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  • WisBar News
    November 13, 2019

    Tried as Adults: Supreme Court Clarifies ‘Once Waived, Always Waived’ Rule

    In the first substantive decision of the term, a four-justice majority clarified that once a juvenile is waived into adult court in one county, adult criminal courts in other counties always have jurisdiction over subsequent allegations of state law crimes.

    Joe Forward

    Juvenile Crime

    Nov. 13, 2019 – The Wisconsin Supreme Court has ruled that all circuit courts have original adult-court jurisdiction, regardless of county, once a juvenile is waived into adult court, a clarification of the so-called “once waived, always waived rule.”

    Matthew Hinkle, who was waived into adult court by the Milwaukee County Circuit Court for crimes committed when he was 16 years old, argued that the “once waived, always waived” rule, under Wis. Stat. section 938.183(1), is confined to individual counties.

    Hinkle argued he could not be automatically waived into adult court for a subsequent crime committed as a juvenile unless previously waived in the same county. Fond Du Lac County waived him into adult court based on the waiver in Milwaukee County.

    But in State v. Hinkle, 2019 WI 96 (Nov. 12, 2019), the Wisconsin Supreme Court (4-2) concluded that that the Fond du Lac County Circuit Court “properly relied on Milwaukee’s waiver to move Hinkle” from juvenile jurisdiction to adult jurisdiction.

    “We hold Wis. Stat. § 938.183(1) conferred exclusive original adult jurisdiction over Hinkle based on Milwaukee County Circuit Court’s prior waiver,” wrote Justice Rebecca Bradley for the majority. “The text of the statute does not impose a county-specific limitation on the rule commonly referred to as ‘once waived, always waived.’”

    Once Waived, Always Waived

    Section 938.183(1) says adult criminal courts have exclusive original jurisdiction over juveniles under certain circumstances, including when a juvenile court has waived its jurisdiction and the juvenile is subsequently convicted in adult court following waiver, or the prior case that was waived into adult criminal court is still pending.

    Hinkle was charged in both Fond du Lac and Milwaukee counties after he stole a car in Milwaukee County and led police on a high speed car chase through Fond du Lac County, when he was 16 years old. The chase ended when he crashed the car.

    He was waived into adult court in Milwaukee County, and charged with robbery with use of force and taking and operating a motor vehicle without consent. While that case was pending, the Fond du Lac Circuit Court waived Hinkle into adult court there.

    The Fond du Lac Circuit Court ruled that under the “once waived, always waived” rule, Hinkle must be prosecuted as an adult since he was being tried as an adult in Milwaukee County, and waived him into adult court without a hearing. Thus, Hinkle was charged on 18 additional counts related to the high speed chase, in adult court.

    Under a plea deal in Fond du Lac County, Hinkle was sentenced to six years in prison with three years of extended supervision, followed by two years of probation.

    A postconviction motion followed. Hinkle sought to vacate his convictions, withdraw his plea, and transfer his cases back to juvenile court. The circuit court rejected Hinkle’s petition and the court of appeals affirmed. Recently, the supreme court affirmed.

    “Whenever a juvenile court exercising jurisdiction under ch. 938 (or ch. 48) has previously waived a juvenile – who is alleged to be in violation of any state law and that juvenile is either convicted or the criminal proceeding is still pending – courts of criminal jurisdiction anywhere in Wisconsin have exclusive original jurisdiction,” Justice R. Bradley wrote for the four-justice majority.


    Justice Rebecca Dallet dissented, joined by Justice Ann Walsh Bradley, concluding the Milwaukee County waiver over Hinkle “did not confer exclusive original jurisdiction on a Fond du Lac County Circuit Court hearing criminal cases of adult defendants.”

    The dissenting opinion said the statute is ambiguous, and applied the rules of statutory construction to conclude that “once waived, always waived” is restricted by county.

    The dissent noted that the Juvenile Justice Code requires courts to make an “individualized assessment” of what is in the best interests of the juvenile and the public.

    Justice Brian Hagedorn, the newest member of the court, did not participate in the case.

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