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 App. 2013 – Unpublished)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,

 v.

Cortez Lorenzo Toliver,

 Defendant-Appellant-Petitioner.

FILED

JUL 23, 2014

Diane M. Fremgen

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unpublished decision of the court of appeals.1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1 State v. Toliver, No. 2012AP393-CR, unpublished slip op.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

2

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.
No. 2012AP393-CR

3

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.
No. 2012AP393-CR

4

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 firstdegree 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 
No. 2012AP393-CR

5

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 
No. 2012AP393-CR

6

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). 
No. 2012AP393-CR

7

¶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).
No. 2012AP393-CR

8

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 
No. 2012AP393-CR

9

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. 
No. 2012AP393-CR

10

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.
No. 2012AP393-CR

11

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

State filed an amended information charging Toliver with firstdegree 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.
No. 2012AP393-CR

12

(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?
No. 2012AP393-CR

13

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.
No. 2012AP393-CR

14

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 
No. 2012AP393-CR

15

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).
No. 2012AP393-CR

16

¶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.
No. 2012AP393-CR

17

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 
No. 2012AP393-CR

18

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 firstdegree 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 
No. 2012AP393-CR

19

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.
No. 2012AP393-CR

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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.
No. 2012AP393-CR.ssa

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¶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).
No. 2012AP393-CR.ssa

2

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.
No. 2012AP393-CR.ssa

3

(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.
No. 2012AP393-CR.ssa

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