                                                                    2014 WI 85

                  SUPREME COURT            OF    WISCONSIN
CASE NO.:               2012AP393-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Cortez Lorenzo Toliver,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 348 Wis. 2d 263, 831 N.W.2d 824
                                  (Ct. App. 2013 – Unpublished)

OPINION FILED:          July 23, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 3, 2014

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Faye M. Flancher

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by Jeffrey O. Davis, Matthew C. Vogel, James E. Goldschmidt, and
Quarles & Brady LLP, Milwaukee, and oral argument by James E.
Goldschmidt.




       For      the    plaintiff-respondent,    the   cause   was   argued   by
Katherine D. Lloyd, assistant attorney general, with whom on the
briefs was J.B. Van Hollen, attorney general.
                                                                               2014 WI 85
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2012AP393-CR
(L.C. No.    2009CF459)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                           FILED
      v.
                                                                     JUL 23, 2014
Cortez Lorenzo Toliver,
                                                                        Diane M. Fremgen
              Defendant-Appellant-Petitioner.                        Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.                       Affirmed.



      ¶1      DAVID     T.     PROSSER,    J.     This     is    a    review      of     an
unpublished decision of the court of appeals.1

      ¶2      The     case   involves      the   prosecution         of    a    juvenile

offender in adult court.2                 Wisconsin's Juvenile Justice Code

gives       adult     courts     exclusive       original       jurisdiction           over

      1
       State v. Toliver, No. 2012AP393-CR, unpublished slip op.
(Wis. Ct. App. Apr. 4, 2013).
      2
       As used in this opinion, "adult court" means a court
operating under the Criminal Procedure Code.  "Juvenile court"
refers to a court that is operating under the Juvenile Justice
Code in Wis. Stat. ch. 938.
                                                                   No.      2012AP393-CR



juveniles    who    are    alleged     to    have      committed     certain      serious

offenses.       Wis. Stat. § 938.183(1) (2009-10).3                The statute also

gives    exclusive     original      jurisdiction        over    juveniles       who   are

alleged to have attempted to commit a violation of Wis. Stat.

§ 940.01    (first-degree           intentional         homicide).         Wis.    Stat.

§ 938.183(1)(am).

     ¶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


     3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                            2
                                                                        No.        2012AP393-CR



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 brief4 that

the circuit court failed to find probable cause of a violation

of the specific crime charged under Wis. Stat. § 938.183(1), as

required    by   Wis.    Stat.      § 970.032(1).               The    court      of     appeals

declined    to   address      the    argument,        relying         on    the    rule    that

courts generally do not review issues raised for the first time

in reply briefs.            Toliver now argues that the circuit court's
probable     cause      determination          was        deficient        and     that      the

deficiency may be raised at any point in the proceedings because

it implicates the court's subject matter jurisdiction.

    ¶7      Although         Toliver     raises            an     argument             regarding

jurisdiction, we will focus on a narrower issue that disposes of


    4
       Although Toliver raised the issue of the sufficiency of
the probable cause determination in the circuit court several
months after the preliminary examination, he did not raise the
argument in the court of appeals until his reply brief.

                                           3
                                                                            No.         2012AP393-CR



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 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).                 This means that the court should

make a specific finding on the record that there is probable

cause to believe the juvenile committed the specific Wis. Stat.
§ 938.183(1) crime charged in the complaint.

       ¶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
                                               4
                                                                     No.      2012AP393-CR



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
                                             5
                                                                 No.      2012AP393-CR



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.

             I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶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 "racked the slide."5         Gorman turned to run away, and Toliver

shot him once in the middle of the back.                 Toliver fled, leaving

Gorman lying on the ground with no feeling in his legs.                       At the

time of the shooting, Toliver was a little over 16 years old.

Gorman was 23.
      5
       The court of appeals explained that racking the slide
"manually loads the chamber and cocks a semi-automatic pistol."
State v. Toliver, No. 2012AP393-CR, unpublished slip op., ¶2.
Racking the slide puts the round in the chamber so that the gun
is ready to fire and arguably makes an "intimidating sound."
See United States v. Morales, 684 F.3d 749, 753 (8th Cir. 2012).
                                       6
                                                             No.       2012AP393-CR



       ¶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

Miranda6 rights, Toliver asked for an attorney and was arrested.

       ¶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:

            He got angry, like very high tempered, and
       started to throw the dice and told me that I was going
       to have to give him all of his money back or else he

       6
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                         7
                                                                 No.      2012AP393-CR


      would hit me.   That was his way of saying shoot me,
      you know, otherwise he would shoot me.
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:

           [Toliver] pulled out a gun, and I thought he had
      kind of pulled up, like he was going to put it——like
      he was going to shoot me in the brain or in the head,
      and then you know, I kind of got scared, you know? He
      was trying to, basically, rob me, so I was kind of
      loose, like, scared.     I don't be around guns like
      that. I didn't believe that he would shoot me at all,
      so you know, I turned around and ran with all of the
      speed that I had, and he shot me right in the back——

              . . . .

      He shot me right in the back, and then he went
      back. . . .  He got his book bag and came up, you
      know, he ran. He ran. I'm pretty sure he thought I
      was dead.
      ¶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 note, there is probable

cause to believe a felony has been committed.                    The testimony we

have is from the victim.            You have identification.             You have a

shooting.      Bindover is ordered.         I do have an information, two

counts."      Toliver waived the reading of the information and

entered pleas of not guilty to both counts.                  The information to

which the judge referred contained the same two counts as the
complaint:      attempted      first-degree    intentional             homicide   and

                                        8
                                                                No.      2012AP393-CR



possession of a dangerous weapon by a person under 18.                              The

information listed Toliver's date of birth next to his name at

the top of the document.

    ¶18     On July 28, 2009, Toliver filed a petition for reverse

waiver    pursuant       to   Wis.   Stat.     § 970.032(2).7          The   petition

requested   an     evidentiary       hearing    and   asserted    that       the   case

should be transferred to juvenile court.               On September 10, 2009,

Toliver    filed     a    separate    motion     to   reopen     the    preliminary

hearing, and argued that the circuit court failed to make the

    7
      "Reverse waiver" refers to the procedure by which an adult
court transfers a case against a juvenile offender to juvenile
court. Wisconsin Stat. § 970.032(2) reads:

         (2) If the court finds 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), the
    court shall determine whether to retain jurisdiction
    or to transfer jurisdiction to the court assigned to
    exercise jurisdiction under chs. 48 and 938.       The
    court shall retain jurisdiction unless the juvenile
    proves by a preponderance of the evidence all of the
    following:

              (a) That, if convicted, the juvenile could
    not receive adequate treatment in the criminal justice
    system.

              (b) That transferring jurisdiction to the
    court assigned to exercise jurisdiction under chs. 48
    and 938 would not depreciate the seriousness of the
    offense.

              (c) That retaining jurisdiction is not
    necessary to deter the juvenile or other juveniles
    from committing the violation of which the juvenile is
    accused under the circumstances specified in s.
    938.183 (1)(a), (am), (ar), (b) or (c), whichever is
    applicable.

                                         9
                                                      No.     2012AP393-CR



specific     probable   cause   finding   required    by     Wis.   Stat.

§ 970.032.

    ¶19    On November 2, 2009, the Racine County Circuit Court,

Faye M. Flancher, Judge,8 held a motion hearing, which included

argument on the motion for reverse waiver and on the motion to

reopen the preliminary hearing.         Judge Flancher noted that at

the preliminary hearing, "the Court did have at its disposal the

court file which has Mr. Toliver's name and date of birth in

bold on the face of the criminal complaint."            Judge Flancher

stated:

         So clearly from this transcript the Court did
    indeed find probable cause that Cortez Lorenzo
    Toliver, that there was probable cause to support
    Count 1, attempted first degree intentional homicide,
    and Count 2, possession of a dangerous weapon by a
    person under the age of 18.

             . . . .

         And so the motion to reopen the preliminary
    hearing is denied, and the Court does find based on
    the preliminary hearing transcript that there is in
    fact probable cause based on that record supporting
    both Count 1, attempted first degree intentional
    homicide, and Count 2, possession of a dangerous
    weapon by a child.
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 robbery



    8
       According to Toliver's brief, Judge           Flancher   replaced
Judge Constantine after a judicial rotation.

                                  10
                                                                        No.       2012AP393-CR



while armed.9           On June 6, 2011, consistent with the plea, the

State filed an amended information charging Toliver with first-

degree reckless injury by use of a dangerous weapon contrary to

Wis.       Stat.      §§ 940.23(1)(a),         939.50(3)(d),           and      939.63(1)(b)

(Count 1), and with attempted robbery with threat of force by

use        of     a     dangerous        weapon         contrary       to      Wis.     Stat.

§§ 943.32(1)(b), 939.50(3)(e), and 939.63(1)(b) (Count 2).                                 At

the sentencing hearing on July 7, 2011, the State requested that

the court impose a lengthy prison sentence.                             The court agreed

and     imposed        consecutive      sentences        of    20      years    of    initial

confinement and ten years of extended supervision for Count 1

and seven years of initial confinement and two and a half years

of extended supervision for Count 2.                      The judgment of conviction

was filed on July 13, 2011.

       ¶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


       9
       Toliver was 18 years old at the time he filed the plea
questionnaire.

                                              11
                                                          No.       2012AP393-CR



(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:

      We generally do not address arguments raised for the
      first time in a reply brief.       A.O. Smith Corp. v.
      Allstate   Ins.  Cos.,   222   Wis. 2d 475,  492,   588
      N.W.2d 285 (Ct. App. 1998).    We therefore decline to
      address Toliver’s argument that the court failed at
      the preliminary examination to make the specific
      probable cause determination required by § 970.032.
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, 2013.10




      10
           In his petition for review, Toliver raised two issues:

           1.   Which prevails: the general rule that a
      defect of subject matter jurisdiction may be raised at
      any time, or the convention that the Court of Appeals
      will not address an argument first raised in a reply
      brief?

             . . . .

           2.   Where a Wisconsin court fails to make the
      specific probable cause finding required by Wis. Stat.
      § 970.032, does this failure cause the court to lose
      subject   matter   jurisdiction  over   the   criminal
      proceeding, necessitating that the juvenile defendant
      be discharged?

                                     12
                                                                        No.      2012AP393-CR



                               II. STANDARD OF REVIEW

     ¶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 dispute or the presiding official failed to make

factual findings at the preliminary hearing, the question of

whether there is sufficient evidence to support a bindover is a

question of law subject to de novo review.                             See Williams, 104

Wis. 2d at 21-22; see also State v. Dunn, 121 Wis. 2d 389, 398-

99, 359 N.W.2d 151 (1984); State v. Lindberg, 175 Wis. 2d 332,

340-41, 500 N.W.2d 322 (Ct. App. 1993); State v. Blalock, 150

Wis. 2d 688,       697,       442    N.W.2d 514        (Ct.     App.    1989).         In    the

present case, the principal facts adduced at the preliminary

hearing are undisputed.                  Consequently, we review the preliminary

hearing    independently            to    determine      whether       the    circuit   court

adequately determined that there was probable cause to support a

bindover——that          is,   whether       the      circuit    court    determined         that
there     was    probable      cause       to     believe      that    Toliver    committed

attempted first-degree intentional homicide.11

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.
     11
       We note that the above standards were articulated in the
context of preliminary hearings conducted pursuant to Wis. Stat.
§ 970.03.   We conclude that they are applicable to preliminary
hearings conducted pursuant to Wis. Stat. § 970.032 as well.

                                                13
                                                                          No.     2012AP393-CR



                                  III. DISCUSSION

       ¶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.

                          A. The Juvenile Justice Code

       ¶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).

 B. The Differences between Preliminary Hearings for Adults and

          Preliminary Hearings for Juveniles in Adult Court

       ¶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
                                            14
                                                                        No.       2012AP393-CR



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    violation       of    a

specific offense enumerated in Wis. Stat. § 938.183(1)(a), (am),

(ar), (b) or (c).               Kleser, 328 Wis. 2d 42, ¶57.                  Consequently,
the court is required to "determine whether 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) . . . ."              Wis.    Stat.   § 970.032(1)          (emphasis

added).       The statute then provides: "If the court does not make

that       finding,    the      court    shall       order   that       the   juvenile        be

discharged but proceedings may be brought regarding the juvenile

under ch. 938."            Id. (emphasis added).


                                               15
                                                                        No.        2012AP393-CR



       ¶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.      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;     Roger

Williams, 104 Wis. 2d at 22-23.
       ¶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.
                                              16
                                                                        No.         2012AP393-CR



                         C. Toliver's Preliminary Hearing

       ¶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 possession of a
dangerous weapon by a person under 18.                       Thus, the judge referred
                                               17
                                                                              No.         2012AP393-CR



to a document that alerted him to the fact that the defendant

before him was under 18 and that he was charged with a felony

that sustained adjudication in adult court.                                  In reviewing Judge

Constantine's         determination,              Judge        Flancher       noted       "that    the

Court did have at its disposal the court file which has Mr.

Toliver's name and date of birth in bold on the face of the

criminal complaint."               Accordingly, the record demonstrates that

Judge Constantine was aware that Toliver was a juvenile and

found probable cause to believe that Toliver committed attempted

first-degree intentional homicide.

      ¶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.            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


                                                    18
                                                              No.      2012AP393-CR



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.12     Wisconsin Stat. § 970.032(1) requires the court

to "first determine whether 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."      Wis. Stat. § 970.032(1) (emphasis added).                    Thus,

when conducting a preliminary hearing pursuant to § 970.032, the

court should: (1) acknowledge on the record that the individual

being charged is a juvenile; (2) refer to the specific charge or

charges    that   require   adjudication     in    adult   court       under    Wis.

Stat. § 938.183(1); and (3) state on the record that there is

probable cause to believe the juvenile offender has committed

the specific crime or crimes charged.              The legislature intended
that an adult court should be specific in its articulation of

its probable cause finding against a juvenile offender to avoid

appeals such as this one.         A general probable cause articulation

will not always have the support of such a clear record to



     12
        It must be acknowledged that Judge Constantine made his
ruling a little over one year before this court's decision in
Kleser.    State v. Kleser, 2010 WI 88, 328 Wis. 2d 42, 786
N.W.2d 144.    Kleser emphasized that the finding of probable
cause should address the specific offense charged. Id., ¶57.

                                     19
                                                                    No.      2012AP393-CR



demonstrate       that        the    judge      complied       with        Wis.     Stat.

§ 970.032(1).

                                    IV. CONCLUSION

    ¶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 under Wis.

Stat. § 938.183(1) that is charged in the complaint.                              Although

specificity      is    strongly      preferred,       a   general     probable      cause

determination might comply with Wis. Stat. § 970.032(1) if the

totality    of   the     circumstances         demonstrates     that       the    court's

finding     related      to    the    charged        offense   under       Wis.     Stat.

§ 938.183(1).         Despite the fact that the court in this case did

not specifically refer to the charged felony under Wis. Stat.

§ 938.183(1)(am), the totality of the circumstances leaves no

doubt that there was probable cause to believe Toliver attempted

first-degree intentional homicide and suggests that the judge

made the specific finding required by Wis. Stat. § 970.032(1).
Thus, the bindover and prosecution of Toliver in adult court

were not improper.

    By     the   Court.—The         decision    of    the   court     of    appeals    is

affirmed.




                                          20
                                                         No.   2012AP393-CR.ssa




    ¶37   SHIRLEY    S.    ABRAHAMSON,        C.J.    (dissenting).           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.1

See Wis. Stat. § 970.032(1).

    ¶38   Section 970.032(1) reads as follows:

    (1) Notwithstanding s. 970.03, if a preliminary
    examination is held regarding a juvenile who is
    subject to the original jurisdiction of the court of
    criminal jurisdiction under s. 938.183(1), the court
    shall first determine whether there is probable cause
    to believe that the juvenile has committed the

    1
       Like the majority opinion, I do not address the issue of
subject matter jurisdiction in the instant case. Majority op.,
¶23 n.10.

     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).

                                      1
                                                         No.   2012AP393-CR.ssa

     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
     court does not make that finding, the court shall
     order that the juvenile be discharged but proceedings
     may be brought regarding the juvenile under ch. 938.
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:

     [T]here is probable cause to believe a felony has been
     committed. The testimony we have is from the victim.
     You have identification.       You have a shooting.
     (Emphasis added.)
     ¶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 support proceedings in

adult criminal court for a juvenile.          The circuit court did not

determine that "there is probable cause to believe that the

juvenile    has    committed    the   violation   of    which    he . . . is

accused . . ." (emphasis added).

     ¶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.2

     ¶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"
     2
         Majority op., ¶¶32-35.

                                      2
                                                                   No.   2012AP393-CR.ssa


(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 ___,

___N.W.2d ___ (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.




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    No.   2012AP393-CR.ssa




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