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03-2820 State v. Aufderhaar (61614)

By: dmc-admin//October 11, 2004//

03-2820 State v. Aufderhaar (61614)

By: dmc-admin//October 11, 2004//

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“Here, it is true that the delinquency petition, though filed in court, was never in Aufderhaar’s hands before the waiver hearing took place. However, at the time of the hearing, Aufderhaar is presumed to have had notice that such a petition existed because the notice of waiver hearing was sent to his correct Montana address before the waiver hearing and that notice was never returned as undeliverable. The law in this state is that when notice is sent by mail and it is not returned, the presumption is that it was delivered.”

And, even though there was a 502-day delay from the date of the filing of the delinquency petition to the filing of the waiver petition, we find that the State did not intentionally manipulate the system in order to try defendant as an adult.

“There is no evidence that the State was sitting on the case, waiting for Aufderhaar to turn seventeen. Had this been the case, the State would have acted when he actually turned seventeen or soon thereafter, around August 3, 2002. Instead, it is clear that the State filed its waiver petition and began pursuing Aufderhaar in earnest after the Montana authorities called on March 6, 2003, explaining that Aufderhaar was involved in sexual activity in Montana and providing a current address for Aufderhaar. Thus, it is quite apparent that Aufderhaar was himself the catalyst for the State’s renewed interest in him. While the State certainly could have located Aufderhaar at the petition stage, and was negligent in not doing so, the resultant delay was probably due to a decision to leave Aufderhaar alone, not to wait until he was older. That is the only inference that we can arrive at, and therefore, we conclude the delay was not an intentional attempt by the State to manipulate the system.”

Since this is an interlocutory appeal, which are generally disfavored because the court system cannot squander its stretched resources to accommodate piecemeal appeals, we do not address two other issues raised by defendant which were not presented in the petition for leave to appeal.

Order affirmed.

Recommended for publication in the official reports.

Dist II, Walworth County, Kennedy, J., Brown, J.

Attorneys:

For Appellant: Raymond E. Krek, Jefferson; J. Paul Neumeier Jr., Jefferson

For Respondent: Phillip A. Koss, Elkhorn; Shannon Wittenberger, Madison

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