Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County,
the Hon. Donald W. Morthland, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
On June 25, 1979, a petition was filed in the circuit court of Macon County alleging that the defendant, Kevin Eugene Woodruff, age 15, is a delinquent minor. The petition alleged that the defendant committed the offenses of armed robbery, armed violence, and home invasion. On the same day, the State's Attorney filed a motion to have the defendant tried as an adult. (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3).) On August 10, 1979, the court entered an order authorizing the State to try the defendant as an adult for violations of the criminal law. The criminal trial began on November 19, 1979, at which time the defendant moved that he be discharged for failure of the State to bring him to trial within 120 days from the date he was taken into custody. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(a).) The motion was denied and, following a jury trial, the defendant was convicted of armed robbery and home invasion, and sentenced to two concurrent terms of seven years' imprisonment.
In the appellate court, the defendant raised three issues. However, the appellate court only addressed one of these (the failure to bring the defendant to trial within 120 days), and reversed the defendant's convictions on that basis. The appellate court held that under the facts of this case, which will be set out in more detail below, the 120-day period began running when the delinquency petition was filed and summons issued on June 25, 1979. The court held that the time between that event and the entry of the order authorizing the defendant to be tried as an adult had to be counted in determining whether the defendant had been brought to trial within 120 days from the date he was taken into custody. (90 Ill. App.3d 236.) We granted the State's petition for leave to appeal.
Prior to the filing of the delinquency petition involved in this case, an earlier delinquency petition had been filed on August 3, 1978, charging that Kevin Woodruff had entered a building without the owner's consent and committed damage to the property therein. At the adjudicatory hearing on the petition, the defendant was placed on supervision for a period of one year beginning September 21, 1978. Thereafter, several reports were filed by the probation officer setting forth various violations of the conditions of the supervision order. As a result of these violations a detention warrant was issued. On April 12, 1979, following a detention hearing, the minor was ordered detained in a detention facility until April 16, at which time he was to be released to his father, and the matter was continued for a hearing. Following the release of the defendant to his father, the probation officer reported that on May 2, 1979, the defendant was seen stealing a minibike and on May 14, 1979, the defendant was arrested by the police on a burglary charge. It does not appear that he was held. In addition to these violations, the defendant's father reported that the defendant was out of control, had been smoking "pot" and using other drugs, and had not come home for two nights. Also, the father reported that the defendant had not been attending school. Finally, on May 14, a detention warrant was issued but was apparently not served. On May 25 the defendant's attorney reported that the whereabouts of the defendant was unknown. The hearings on the alleged violations were continued generally. On June 3, 1979, the defendant was apprehended and detained in the Macon County juvenile detention facility. On June 5 the court entered a detention order directing that he be detained in the juvenile detention facility. On June 14 the adjudicatory hearing was held and the defendant was found to be a delinquent minor and he was adjudged a ward of the court. On June 23 the dispositional hearing was commenced and was concluded on June 26, at which time the court entered an order committing the defendant to the Department of Corrections, juvenile division, and ordering the sheriff to forthwith deliver the defendant to the Department of Corrections, juvenile division. It was further ordered that the defendant be held in the Macon County juvenile detention facility pending transfer to the Department of Corrections.
The beginning of the proceedings leading to the defendant's conviction in our case overlaps the violations and proceedings set out above, which pertain to the earlier delinquency adjudication of this defendant. On June 25, 1979 (after the defendant had been adjudicated a delinquent in the prior proceeding, but before the dispositional order in that case), the delinquency petition was filed in this case charging that the defendant had committed the offense of armed robbery and home invasion for which he was later prosecuted criminally. A motion to prosecute the defendant as an adult was filed at that time. Summons was issued and served upon the defendant on June 28, 1979 (after he had been committed to the Department of Corrections, juvenile division, by the dispositional order entered in the prior case, but while he was still being held in Macon County juvenile facility pursuant to the court order pending his transfer to the Department of Corrections).
The adjudicatory hearing for this second delinquency petition was set for July 12, 1979; however, the defendant had been transferred to the Department of Corrections, juvenile division, on July 2. On July 23, 1979, a petition for a writ of habeas corpus ad prosequendum was filed by the State's Attorney of Macon County, and on that date the court entered an order allowing the State's request. As noted previously, the defendant's trial on the criminal charges commenced November 19, 1979. At that time defendant moved for a discharge, alleging the violation of his right to a speedy trial, and the trial court denied his motion.
Nothing in the record indicates that the defendant was held in custody in connection with the second delinquency petition until July 26, 1979, at which time he was produced in court in response to the writ of habeas corpus, the order for which was entered on July 23, 1979, and the writ itself was dated July 24, 1979. Until July 26 the defendant was in custody and being held as a result of the adjudication of delinquency in the previous case pursuant to the order of June 14, 1979. The Juvenile Court Act severely limits the authority to hold a minor in custody. (See Ill. Rev. Stat. 1979, ch. 37, pars. 703-1, 703-4, 703-5, 703-6.) The record in the second delinquency proceeding contains no findings or orders as required by these sections of the Act as a prerequisite to holding the minor in custody. On the date the second delinquency petition was filed and at all times thereafter until July 26, 1979, the defendant was being held in custody under a detainer order entered in the earlier delinquency case, following an adjudicatory hearing. The record discloses that on July 26, 1979, the defendant was present in court in custody of the sheriff. He had been delivered to the sheriff by the Department of Corrections, juvenile division, in response to the writ of habeas corpus issued in the second proceeding.
Section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103-5) provides:
"Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody * * *."
Under this section the defendant must be held in custody for the charge for which he is being prosecuted before the 120-day period on that charge begins to run. That period, however, may begin to run at the time of arrest and before the defendant has been formally charged. (People v. Jones (1965), 33 Ill.2d 357, 360; People v. Sexton (1972), 6 Ill. App.3d 779, 781; People v. Nettles (1969), 107 Ill. App.2d 143, 149.) In our case the defendant was not held in custody under any order relating to this offense or the second delinquency petition until July 26, 1979, when he was returned to the circuit court of Macon County pursuant to the writ of habeas corpus. Under the Juvenile Court Act, a minor cannot be held in custody except in conformance of the requirements of that Act. Since no order was entered restraining defendant in the second case until July 26, 1979, the 120-day period had not run when the defendant was brought to trial on November 19, 1979.
Furthermore, we are convinced that the 120-day period should not commence in such cases until the court enters an order authorizing the juvenile to be prosecuted as an adult for the offense he allegedly committed. (See Ill. Rev. Stat. 1979, ch. 37, par. 702-7.) In this case that order was entered August 10, 1979. This conclusion is prompted by the distinctly different nature of the two proceedings; those under the Juvenile Court Act, and proceedings under the Criminal Code of 1961 and the Code of Criminal Procedure of 1963.
The reason for this conclusion is found in the very language of section 103-5 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5.) It is apparent from the language of this section that it relates to the criminal prosecutions only. Section 103-5 applies only to persons held in custody for an alleged offense. An offense is defined in the Criminal Code of 1961 as "a violation of any penal statute of this State." (Ill. Rev. Stat. 1979, ch. 38, par. 2-12.) In a proceeding under the Juvenile Court Act, the minor is not held in custody for an alleged offense. The Juvenile Court Act provides that no minor shall be denominated a criminal by reason of an adjudication under the Act, nor shall any adjudication be denominated a conviction. (Ill. Rev. Stat. 1979, ch. 37, par. 702-9.) As noted earlier, the Act strictly limits the authority to hold a minor in custody. Under the Act the minor is not held in custody for an alleged offense, but pursuant to an order of the court which may be entered under the limited conditions provided in the Act. For example, prior to the adjudicatory hearing, the court at a detention hearing can only order the minor detained, not as a result of the alleged offense, but only if the court finds that detention is necessary for the protection of the minor or of the person or property of another or that the minor is likely to flee the jurisdiction of the court. (Ill. Rev. Stat. 1979, ch. 37, par. 703-6.) Following an adjudicatory hearing, the court does not find the minor guilty of an offense, but finds him to be a delinquent minor pursuant to the Juvenile Court Act, and not under the provisions of the Criminal Code of 1961 or the Code of Criminal Procedure of 1963. Also, if the court orders the minor detained under the Act, there is no provision that permits him to avoid detention by posting bail.
Other States, in construing the language of their rules and statutes similar to that contained in our section 103-5 of the Code of Criminal Procedure of 1963, have held that their speedy trial requirements do not apply to minors while under the jurisdiction of the juvenile court. In State v. White (Iowa 1974), 223 N.W.2d 173, 175, the supreme court of Iowa considered the language in its code which provided:
"`When a person is held to answer for a public offense, if an indictment be not found against him in thirty days, the court must order the prosecution to ...