to further the objectives of a specific
dispositional order and to give the court a means of control over the child
which would not otherwise exist.
Having
determined that the use of sanctions by a children's court is not intended as a
punitive action according to our analysis in B.S., we now
consider whether, under the facts here presented, Craig was nonetheless
subjected to the risk of successive punishments by the waiver as he claims.
The
juvenile court imposed ten days of secure detention on Craig as a sanction for
his violation of the dispositional order.
However, the sanction order also followed the parties' recommendation
that Craig be given an opportunity to purge the sanction, two days per week, if
he successfully complied with certain guidelines. In fact, Craig successfully completed the purge and did not spend
any time in secure detention. Based on
the foregoing, we conclude that Craig has not been subjected to double jeopardy
by the waiver into adult court.
Craig
claims that under our analysis, “[N]one of the consequences of a Juvenile Court
Proceeding would involve punishment; and, therefore, none of the consequences
of a Juvenile Court Proceeding would invoke the Double Jeopardy bar.” Craig then argues that this approach was
rejected by the Supreme Court in Breed v. Jones, 421 U.S. 519
(1975).
Craig
misreads Breed; the Breed Court's analysis is
distinguishable. The Supreme Court
there stated that it could not conclude that “a juvenile is not put in jeopardy
at a proceeding whose object is to determine whether he has committed acts that
violate a criminal law and whose potential consequences include both the
stigma inherent in such a determination and the deprivation of liberty for many
years.” Id. at 529
(emphasis added). A juvenile sanction
does not result in a “deprivation of liberty for many years.” See id. At most, a juvenile sanction under the
Children's Code may result in the loss of liberty for ten days. See § 48.355(6)(d)1, Stats., 1993‑94. In Craig's case, even that did not occur.[4]
The
order for ten days of secure detention was used here to “coerce [Craig] to
comply with the conditions stated in the court's dispositional order.” See B.S., 162 Wis.2d at
394, 469 N.W.2d at 866. The court
utilized the sanction to achieve a five-week period of compliance, and
presumably to assist Craig in beginning a pattern of conforming his behavior to
that required by the dispositional order.
The sanction did not operate as punishment; therefore, the waiver into
adult court did not subject Craig to double jeopardy.
By
the Court.—Order affirmed.
[1] While on formal
supervision, a delinquency petition was filed alleging that Craig had violated
§ 161.41(1m)(h)1, Stats., 1993-94
(possession of a controlled substance with intent to deliver). The State then filed a Petition for Waiver
of Jurisdiction as well as an underlying delinquency petition.
[2] Craig had
previously been placed on a year of formal supervision beginning January 13,
1994, after being found delinquent for reckless endangerment. Subsequent to that, Craig was placed on a
year of formal supervision beginning April 28, 1994, because of two counts of
disorderly conduct and one count of possession of marijuana. At the time of the petition which underpins
this case, Craig was in his third period of formal supervision.
[3] This section has
been repealed by 1995 Wis. Act 77, § 288.
The new section which contains many of the same provisions is § 938.355,
Stats. See 1995 Wis. Act 77, § 629. The changes do not affect our analysis of the pertinent portions
of § 48.355(6), Stats., 1993‑94.
[4] We note,
however, that we do not reach the question of whether the imposition of a
straight ten days of secure detention could be punitive rather than remedial in
its application. Rather, we follow our
reasoning in State v. B.S., 162 Wis.2d 378, 469 N.W.2d 860 (Ct.
App. 1991), that the sanctions statute is not intended to punish, and couple
that holding with the application of the sanction in this case in reaching our
conclusion.