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In Re L.r.





APPEAL from the Circuit Court of Will County; the Hon. VINCENT J. CERRI, Judge, presiding. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

On July 28, 1978, a delinquency petition was filed against the minor respondent, L.R., alleging that he had committed the offense of burglary. Subsequently, L.R. was placed on two years' supervision. A petition to revoke his supervision was filed on October 2, 1979, alleging that the minor had violated the terms of his supervision by committing a burglary. Thereafter, the juvenile court extended L.R.'s supervision for an additional year. A supplemental petition of delinquency was filed on October 1, 1980, alleging that L.R. had committed the offenses of burglary, battery and theft. L.R. admitted committing the burglary and theft offenses, and the battery charge was dismissed. Following a dispositional hearing on November 13, 1980, L.R. was placed on probation for a period of one year.

On July 1, 1981, a petition to revoke the minor's probation was filed which alleged that L.R. had committed: (1) the offense of burglary when, without authority, he knowingly entered an apartment building which was the residence of Douglas Stegall and John Calise with the intent to commit a theft therein (paragraph 4); (2) the offense of theft of property from Douglas Stegall (paragraph 5); and (3) the offense of theft of property belonging to John Calise (paragraph 6).

At the adjudicatory hearing held on the State's petition, John Calise appeared as a witness but could not remember his address or identify the property L.R. allegedly stole from him. Douglas Stegall identified the property belonging to him and testified that L.R. had not been given permission to enter his apartment or to take any of the stolen items. Following the testimony of police officers who arrested L.R. and recovered the stolen property, the State rested.

Counsel for the minor then moved for a directed verdict of acquittal on the basis that the State had failed to sustain its burden of proof as to either the burglary or the thefts. The trial court granted the minor's motion as to paragraphs 4 (burglary) and 6 (theft of Calise's property) of the petition upon a finding that there has been a "total failure to show ownership and possession." The motion for a directed verdict of acquittal as to paragraph 5 (theft of Stegall's property) was denied.

The minor rested without presenting any evidence. During closing arguments it became clear that the trial judge was confused regarding the wording of the paragraphs in the petition to revoke L.R.'s probation. Apparently, the trial judge erroneously believed that only John Calise was named in the paragraph 4 burglary charge and intended only to direct a verdict of acquittal as to the burglary and theft charges relating to Calise. However, when the fact that Douglas Stegall was also named in the burglary paragraph was made known to the trial judge, he sustained his prior ruling on the minor's directed verdict motion under the erroneous belief that the State was required to prove that the burglarized apartment was the residence of both persons named in the petition.

Following a brief recess, the trial court announced that it had reconsidered its prior ruling granting the minor's motion for a directed verdict as to the paragraph 4 burglary charge:

"I have had occasion to reconsider my ruling with respect to the motion of the Public Defender insofar as the Court's ruling for a directed verdict as to Paragraph 4 of the Petition. That ruling was based primarily upon the failure of Mr. Cilise [sic] to identify any of the items, his identification of the items shown to him was essentially no identification whatsoever.

Based upon that, the Court granted the Defendant's — Respondent's motion for directed verdict.

After considering the matter, I feel that I was incorrect. At best, the naming of John Cilise [sic] was surplusage, the charge does adequately inform the minor of the nature of the allegations contained therein, and therefore, I'm going to reverse myself, and vacate that prior order granting the motion for the directed verdict as to Paragraph 4.

I don't like doing so, nor do I like admitting that I'm incorrect, but I think anyone should realize when he is wrong. In reconsidering the circumstances, I think I'm clearly wrong."

Counsel for the minor declined the court's offer to reopen his case or to continue the cause and argued that the court's initial ruling on the motion for a directed verdict had been correct. A renewed motion for a directed verdict as to paragraph 4 was denied.

The trial court then found that the State had proved by a preponderance of the evidence that the minor had violated the conditions of his probation by committing the offenses of burglary and misdemeanor theft in taking property belonging to Douglas Stegall. L.R.'s probation was revoked, a social investigation report was requested, and the minor's cause was continued for a dispositional hearing.

At the dispositional hearing, held on July 23, 1981, no evidence was presented, but the court considered a dispositional report which revealed L.R.'s extensive series of conflicts with the law. In addition, the report indicated that L.R.'s parents were unable, for other than financial reasons, to care for, protect and discipline the minor. The trial judge then committed L.R. to the Department of Corrections, as had been recommended by the Probation Department.

On July 24, 1981, L.R. filed a notice of appeal. Thereafter, he apparently made an oral, nonspecific motion for a new trial ...

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