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In Re Stewart

OPINION FILED OCTOBER 7, 1976.

IN RE GORDON STEWART, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

GORDON STEWART, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ERWIN MARTAY, Judge, presiding.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:

• 1 Gordon Stewart, a juvenile, appeals from an order committing him to the Department of Corrections, Juvenile Division, after he supposedly admitted committing a battery. Two issues are raised in his appeal: (1) that the court violated due process when it accepted his admission; and (2) that the court lacked jurisdiction to sentence him because it never adjudicated him a ward of the court. The State concedes that there never was an explicit adjudication as required by section 4-8 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 704-8; In re Franklin (1976), 42 Ill. App.3d 129, 355 N.E.2d 570), but it contends that this requires only a remand limited to establishing the court's wardship. If the lack of an adjudication of wardship were the only error, remandment would be the proper disposition of this appeal. However, the first error alleged — abuse of due process — necessitates reversal as well as remandment.

In October 1974 a petition for adjudication of wardship was filed alleging that Stewart had committed a robbery and was delinquent. Nine days later a hearing was held on the petition. The Public Defender was appointed counsel for the respondent and the State's Attorney was granted leave to amend the petition to charge battery rather than robbery. The following dialogue then occurred:

THE COURT: "Young man, were you advised of your legal rights when the lawyer talked to you?"

STEWART: "Yes."

THE COURT: "Were you advised that you had a right to deny that you struck somebody? That you have a right to a trial in court, and that you have a right to have your lawyer, the Public Defender, cross examine all State's witnesses in open court. That you are presumed innocent until proven guilty beyond a reasonable doubt. That you have a right to have the State's Attorney prove his case beyond a reasonable doubt. Did you commit a battery? Did you hit somebody?"

STEWART: "Yes."

THE COURT: "Are you admitting this of your own free will?"

STEWART: "Yes."

THE COURT: "Without promises?"

STEWART: "Yes."

THE COURT: "You understand, I could send you away to the Department of Corrections?"

STEWART: No response.

THE COURT: "Voluntary admission to the ...


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