State v. Daniel T.

Opinion Filed:	August 12, 2003
Submitted on Briefs:�	July 23, 2003


JUDGES:	Cane, C.J., Hoover, P.J., and Peterson, J.
�� Concurred:
�� Dissented:

Appellant
ATTORNEYS:	On behalf of the respondent-appellant, the cause was submitted on the brief of Leonard D. Kachinsky and Sisson & Kachinsky Law Office of Appleton.�

Respondent
ATTORNEYS:	On behalf of the petitioner-respondent, the cause was submitted on the brief of Mary M. Kerrigan-Mares, assistant district attorney, of Green Bay.�

COURT OF APPEALS

DECISION

DATED AND FILED

August 12, 2003

Cornelia G. Clark

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.�	03-1189	Cir. Ct. No.� 02-JV-000170
STATE OF WISCONSIN��			IN COURT OF APPEALS



In the Interest of Daniel T., a person Under the Age of 18: State of Wisconsin, �� Petitioner-Respondent, �� v. Daniel T., �� Respondent-Appellant.

�� APPEAL from orders of the circuit court for Brown County:� richard j. dietz, Judge.� Affirmed.�

�� Before Cane, C.J., Hoover, P.J., and Peterson, J.

�1�� HOOVER, P.J.[1] Daniel T. appeals a dispositional order and its subsequent order lifting a stay on the requirement that Daniel register as a sex offender pursuant to Wis. Stat. � 301.45.� Daniel contends that the trial court erred when it concluded it had no authority to impose the stay.� We conclude that the trial court lacks the authority to stay sex offender registration under � 301.45.� Thus, it was appropriate for the trial court to lift the stay and the order is affirmed.[2]

Background

�2�� The facts are undisputed.� A delinquency petition was filed against Daniel on September 30, 2002, alleging he had engaged in one count of sexual intercourse with a person under the age of thirteen and one count of burglary.� Daniel eventually admitted the sexual assault and the burglary charge was dismissed and read in at sentencing.

�3�� At the dispositional hearing on November 27, the court ordered Daniel be placed for one year in the Northwest Child and Adolescent Center.� As a condition of the placement, Daniel was to register with the State as a sex offender pursuant to Wis. Stat. � 301.45.� The trial court, however, stayed the registration for ninety days, pending determination of the registration statute�s applicability, even though the trial court questioned its authority to order the stay.� On April 15, 2003, the court ordered the stay on registration lifted and Daniel appeals.

Discussion

�4�� This appeal requires us to review and interpret sections of Wis. Stat. �� 301.45 and 938.34.� Interpretation of a statute is a question of law we review de novo.� In re Kendell G., 2001 WI App 95, �9, 243 Wis. 2d 67, 625 N.W.2d 918.� A court may have erroneously exercised its discretion if it based its orders on an erroneous interpretation of the law.� In re Adra B., 2000 WI App 86, �9, 234 Wis. 2d 406, 610 N.W.2d 144.

�5�� We note that the initial �stay� was ordered because Daniel requested a hearing under Wis. Stat. � 938.34(15m)(bm) to determine whether Wis. Stat. � 301.45 applied.� Obviously, the court was required to make such a determination because if the registration statute was inapplicable, an order requiring Daniel�s registration would be unlawful. At the March 24 hearing, however, Daniel conceded that he did not fulfill any of the � 301.45(1m) exemptions from registering as a sex offender.� However, he contended that the court could continue the stay based on Wis. Stat. � 938.34(16), which allows a stay of a dispositional order.� The trial court disagreed, as do we.

�6�� Wisconsin Stat. � 301.45(1g)(a) requires any person �adjudicated delinquent � for a sex offense� to comply with the section�s reporting requirements.� This dovetails with Wis. Stat. � 938.34(15m)(bm)�s requirement that �If the juvenile is adjudicated delinquent on the basis of a violation[] � of s. � 948.02(1) � the court shall require the juvenile to comply with the reporting requirements under s. 301.45 �.�� Daniel�s sexual assault violation was a violation of � 948.02(1).

�7�� Wisconsin Stat. � 938.34(16) allows the court to stay �the execution of the dispositional order contingent on the juvenile�s satisfactory compliance with any conditions that are specified in the dispositional order �.�� Daniel argues that there is ambiguity when Wis. Stat. �� 301.45, 938.34(15m)(bm), and 938.34(16) are applied together.� We disagree.

�8�� If there is any inconsistency among these three statutes, it would be that Wis. Stat. �� 301.45 and 938.34(15m)(bm) appear to conflict with � 938.34(16).� The first two require registration, but the latter might allow a court to circumvent that requirement with a stay.� When statutes on the same subject conflict, the more specific one controls.� Nicolet Minerals Co. v. Town of Nashville, 2002 WI App 50, �17, 250 Wis. 2d 831, 641 N.W.2d 497.

�9�� Here, the more specific statute is the mandatory registration of Wis. Stat. � 301.45.� If � 301.45 did not exist, a different sanction could replace it for adjudicatory purposes under Wis. Stat. � 938.34(15m)(bm).� In other words, when the court is confronted with a juvenile sex offender, the general juvenile justice statute refers courts to the specific statute of � 301.45 to discover the penalty.� Section 301.45(1m) is very specific about when the registration requirement is inapplicable�no part of � 301.45 allows registration to be superceded by a judicial stay.� Moreover, � 301.45(5)(a) makes the registration requirements applicable for fifteen years after adjudication,[3] with no mention of the court�s ability to toll this time limit by issuing a stay.� Thus, a stay may not be issued to circumvent � 301.45 registration requirements.

�10�� Alternatively, we disagree that Wis. Stat. � 938.34(16) would allow a trial judge to stay a condition of a dispositional order.[4]� The statute allows the dispositional order to be stayed provided the stay is contingent on the juvenile fulfilling the conditions set forth in the original dispositional order.� Here, the disposition is the year-long placement; registration as a sex offender is a condition �specified in the dispositional order �.� If a stay were issued, the most it could do would be to stay Daniel�s placement at Northwest Child and Adolescent Center.� Even then, he would have to fulfill the registration condition to keep the full disposition in abeyance.

�� By the Court.�Orders affirmed.

��

[1] This case was converted to a three-judge appeal by order dated August 8, 2003.

[2] Daniel only argues regarding the order lifting the stay.� He alleges no other errors with regard to the dispositional order itself.

[3] There are actually several subsections, but they simply refer to different dates on which to start the fifteen-year �clock.�

[4] We also disagree that the court can stay a part or single condition of a dispositional order.� Wisconsin Stat. � 938.34(16) allows a stay of �the execution of the dispositional order �.�� It does not say that a stay of a section of the dispositional order or that a stay of conditions of the order is allowed.� We acknowledge that in State v. Kendell G., 2001 WI App 95, ��11, 16, 243 Wis. 2d 67, 625 N.W.2d 918, we wrote that the court might stay all or part of a disposition.� However, the question in Kendell G. was whether, when there is a stay, counting the one-year maximum placement begins on the day the order is entered or the day the stay is lifted.� Moreover, there was no dispute over whether the court could stay the dispositional order.� Consequently, the interpretation of how much of an order � 938.34(16) allows to be stayed is dicta.

Case No.:	03-1189
Complete Title of Case:		�Petition for review filed