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In Re K.m.

OPINION FILED APRIL 25, 1979.

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

v.

K.M., RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Woodford County; the Hon. SAM HARROD, III, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On December 29, 1977, respondent K.M., a minor, was adjudicated by the circuit court of Woodford County to be a delinquent minor. On January 4, 1978, that court entered a dispositional order placing her on conditional discharge. On August 14, 1978, the court revoked the conditional discharge and on August 16, 1978, committed her to the Department of Corrections, Juvenile Division. She appeals that order. Taken with the case is also her December 11, 1978, motion for leave to file late notice of appeal from the January 4, 1978, order placing her on conditional discharge.

On her appeal from the August 16, 1978, order committing her to the Department of Corrections, respondent asserts that the previous order of the court on January 4, 1978, placing her on conditional discharge, "is void for lack of jurisdiction because the trial court failed to consider the best interests of respondent, or adjudicate her a ward of the court." The order of commitment followed an order of August 14, 1978, revoking the conditional discharge.

• 1 Respondent's contentions are without merit. Although a determination of wardship is a condition precedent to a commitment to the Department of Corrections under section 5-2(1)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 705-2(1)(a)), section 4-8(2) of the Act (Ill. Rev. Stat. 1977, ch. 37, par. 704-8(2)) expressly provides that the adjudicatory hearing is the appropriate time for making the finding (In re Driver (1977), 46 Ill. App.3d 574, 360 N.E.2d 1202). Prior to the dispositional order placing respondent on conditional discharge, the trial court entered the adjudicatory order of December 29, 1977, finding respondent to be delinquent and also expressly finding, "[I]t is in the best interests of the minor and of the public that the minor be made a ward of the court."

• 2 The report of proceedings for the December 29, 1977, hearing gives no indication that the trial judge made an oral pronouncement that he was making respondent a ward of the court or that he considered it in her best interests and that of the public that he do so. That transcript does indicate, however, that considerable discussion occurred between court and counsel as to the best interests of the respondent and the public as to the type of adjudication to be entered. The record showed that she had previously been found to be in need of supervision and placed at the Salem Children's Home but was expelled from there for misconduct. It was also shown that she had not behaved while released to her parents. The written order of December 29, 1977, was sufficient to meet the requirements of sections 4-8(2) and 5-2(1)(a) of the Act.

• 3 Respondent seeks leave to file late notice of appeal from the dispositional order of January 4, 1978, thus raising the question of the propriety of that order and the underlying adjudicatory order of December 29, 1977. She maintains that the adjudicatory order was erroneous because she was charged with escaping from the custody of a "peace officer" and the only person she might have escaped from was not shown to be a "peace officer" within the meaning of section 31-6(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(c)). Supreme Court Rule 660(a) (65 Ill.2d R. 660(a)) provides that appeals from final judgments in delinquency proceedings shall be governed by the rules applicable to criminal cases. Supreme Court Rule 606(b) (65 Ill.2d R. 606(b)) requires notice of appeal from final orders in criminal cases to be filed within 30 days from the judgment appealed or within 30 days of the ruling upon a timely filed motion directed against the judgment.

By the terms of Rule 606(c), a party, upon proper showing, may apply by motion to a reviewing court for leave to file a late notice of appeal. The motion need be supported only by a showing of reasonable excuse for failure to file timely notice of appeal if made within 30 days of the expiration of the 30-day time limit of Rule 606(b). If supported by a showing by affidavit that there is merit to the appeal and the failure to file was not due to the appellant's culpable negligence, the motion may be filed within 6 months of the expiration of the time limit of Rule 606(b). The rule makes no provision for obtaining leave to file late notice of appeal if application is made after the expiration of the 6-month period.

Here, there is a showing of merit to the appeal and that the minor's failure to timely file notice of appeal was not due to her culpable negligence. The record does not indicate that the court ever informed the minor of her right to appeal the order of conditional discharge entered on January 4, 1978, as application of Supreme Court Rule 605(a) (58 Ill.2d R. 605(a)) to delinquency proceedings requires. However, the petition for late notice of appeal was not filed until December 11, 1978, making the period of time from January 4, 1978, until its filing well in excess of the 30-day period of Rule 606(b) and the additional 6-month period of Rule 606(c).

In People v. Brown (1973), 54 Ill.2d 25, 294 N.E.2d 267, the appellate court's dismissal of a pro se notice of appeal, filed by the defendant 16 days after the expiration of the 30-day period for filing notice of appeal as a matter of right, was held to be error. At the time the order from which appeal was sought had been entered, the court was not required to advise the defendant in regard to his right to appeal and the defendant had not been informed of the time limits for filing the notice of appeal. The case had been briefed and argued in the appellate court before that court concluded that it had no jurisdiction and dismissed the appeal. The supreme court stated that the appellate court's distinguishing that case from cases where a petition for leave to file the late notice of appeal had been filed within the 6-month period "unduly emphasizes formality at the expense of substance." 54 Ill.2d 25, 26, 294 N.E.2d 267.

In People v. Williams (1974), 59 Ill.2d 243, 320 N.E.2d 13, an order of the appellate court dismissing a notice of appeal filed after the expiration of the 30-day period but during the 6-month period was reversed by the supreme court. As in Brown, the appeal had been briefed and argued prior to the dismissal order. The defendant had been advised that he had a right to appeal but had not been advised of the 30-day limitation. The record indicated that after being convicted, defendant was without counsel for a period of time. The supreme court opinion gave considerable importance to the fact that defendant had indicated a desire to file notice of appeal within the 6-month period.

• 4 We do not interpret Brown and Williams to indicate that the appellate court's power to grant leave to appeal after the expiration of the 30-day and 6-month periods of Rule 606(b) and (c) is open-ended as long as fairness be served by hearing the appeal. Rather, we interpret the decisions to require us to hear appeals covered by Rule 606(b) and (c) when the ends of justice would be served thereby and the appellant has shown an intent to appeal during the 6-month period by filing a document so indicating but fails to precede the filing with a request for leave to do so. It is the requirement that the document indicating a desire to appeal be accompanied by a request for leave to file that "unduly emphasizes formality for substance" and not the requirement that action be taken within the 6-month period. Had the supreme court deemed that we had power to grant leave to file late notice of appeal at any time to prevent injustice, it would have so stated in its rules.

Respondent relies upon People v. Joseph (1975), 33 Ill. App.3d 315, 337 N.E.2d 110, but there as in Brown and Williams the defendant had filed a purported notice of appeal within the 6-month period.

The failure of the trial court to advise the minor as to her right to appeal is not of itself sufficient to bring the case within the rule of Brown and Williams. Defendant had counsel in the trial court throughout. The point which respondent wishes to now raise on appeal was presented and argued at the adjudicatory hearing. Nothing was filed within the 6-month period indicating a desire to appeal and it would ...


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