DAVID T. PROSSER, J.
¶ 1 This is a review of an unpublished decision of the court of appeals.
¶ 2 The case involves the prosecution of a juvenile offender in adult court.
¶ 3 A juvenile who is charged in adult court with a violation of one of the offenses enumerated in § 938.183(1) is entitled to a preliminary examination under Wis. Stat. § 970.032(1). The court must find that "there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183(1)(a), (am), (ar), (b), or (c), whichever is applicable," if the adult court is to retain exclusive original jurisdiction of the juvenile. Wis. Stat. § 970.032(1) (emphasis added).
¶ 4 The issue in this case is whether the record demonstrates that the adult court made a sufficient probable cause determination in a § 970.032(1) preliminary hearing when it said that "there is probable cause to believe a felony has been committed."
¶ 5 Cortez Lorenzo Toliver (Toliver) was 16 years old when he was charged with attempted first-degree intentional homicide and possession of a dangerous weapon by a person under 18 after shooting Dontai Gorman (Gorman) in the back. As noted, attempted first-degree intentional homicide is an offense enumerated in Wis. Stat. § 938.183(1)(am). Possession of a dangerous weapon by a person under 18 — a misdemeanor — is not. At the preliminary hearing, Gorman discussed the details of the shooting, and an investigator with the Racine Police Department testified that Gorman had identified Toliver as the shooter with certainty. The circuit court stated that "there is probable cause to believe a felony has been committed" and ordered a bindover.
¶ 6 Toliver later pled guilty to other charges. After sentencing, Toliver appealed and argued in his reply brief
¶ 7 Although Toliver raises an argument regarding jurisdiction, we will focus on a narrower issue that disposes of the case. The question we address is whether the record demonstrates that the circuit court made the requisite finding of probable cause to believe Toliver committed attempted first-degree intentional homicide as required by Wis. Stat. § 970.032(1).
¶ 8 We conclude the following.
¶ 9 First, when a juvenile is charged in adult court with a violation of one of the offenses enumerated in § 938.183(1), the juvenile is entitled to a preliminary examination under Wis. Stat. § 970.032(1) at which the court must find that "there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under
¶ 10 Second, if an adult court's determination of probable cause in a preliminary examination under Wis. Stat. § 970.032 relates to an unspecified felony and the facts are undisputed, an appellate court may review the record independently to determine whether the court did find "probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183(1)(a), (am), (ar), (b), or (c), whichever is applicable." Wis. Stat. § 970.032(1). A reviewing court may inspect the record ab initio to determine whether there is sufficient evidence to support a finding of probable cause. Cf. State v. Roger Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d 601 (1981). The principal purpose of the specific probable cause finding is to ensure that the adult court has exclusive original jurisdiction over the juvenile. This purpose is served if, under the totality of the circumstances, the court implicitly finds probable cause for a Wis. Stat. § 938.183(1) crime charged in the complaint, and the record demonstrates there is probable cause for that specific offense.
¶ 11 Third, although the articulation of the probable cause determination in this case should have been more precise, the preliminary hearing transcript demonstrates that the circuit court found probable cause that Toliver committed attempted first-degree intentional homicide. Gorman testified that Toliver held a gun to his head, threatened to shoot him, and then shot him in the back. Toliver did not introduce any evidence of mitigating circumstances. The circuit court had the complaint and the information, both of which listed Toliver's date of birth at the top and contained only one felony charge and a charge for possession of a dangerous weapon by a person under 18. Toliver did not object that the court's probable cause be more specific, and the court did not discharge Toliver as would be required if it failed to find probable cause for the specific offense. Thus, the record demonstrates that when the court found probable cause to believe Toliver committed a felony, the felony to which the court referred was attempted first-degree intentional homicide, the only felony with which Toliver was charged.
¶ 12 Because we conclude that the circuit court made the finding required by Wis. Stat. § 970.032(1), we need not reach the jurisdictional issue. See State v. Castillo, 213 Wis.2d 488, 492, 570 N.W.2d 44 (1997) (citation omitted) ("An appellate court should decide cases on the narrowest possible grounds."). Accordingly, the bindover and prosecution of Toliver in adult court were not improper.
¶ 13 According to the complaint, on April 11, 2009, Toliver called Gorman and asked him to play dice so that Toliver could try to win back money that he lost to Gorman two days earlier. They met and shot dice for a couple of hours, during which Gorman won almost all of Toliver's money. According to Gorman, Toliver said he needed his money to get to Milwaukee and demanded that Gorman return it. Toliver then produced a handgun and
¶ 14 About 8:56 p.m., City of Racine police officers were dispatched to the location of the shooting in Racine. When Investigator Don Nuttall (Investigator Nuttall) arrived, he found Gorman on the sidewalk. Gorman told Investigator Nuttall that "Cortez did this over a dice game." Investigator Nuttall found Toliver's phone at the scene of the incident and called Toliver's mother. Soon after Investigator Nuttall spoke with Toliver's mother on April 12, Toliver called and agreed to come to the Racine Police Department. When he was informed of his Miranda
¶ 15 Gorman identified Toliver in a photograph array and said that he was certain that it was Toliver who shot him. On April 13, 2009, the State filed a complaint charging Toliver with attempted first-degree intentional homicide contrary to Wis. Stat. §§ 940.01(1)(a), 939.50(3)(a), and 939.32. The complaint also charged Toliver with possession of a dangerous weapon by a person under 18 years of age contrary to Wis. Stat. §§ 948.60(2)(a) and 939.51(3)(a).
¶ 16 The Racine County Circuit Court, Charles Constantine, Judge, held a preliminary hearing on May 7, 2009. Gorman testified by telephone from a hospital and said that Toliver shot him in the back and that as a result, he was paralyzed from the waist down. Gorman testified:
Gorman stated that he was unarmed and that during the incident, Toliver "had the gun to [Gorman's] head." Gorman recounted the details of the shooting:
¶ 17 Investigator Nuttall also testified that Gorman picked Toliver's picture out of a photograph array and identified him as the shooter with certainty. At the end of Investigator Nuttall's testimony, the State moved for bindover, and the defense responded with a general objection: "Object to bindover." The court stated, "I would
¶ 18 On July 28, 2009, Toliver filed a petition for reverse waiver pursuant to Wis. Stat. § 970.032(2).
¶ 19 On November 2, 2009, the Racine County Circuit Court, Faye M. Flancher, Judge,
The court also denied the motion for reverse waiver.
¶ 20 On June 3, 2011, Toliver filed a Plea Questionnaire/Waiver of Rights form in which he pled guilty to first-degree reckless injury while armed and attempted
¶ 21 On July 27, 2011, Toliver filed a notice of intent to pursue postconviction relief. In his postconviction motion filed on December 14, 2011, Toliver requested sentence modification. The circuit court denied the postconviction motion in an order filed January 23, 2012. Toliver filed a notice of appeal on January 31, 2012.
¶ 22 On appeal, Toliver argued that the circuit court erred in denying his motion for reverse waiver and erroneously exercised its discretion with regard to the sentence it imposed. State v. Toliver, No. 2012AP393-CR, unpublished slip op., ¶ 1, 2013 WL 1337954 (Wis.Ct.App. Apr. 4, 2013). In addition, Toliver argued in his reply brief that the circuit court did not comply with Wis. Stat. § 970.032 because it did not articulate a specific finding that there was probable cause to believe Toliver committed the crime with which he was charged. Id., ¶ 29 n. 5. The court of appeals stated:
Id. The court of appeals affirmed the circuit court's judgment of conviction and order denying Toliver's postconviction motion. Id., ¶ 29.
¶ 23 Toliver petitioned this court for review, which we granted on December 17, 2013.
¶ 24 Essentially, Toliver argues that the circuit court's probable cause finding was insufficient under Wis. Stat. § 970.032(1) to support the bindover, depriving the adult court of exclusive original jurisdiction. When the principal facts are not in
¶ 25 This case centers around the preliminary hearing for a juvenile in adult court. Thus, we begin with a brief discussion of the Juvenile Justice Code and the different probable cause requirements for adults and juveniles in adult court.
¶ 26 The Juvenile Justice Code — Wis. Stat. ch. 938 — became effective on July 1, 1996, after a substantial revision of the former Children's Code. State v. Kleser, 2010 WI 88, ¶ 42, 328 Wis.2d 42, 786 N.W.2d 144; 1995 Wis. Act 77. Chapter 938 is intended to address juvenile delinquency and to "equip juvenile offenders with competencies to live responsibly and productively." Wis. Stat. § 938.01(2). Under Wis. Stat. ch. 938, juvenile courts generally adjudicate cases against delinquent juveniles ages ten and older. Wis. Stat. § 938.12(1). However, adult courts "have exclusive original jurisdiction over" the crimes enumerated in Wis. Stat. § 938.183(1), including attempted first-degree intentional homicide. Wis. Stat. § 938.183(1)(am).
¶ 27 Wisconsin Stat. § 970.03 is the general statute on preliminary examinations in circuit court. "A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." Wis. Stat. § 970.03(1) (emphasis added). This statute applies to adults charged with felonies, and to juveniles charged with felonies after they have been waived by the juvenile court into adult court. The main purpose of this preliminary examination is "to protect the accused from hasty, improvident, or malicious prosecution and to discover whether there is a substantial basis for bringing the prosecution and further denying the accused his right to liberty." State v. John Williams, 198 Wis.2d 516, 527, 544 N.W.2d 406 (1996) (quoting Bailey v. State, 65 Wis.2d 331, 344, 222 N.W.2d 871 (1974)).
¶ 28 By contrast, the preliminary examination under Wis. Stat. § 970.032 is for juveniles prosecuted under original jurisdiction in adult court. This preliminary examination has a manifest purpose beyond assuring that the prosecution against a juvenile is well grounded. It is intended to determine whether the adult court has exclusive original jurisdiction over a juvenile who is alleged to have committed a
¶ 29 The juvenile "has a strong incentive... to negate that specific offense during the preliminary examination — to prevent the state from prevailing on the specific offense charged, or possibly, to deprive the criminal court of its `exclusive original jurisdiction.'" Kleser, 328 Wis.2d 42, ¶ 60, 786 N.W.2d 144. Moreover, the juvenile may not use a reverse waiver hearing to contradict the previous finding of probable cause. Id., ¶ 68.
¶ 30 As Kleser suggests, the specific probable cause determination is designed to ensure that there is probable cause that the juvenile committed one of the crimes in § 938.183(1), so that the juvenile is tried in the correct court. Probable cause to support a bindover exists in such a hearing when there is a reasonable probability "that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183(1)(a), (am), (ar), (b) or (c)." Wis. Stat. § 970.032(1); cf. Dunn, 121 Wis.2d at 398, 359 N.W.2d 151; Roger Williams, 104 Wis.2d at 22-23, 310 N.W.2d 601.
¶ 31 For Toliver, the specific crime for which the circuit court needed to find probable cause was attempted first-degree intentional homicide. See Wis. Stat. § 938.183(1)(am). A person commits attempted first-degree intentional homicide when he attempts to "cause[] the death of another human being with intent to kill that person." Wis. Stat. §§ 940.01(1)(a), 939.32. We turn now to Toliver's preliminary hearing to determine whether the record demonstrates that the circuit court made the required probable cause finding.
¶ 32 It is abundantly clear from the transcript of the preliminary hearing that there was probable cause to believe Toliver attempted first-degree intentional homicide. Gorman testified that Toliver threatened to shoot him, held a gun to his head, and shot him in the back as he tried to get away. Investigator Nuttall testified that Gorman identified Toliver as the shooter with certainty. Thus, there was a reasonable probability that Toliver attempted to cause the death of Gorman with the intent to kill him. Because probable cause for the specific charge existed; because attempted first-degree intentional homicide was the only felony charged in the complaint; and because Toliver did not introduce any evidence to support a reduced charge, we conclude that when Judge Constantine found probable cause to believe Toliver committed a felony, he made the requisite finding under Wis. Stat. § 970.032 that there was probable cause to believe Toliver committed attempted first-degree intentional homicide.
¶ 33 When Judge Constantine concluded that there was probable cause to believe a felony had been committed, he referenced the shooting as well as an information he had been given that contained the charges. He said, "You have identification. You have a shooting. Bindover is ordered. I do have an information, two counts." The first count in the information was the only felony alleged: attempted first-degree intentional homicide. The second count was
¶ 34 This might be a different case if Toliver had introduced evidence of mitigating circumstances to support a charge that was not consistent with the exclusive original jurisdiction of the adult court. Toliver had a right and "a strong incentive" to offer evidence "to negate that specific offense during the preliminary examination." Kleser, 328 Wis.2d 42, ¶ 60, 786 N.W.2d 144. He also had the right to request a specific probable cause finding or discharge of the juvenile. Had he done any of these things, it would be difficult to say that Judge Constantine found probable cause for attempted first-degree intentional homicide without saying more. This would be a different case if the judge had specifically stated that he did not find probable cause to believe Toliver committed attempted first-degree intentional homicide. However, in the absence of any mitigating evidence or finding of lack of probable cause, we conclude that the circuit court's probable cause determination related to the felony charged and that the court's finding complied with Wis. Stat. § 970.032.
¶ 35 While the record demonstrates that Judge Constantine found probable cause to believe that Toliver committed attempted first-degree intentional homicide, his finding should have been more precise.
¶ 36 When an adult court conducts a preliminary hearing for a juvenile pursuant to Wis. Stat. § 970.032(1), the court should state specifically on the record whether it finds probable cause to believe that the juvenile committed the offense
The decision of the court of appeals is affirmed.
SHIRLEY S. ABRAHAMSON, C.J. (dissenting).
¶ 37 The legislature has declared that a circuit court must make particular findings in a preliminary hearing in order to establish original adult court jurisdiction over a juvenile.
¶ 38 Section 970.032(1) reads as follows:
Wis. Stat. § 970.032(1) (emphasis added).
¶ 39 At the defendant's preliminary hearing, the circuit court failed to make the required statutory finding. Rather, the circuit court stated the following:
¶ 40 The circuit court found probable cause to believe "a felony" had been committed. "A felony" could refer to any number of crimes, not all of which would
¶ 41 The majority opinion rewrites the transcript of the preliminary hearing to conclude that the circuit court made the required findings. The majority opinion declares, in effect, that the circuit court did not mean what it said on the record.
¶ 42 Unlike the majority opinion, I cannot conclude that the circuit court complied with Wis. Stat. § 970.032(1). If a circuit court fails to make the finding required by Wis. Stat. § 970.032(1), the statute provides a remedy; it mandates that the circuit court "shall order that the juvenile be discharged" (emphasis added). See also State v. Kleser, 2010 WI 88, ¶ 64, 328 Wis.2d 42, 786 N.W.2d 144.
¶ 43 This court should follow the statute. See, e.g., State v. Romero-Georgana, 2014 WI 83, ¶ 85, ___ Wis.2d ___, 849 N.W.2d 668 (Bradley, J., dissenting); State v. Douangmala, 2002 WI 62, ¶ 4, 253 Wis.2d 173, 646 N.W.2d 1 (when a statute "expressly sets forth the remedy to be granted" if a circuit court "fails to advise a defendant about deportation consequences as required by [the statute]," the court should grant the requested remedy).
¶ 44 For the foregoing reasons, I dissent.
¶ 45 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
We need not address either question because we conclude that although the court's articulation of its findings at the preliminary hearing was not perfect, the record demonstrates that the circuit court found the specific probable cause required by Wis. Stat. § 970.032. Thus, our analysis focuses on the preliminary hearing.
Substantial confusion exists in the case law on the meaning of the terms "jurisdiction," "subject matter jurisdiction," "jurisdictional error," and "competence" of the courts. The jurisprudence concerning subject matter jurisdiction and a circuit court's competence to exercise its subject matter jurisdiction is "murky at best." See State v. Bush, 2005 WI 103, ¶ 16, 283 Wis.2d 90, 699 N.W.2d 80. See also Xcel Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶¶ 62-65, 349 Wis.2d 234, 833 N.W.2d 665 (Abrahamson, C.J., concurring); Miller Brewing Co. v. LIRC, 173 Wis.2d 700, 705 n. 1, 495 N.W.2d 660 (1993); Shopper Advertiser, Inc. v. DOR, 117 Wis.2d 223, 237, 344 N.W.2d 115 (1984) (Abrahamson, C.J., concurring in part and dissenting in part).
Compare, e.g., Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 8, 273 Wis.2d 76, 681 N.W.2d 190 ("[T]he subject matter jurisdiction of the circuit courts cannot be curtailed by state statute.") with majority op., ¶ 29 ("The juvenile `has strong incentive ... to negate that specific offense during the preliminary hearing — to prevent the state from prevailing on the specific offense charged, or possibly, to deprive the criminal court of its "exclusive original jurisdiction."'") (citing State v. Kleser, 2010 WI 88, ¶ 60, 328 Wis.2d 42, 786 N.W.2d 144) (emphasis added).