APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Defendant was charged in a single count information with the offense of burglary. (Ill. Rev. Stat. 1977, ch. 38, par. 19-1.) Before trial he filed a petition to be treated as a narcotic addict under the Dangerous Drug Act (the Act). (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.1 et seq.) The trial court, after a hearing, found that defendant was eligible for treatment as a narcotics addict under section 8 of the Act (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.8) and that he had been accepted for treatment by the Department of Mental Health (the Department). Pursuant to section 9 of the Act (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.9), the trial court advised the defendant of the possible consequences of his request to be treated under the Act. Defendant stated that he understood these consequences, waived his rights to a speedy trial and to a trial by jury, and elected to be treated under the Act. The State's Attorney refused to consent to defer the trial under section 9, and a bench trial was conducted on the charge of burglary. At the conclusion of the bench trial, the State's Attorney refused to consent to defer entry of the court's general finding under section 9. The trial court then entered a general finding of guilty and continued the matter for a presentence investigation report. After reviewing this report, the trial court entered judgment on the guilty finding and sentenced the defendant under section 10 (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.10) to three years' probation with a condition of continued treatment of his addiction problem in the Treatment Alternatives to Street Crime drug program of the Department. Defendant appeals.
The issue in this case is whether section 9 of the Act permits the trial court to place a defendant, eligible for treatment inside the Act, under the supervision of the Department after a general finding of guilty has been rendered against defendant. The State maintains that when the State's Attorney, in accordance with section 9, refuses to consent to defer the entry of the general finding, the trial court's only option is to enter a judgment of conviction on the general finding of guilty and sentence defendant under section 10. Defendant, on the other hand, argues that even after the trial court enters its general finding of guilty the defendant may be placed under the supervision of the Department pursuant to section 9. Thus, according to defendant's theory, judgment of conviction and imposition of sentence may be entirely avoided.
Before proceeding to our discussion of the various arguments, we would note that the record affirmatively shows that the trial court felt precluded from considering preconviction placement of the defendant with the Department under section 9 by the State's Attorney's action forcing the entry of a general finding of guilty. Thus, this appeal will determine only whether the cause should be remanded to the trial court to consider the alternative of preconviction placement of the defendant with the Department.
At this point a review of the relevant sections of the Act is called for. Section 8 contains the criteria for determining when a defendant is eligible for treatment as a narcotics addict under the Act. (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.8.) Section 9, in general, involves defendants charged with a crime who are eligible for treatment under section 8. (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.9.) The first paragraph of section 9 states the trial court's role in advising a defendant on the consequences of choosing to be treated under the Act. The second paragraph of section 9, containing the pivotal language in this appeal, sets forth the procedure to be followed on the criminal charge pending against the defendant. The decisive language of this paragraph follows:
"If the court determines that the individual is an addict and is likely to be rehabilitated through treatment, the court, unless the State's Attorney consents to defer trial until such time as prosecution is authorized under this Section to be resumed, shall, without a jury, conduct the trial of the individual but may, with the consent of the State's Attorney, defer entering its general finding respecting that individual until such time as prosecution is authorized under this Section to be resumed and place him under the supervision of the Department for treatment for a maximum of 2 years and may require such progress reports on the individual as the court finds necessary." (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.9.)
The final paragraph of section 9 provides that the pending criminal proceeding against a defendant, who has been placed under the supervision of the Department, may be resumed if: (1) the defendant has not successfully completed the treatment program, or (2) if the Department determines, before the supervision period ends, that defendant can no longer be treated as a medical problem. (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.9.) Section 10 deals with defendants who have been convicted of the crime and seek treatment under the Act. These persons may be placed on probation with a condition to undergo treatment for their narcotics addiction. Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.10.
We first look to the public policy and legislative intent underlying the Act for guidance in our interpretation of section 9. Our legislature has declared that the public policy of this State recognizes the human suffering caused by drug addiction as a matter of grave concern. (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.2.) To meet this problem:
"It is imperative that a comprehensive program be established and implemented * * * to prevent such addiction and abuse * * * to study the problem of the abuse of controlled substances and use of cannabis in this State * * * and to provide diagnosis, treatment, care and rehabilitation for controlled substance addicts to the end that these unfortunate individuals may be restored to good health and again become useful citizens in the community." (Ill. Rev. Stat. 1977, ch. 91 1/2, par. 120.2.)
In People v. Phillips (1977), 66 Ill.2d 412, 362 N.E.2d 1037, our supreme court summarized the legislative intent of this act as follows:
"The Act provides an alternative to the usual criminal procedures; it allows a criminal defendant with a drug abuse problem to avoid the criminal justice machinery and the ultimate result of either acquittal or sentence. A defendant who is eligible under the Act may elect to submit to treatment by the Department of Mental Health instead of prosecution. In such a case, treatment, unlike a sentence, is not a consequence of defendant's guilt. It is instead an `alternative to a criminal conviction and the regular sentencing alternatives available under the Unified Code of Corrections.' (65 Ill. B.J. 142, 144 (1976).)" (Phillips, 66 Ill.2d 412, 416, 362 N.E.2d 1037, 1039.)
From the public policy and legislative intent of this Act, we discern an attempt to withdraw certain criminal defendants, who are drug addicts and likely to be rehabilitated, from the existing criminal machinery which ultimately results in either acquittal or conviction and sentence. Instead, a new alternative is offered. This alternative places the defendants under the supervision of the Department and thereby diverts them from criminal conviction and sentence.
Similar legislation has been enacted in California, and the California Supreme Court has described its purpose as follows:
"The purpose of such legislation, which has recently been adopted with variations in several of our sister states, is twofold. First, diversion permits the courts> to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables the courts> to devote their limited time and resources to cases requiring full criminal processing." (People v. Superior Court (1974), 11 Cal.3d 59, 61-62, 520 P.2d 405, 407, 113 Cal.Rptr. 21, 23.)
The California Supreme Court, consistent with our interpretation, viewed this legislation as an alternative to the customary criminal process with the beneficial results of providing treatment which may lead to rehabilitation ...