State v. M. D. B., Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 6, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP620 Cir. Ct. No. 2022JV981

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE INTEREST OF M.D.B., JR., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-APPELLANT,

V.

M.D.B., JR.,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
NIDHI KASHYAP, Judge. Affirmed.
No. 2023AP620

¶1 DONALD, P.J.1 The State appeals from an order dismissing a
delinquency petition filed against M.D.B., Jr. (hereinafter M.D.B.). The State
contends that the circuit court erroneously exercised its discretion when it
dismissed the petition with prejudice. For the reasons discussed below, we reject
the State’s argument and affirm.

BACKGROUND

¶2 On November 9, 2022, the State filed a delinquency petition
charging M.D.B. with operating a motor vehicle without the owner’s consent.
According to the petition, on October 17, 2022, M.D.B. was arrested for
intentionally taking and driving a white Hyundai Tucsan without the owner’s
consent.

¶3 Relevant to this appeal, the delinquency petition explained that the
State had received a referral for the October 17 incident on October 18, 2022.
After reading the police reports that accompanied the referral, the prosecutor
determined that further investigation or more complete reports would be necessary
in order to charge the case. The referral was then converted to a “daily order-in
case,” and the District Attorney’s Office had twenty days to make a charging
decision, ending on November 7, 2022. See WIS. STAT. § 938.25(2)(a).

¶4 The delinquency petition further explained that at the same time the
referral for the October 17 incident was received, the State received information
that M.D.B. had left a court-ordered placement on October 13, 2022, and returned

1
This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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No. 2023AP620

in a stolen vehicle. Several hours later, M.D.B. left again in violation of the court
order. The State expected a referral from the October 13 incident to be
forthcoming and the State intended to issue the charges from the October 13 and
October 17 incidents in a single petition or at least simultaneously, so that the
matters could be resolved efficiently. While the State was waiting for the second
referral, the prosecutor missed the twenty-day charging deadline.

¶5 On November 30, 2022, at the initial hearing on the delinquency
petition, M.D.B. requested that the petition be dismissed with prejudice because it
was filed outside of the twenty-day deadline. After hearing argument, the circuit
court, at the request of the State, gave the parties an opportunity to brief the issue.
The court set a briefing schedule with M.D.B. to file his brief by December 7,
2022, and the State to respond by December 14, 2022. The court set a date of
December 20, 2022, for a decision.

¶6 As ordered, M.D.B. filed a brief on December 7, 2022. The State,
however, did not file a brief or any other document by the December 14, 2022
deadline.

¶7 At the hearing on December 20, 2022, M.D.B. and the circuit court
received an unfiled copy of the State’s brief. The State indicated that the delay
was due to the research that it needed to do. The circuit court responded that if the
research was more complicated than the State anticipated, the State could have
provided a letter to the court and the court would have considered extending the
deadline. In order to give the State’s arguments due consideration, the court
adjourned the case for an oral ruling on January 6, 2020.

¶8 At the hearing on January 6, 2020, the circuit court noted that the
State’s response was not in the court file. The court stated that it had retained an

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No. 2023AP620

unfiled copy that it had previously received. The State apologized for its mistake
and electronically filed its brief.

¶9 After citing the relevant statutes, the applicable case law, and
discussing the facts of the case, the circuit court rendered an oral ruling granting
M.D.B.’s motion to dismiss the petition with prejudice. In pertinent part, the
circuit court explained:

The State … received a referral from City of Greenfield in
a timely fashion. They were waiting for an unrelated
referral from another law enforcement agency for a
separate incident, and it may have been more convenient
for the State to file charges at the same time, but they’re not
required to do so. And I don’t think that the desire to file
charges at the same time is a good excuse to miss a
deadline. The delay in the timely filing of a response by
the December 14th deadline also makes it more difficult for
me to find that the State is acting in good faith here.

….

…The State’s explanation is not really adequate
here. It essentially amounts to: “We were waiting for
some paperwork on another case, and we forgot to file this
case when the paperwork didn’t come in on time.” It is
important for [M.D.B.] to be held responsible for his
alleged acts, but it’s equally important, according to the
Legislature, that the Court enforce his rights. And the State
has not given me a good enough reason to find good cause
to extend the deadline. The appropriate remedy is to
dismiss this case with prejudice. If I did otherwise, I would
give the State a free pass to miss deadlines without regard
for the juvenile’s legal rights.

I did not take this decision lightly. I want everyone
to know that. Because there’s an alleged victim here who
suffered a loss, and that victim does deserve justice. But in
order for that victim and other victims to get the justice
they deserve, the State has got to comply with its statutorily
imposed deadlines. So this case will be dismissed.

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No. 2023AP620

¶10 Subsequently, on March 26, 2023, a written order was entered
dismissing the petition with prejudice. The State now appeals.2 Additional
relevant facts are referenced below.

DISCUSSION

¶11 On appeal, the State contends that the circuit court erroneously
exercised its discretion when it dismissed the petition with prejudice.

¶12 Generally, a circuit court’s decision to dismiss an action is reviewed
for an erroneous exercise of discretion. See Haselow v. Gauthier, 212 Wis. 2d
580, 590-91, 569 N.W.2d 97 (Ct. App. 1997). We will uphold a discretionary
decision if the circuit court “has examined the relevant facts, applied a proper
standard of law, and, using a demonstrated rational process, reached a conclusion
that a reasonable judge could reach.” Id. at 591 (citation omitted). When we
review a discretionary decision, we may search the record for reasons to sustain a
circuit court’s exercise of discretion. See Hughes v. Hughes, 223 Wis. 2d 111,
120, 588 N.W.2d 346 (Ct. App. 1998).3

2
After filing a notice of appeal, the State failed to timely file its statement on transcript
and docketing statement, resulting in delinquency orders. Additionally, the State filed its brief-in-
chief one day late.
3
The parties in this case both assert that the standard of review is whether the circuit
court properly exercised its discretion. As a result, this opinion analyzes whether the circuit court
properly exercised its discretion. We note, however, that in F.E.W. v. State, 143 Wis. 2d 856,
858, 860, 422 N.W.2d 893 (Ct. App. 1988), which both parties address, this court independently
reviewed whether good cause existed to permit the filing of a petition. The parties do not explain
why the standard of review is different here. Nonetheless, even if we independently examined
whether good cause existed based on the undisputed facts, we conclude that the result would
remain the same as we agree with the circuit court’s analysis and conclusions.

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No. 2023AP620

¶13 The procedure for initiating delinquency proceedings against a
juvenile is set forth in WIS. STAT. §§ 938.24 and 938.25. As a preliminary matter,
we observe that the State does not dispute that the petition in this case was filed
two days late in violation of the statutorily required twenty-day time period in
§ 938.25(2)(a).

¶14 If a petition is not timely filed, a circuit court “may” extend the time
period “upon a showing of good cause under [WIS. STAT. §] 938.315.” WIS. STAT.
§ 938.25(2)(a). Sec 938.315 in turn provides in pertinent part that:

(2) CONTINUANCE FOR GOOD CAUSE. A continuance may
be granted by the court only upon a showing of good cause
… on the record and only for so long as is necessary, taking
into account the request or consent of the representative of
the public under s. 938.09 or the parties, the interests of the
victims and the interest of the public in the prompt
disposition of cases.

.…

(3) CONSEQUENCES OF FAILURE TO ACT WITHIN TIME
PERIOD. Failure by the court or a party to act within any
time period specified in this chapter does not deprive the
court of personal or subject matter jurisdiction or of
competency to exercise that jurisdiction…. If the court or a
party does not act within a time period specified in this
chapter, the court, while assuring the safety of the juvenile,
may grant a continuance under sub. (2), dismiss the petition
with or without prejudice, release the juvenile from secure
or nonsecure custody or from the terms of a custody order,
or grant any other relief that the court considers
appropriate.

WIS. STAT. § 938.15(2), (3).

¶15 The State acknowledges that the circuit court identified the correct
legal standard, as set forth in F.E.W. v. State, 143 Wis. 2d 856, 422 N.W.2d 893
(Ct. App. 1988). The State, however, contends that the circuit court “failed to

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No. 2023AP620

apply [the F.E.W. standard] to the facts of the case when it applied only a single
factor without any discernable reason.”

¶16 Similar to this case, in F.E.W., the State filed a petition after a
statutory deadline had expired pursuant to WIS. STAT. § 48.25(2)(a).4 F.E.W., 143
Wis. 2d at 857. In F.E.W., the district attorney received apprehension and crime
reports relating to F.E.W. and sent them back to the police department with a
request for additional information. Id. at 858. The established procedure was to
place the material in a basket in the district attorney’s office designated for the
police department. Id. The basket was emptied twice a day by a detective from
the police department. Id. Pursuant to the established procedure, a detective
picked up the request for information in F.E.W.’s case along with other papers in
the basket. Id. However, all of the papers were inadvertently left in the circuit
court and eventually observed there by one of the prosecutors. Id. As a result, the
petition was filed late. Id. at 860.

¶17 In determining whether the State established “good cause” to permit
the late filing of the petition, this court stated “the paramount consideration” is the
best interest of the child. Id. at 861. In addition, this court stated that “additional
relevant factors to a ‘good cause’ determination are: (1) that the party seeking the
enlargement of time has acted in good faith; (2) that the opposing party has not
been prejudiced; and (3) whether the dilatory party took prompt action to remedy
the situation.” Id. Based on these factors, F.E.W. concluded that the State
established good cause. Id. at 862.

4
WISCONSIN STAT. § 48.25(2)(a) was the predecessor statute to WIS. STAT.
§ 938.25(2)(a), which is at issue in this case. See 1995 Wis. Act 77.

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No. 2023AP620

¶18 First, contrary to the State’s suggestion, F.E.W. does not specifically
state that each and every one of the factors must be addressed. Second, even if
F.E.W. requires an analysis of each of the factors, we conclude that the circuit
court here properly addressed each factor.

¶19 In its decision, the circuit court found that the State’s “desire to file
charges at the same time” was not “a good excuse to miss a deadline.” The circuit
court further observed that “[t]he delay in the timely filing of a response [brief] ...
by the … deadline also makes it more difficult for me to find that the State is
acting in good faith here.” This addressed whether the State acted in good faith
and whether the State had acted promptly, which it did not. In addition, the circuit
court also addressed the best interests of M.D.B. and prejudice. The court
acknowledged that “[i]t is important for [M.D.B.] to be held responsible for his
alleged acts, but it’s equally important, according to the Legislature, that the
[c]ourt enforce his rights.” The court went on to state that refusing to dismiss the
case “would give the State a free pass to miss deadlines without regard for the
juvenile’s legal rights.” Thus, we reject the State’s argument that the circuit court
failed to properly apply the “F.E.W. standard.”

¶20 Finally, the State contends that the circuit court erred by concluding
that the appropriate remedy was to dismiss the case with prejudice. The State
accuses the circuit court of dismissing the case “simply because there is a statutory
mechanism for it,” and points to a criminal case, State v. Davis, 2001 WI 136, 248
Wis. 2d 986, 637 N.W.2d 62, in support.

¶21 In Davis, the circuit court granted the defendant’s motion to dismiss
a criminal case with prejudice because the State had failed to bring the case to trial
within the 120-day time period set forth in WIS. STAT. § 971.11(2) (1999-2000).

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No. 2023AP620

Davis, 248 Wis. 2d 986, ¶1. Our supreme court reversed concluding that the
circuit court had discretion to dismiss the case with or without prejudice; however,
the circuit court failed to properly exercise its discretion. Id., ¶5. In regards to
whether the circuit court had properly exercised its discretion, our supreme court
stated that the circuit court “appears to have decided that WIS. STAT. § 971.11(7)
requires dismissal of a criminal case with prejudice as a matter of law” and “seems
to have further concluded that unless the present case was dismissed with
prejudice, an accused would have no remedy[.]” Davis, 248 Wis. 2d 986, ¶33.
Our supreme court stated that the circuit court’s rationale and application of that
rationale to the facts “come close to requiring dismissal with prejudice in every
criminal case when a district attorney fails to bring a case on for trial within the
120-day time period[.]” Id.

¶22 Unlike in Davis, here, there is no indication on the record that the
circuit court believed that its only option was to dismiss the case with prejudice.
Rather, as discussed above, in this case, the circuit court discussed the specific
facts of this case and dismissed the petition based on its consideration of the
relevant factors.

¶23 Therefore, we reject the State’s arguments and conclude that the
circuit court did not erroneously exercise its discretion in dismissing the petition.
Accordingly, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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