Appeal from the Circuit Court of Williamson County; the Hon.
H.L. ZIMMERMAN, Judge, presiding. Judgments reversed and
Defendant appeals from a judgment of the Circuit Court of Williamson County, Illinois, denying his Petition for Writ of Recovery filed under the provisions of chapter 38, section 105-9, Ill. Rev Stats 1965.
On February 23, 1962, defendant was declared to be a sexually dangerous person and was committed to the custody of the Director of Public Safety. On June 5, 1964, he filed a Petition for Writ of Recovery which recited the reason for his detention and alleged that he had become cured and was no longer a sexually dangerous person. Defendant also asked that psychiatrists, other than institutional, be appointed to examine him and report to the court. He requested a jury trial pursuant to the Sexually Dangerous Persons Act, the appointment of counsel other than the Public Defender, and an opportunity to be present at the hearing on his petition. On July 30, 1964, the State's Attorney filed a Motion to Dismiss the Petition. Nothing further was done by the court or by the State's Attorney on this matter until November 16, 1966, at which time the acting clerk of the court wrote to the Director of the Department of Public Safety for the "psychiatric ATC examinations of this defendant." A Special Progress Report on defendant was filed on November 29, 1966, and on November 30, 1966, the court set the application for discharge for hearing. The hearing was had on January 5, 1967, and the court denied the Writ of Recovery requested by defendant. The court sat without a jury, the defendant was not present at the hearing, and there had been no independent psychiatric examination of defendant. Counsel other than the Public Defender had been appointed for the defendant.
Defendant first contends that the trial court erred in not granting his request for a jury trial and relies on People v. Olmstead, 32 Ill.2d 306, 205 N.E.2d 625, wherein the court said at page 314, "It is our conclusion that, upon the filing of defendant's application for discharge under section 9, the trial court should have appointed counsel to represent this indigent defendant and should have impaneled a jury pursuant to defendant's jury demand, and held a hearing to determine if the defendant had recovered from the disability responsible for his original commitment. To hold otherwise would be to permit the State to forever hold in confinement a defendant found to be sexually dangerous at the sole discretion of the officers of the State. The rights of the individual, as protected by the provisions of this act, do not so intend." From the foregoing, we conclude that the trial court erred in denying defendant's demand for a jury trial on his petition for writ of recovery.
Defendant also argues that he is entitled to an absolute discharge because he was deprived of due process of law by the delay of two and one-half years in obtaining a hearing on his petition. It has been repeatedly held that even though proceedings under the Sexually Dangerous Persons Act are called civil in nature, they closely resemble criminal prosecutions in many critical respects, People v. Nastasio, 19 Ill.2d 524, 168 N.E.2d 728.
Because a judgment finding a defendant to be a sexually dangerous person subjects him to incarceration for an indefinite period, due process requires that a hearing on a petition for a writ of recovery should be held within a reasonable time. In People v. Olmstead, supra, the Supreme Court held that the trial court was compelled to hold a hearing on defendant's application for discharge under the Sexually Dangerous Persons Act even though the defendant had been inarticulate in preparing the application, saying, "to hold otherwise would be to permit the State to forever hold in confinement a defendant found to be sexually dangerous at the sole discretion of the officers of the State." In the present case the defendant found a worse type of roadblock to his rights a delay of more than two and one-half years in setting his petition for hearing. If an indigent defendant can be required to wait more than two and one-half years to have a hearing on his petition for recovery when he is being held in the psychiatric division of a penitentiary, with limited writing privileges and no way to obtain an attorney, other than by court appointment, his rights are rendered almost nonexistent. Due process of law requires more than this.
In our examination of the record on appeal we find that the proceedings in which defendant was adjudged to be a sexually dangerous person were not conducted in accordance with the provisions of the statutes. The pertinent parts of the order entered by the trial court upon adjudging the defendant to be a sexually dangerous person read as follows:
"And now on this 14th day of February, 1962, came Carl D. Sneed, State's Attorney in and for the County of Williamson and State of Illinois and presented to the court a Petition, duly verified, alleging that Paul Abney, defendant in the above-entitled cause, is or is supposed to be a sexually dangerous person within the meaning of the `Sexually Dangerous Persons Act' of the State of Illinois, cited herein as Ill. Rev Stats 1961, Chapter 38, Sections 820.01-825, and praying that the court appoint two qualified psychiatrists to make a personal examination of the said Paul Abney to ascertain whether said person is sexually dangerous. Thereupon the court appoints Dr. Groves B. Smith and Dr. E. Ralph May, qualified psychiatrists, to make such personal examination of the above-named Paul Abney, and, at the request of counsel for the said Paul Abney, appoints Dr. Clarence E. Boyd, qualified psychiatrist, to make a personal examination of the said Paul Abney, said psychiatrists to report their findings, conclusions and recommendations in writing to this court on or before the 28th day of February, 1962.
"Now on this same day the said defendant, Paul Abney, was brought before the court and was informed by the court of the filing of the aforesaid Petition to declare him a sexually dangerous person, and also presented by the court with a copy of said Petition; and the said Paul Abney, being interrogated by the court, stated that he was without funds to employ an attorney to represent him in said proceedings, and the court thereupon appointed Charles D. Winters, Public Defender in and for the County of Williamson and State of Illinois, to represent said defendant.
"And now on this 23rd day of February, 1962, the same being one of the regular judicial days of the February Term A.D. 1962, comes into open court, Paul Abney, together with his counsel, Charles D. Winters, Public Defender as aforesaid, and Carl D. Sneed, State's Attorney of Williamson County, also being present in open court, the court thereupon delivers to the said Paul Abney in open court a copy of the reports in writing of Groves B. Smith, M.D., E. Ralph May, M.D., and Clarence E. Boyd, M.D., being the psychiatrists heretofore appointed by order of this court as aforesaid, and the said Paul Abney, by his aforesaid counsel, thereupon states to the court that he is ready for his trial to begin.
"And now on this same 23rd day of February, 1962, the People now being here represented by the State's Attorney, and the said defendant, Paul Abney, being present in his own proper person, as well as represented by counsel, and the trial of this proceeding being here entered upon before the court in this proceeding in open court, no demand for jury having been made by said defendant, the court proceeds to call the case and hear open statements of counsel and evidence. Having heard all of the evidence in this cause and being thus fully advised, the court finds: . . ."
The court thereupon found that the defendant had committed certain sexual acts with different children on several occasions, which findings were in the exact language of the petition filed by the State's Attorney. After making these findings the court order continued:
"5. That Groves B. Smith, M.D., E. Ralph May, M.D. and Clarence E. Boyd, M.D., the qualified psychiatrists heretofore appointed by order of this court, have filed herein their written reports finding the said Paul Abney to be a Sexually Dangerous Person.
"IT IS THEREFORE ORDERED AND ADJUDGED that the said Paul Abney is a Sexually Dangerous Person within the meaning of the `Sexually Dangerous Persons Act' of the State of Illinois, cited herein as Ill ...