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In Re Mccall

OPINION FILED JULY 22, 1982.

IN RE NICK MCCALL ET AL., MINORS — (THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,

v.

NICK MCCALL ET AL., DEFENDANTS-APPELLEES.)



Appeal from the Circuit Court of Cook County; the Hon. Joseph C. Mooney, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

In this consolidated appeal, the State appeals the dismissal by the juvenile division of the circuit court of Cook County of the petition for adjudication of wardship of three minor defendants, Nick McCall, Constance Lindley, and Leroy Bono. The State argues that the trial court's dismissal of the charges against defendants on the ground that the detention hearing was not held within the 36 hours required by the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 703-5(1)) was an inappropriate remedy for the violation. Defendant McCall argues in addition that the State's filing of a late notice of appeal in his case was improper, and therefore the appeal as to McCall should be dismissed. We vacate the order allowing the State to file a late notice of appeal and dismiss the appeal in the case of defendant McCall, and reverse and remand for hearings on the State's petitions for adjudication of wardship in the cases of defendants Lindley and Bono.

FACTS

The three minor defendants, McCall, Lindley, and Bono, were arrested and taken into custody by Chicago police officers on March 24, 1980, at 4:10 p.m. They were charged with burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19-1) in that they knowingly entered a building with the intent to commit theft therein. Petitions for adjudication of wardship were filed, and a hearing was held on the petitions on March 26, 1980, at 1:30 p.m.

On July 15, 1980, McCall's attorney filed a motion to dismiss the petition for adjudication of wardship. The motion stated that McCall was held in custody for 45 hours before he was given a detention hearing, which was a violation of the following Juvenile Court Act provision:

"Unless sooner released, a minor * * * taken into temporary custody must be brought before a judicial officer within 36 hours, exclusive of Saturdays, Sundays and court-designated holidays, for a detention hearing or shelter care hearing to determine whether he shall be further held in custody." (Ill. Rev. Stat. 1979, ch. 37, par. 703-5(1).)

He also argued that as a result of the State's failure to comply with this statute, McCall was denied due process of law. On July 25, 1980, the circuit court of Cook County, juvenile division, dismissed the charges against McCall, holding that the nine-hour delay beyond the authorized 36-hour period before holding a detention hearing was a violation of due process. On September 11, 1980, the charges against Lindley and Bono were dismissed for the same reason.

The State filed a timely notice of appeal in the Lindley and Bono cases on October 9, 1980. On May 12, 1981, the State moved this court to consolidate the Lindley and Bono appeals with the McCall case. On May 13, 1981, the State petitioned this court for leave to file notice of appeal in the McCall case instanter. On May 21, 1981, this court entered an order allowing the State to file its notice of appeal instanter as the State had requested.

OPINION

I

Defendants contend that the appeal by the State in the case of defendant McCall should be dismissed for failure of the State to file its late notice of appeal in a timely manner. We agree. Illinois Supreme Court Rule 606(c) (73 Ill.2d R. 606(c)), under which the State filed its "petition for leave to file the notice of appeal instanter" provides as follows:

"(c) Extension of Time in Certain Circumstances. On motion supported by a showing of reasonable excuse for failing to file a notice of appeal on time filed in the reviewing court within 30 days of the expiration of the time for filing the notice of appeal, or on motion supported by a showing by affidavit that there is merit to the appeal and that the failure to file a notice of appeal on time was not due to appellant's culpable negligence, filed in the reviewing court within six months of the expiration of the time for filing the notice of appeal, in either case accompanied by the proposed notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing." (Emphasis added.)

• 1 The circuit court dismissed the charges against McCall on July 25, 1980. The State requested leave to appeal on May 31, 1981, almost 10 months later and well beyond the maximum seven-month period provided by the Rule for this court to permit a late notice of appeal to be filed.

We have reviewed the cases cited by the State to support its argument that dismissal of its appeal as to defendant McCall would be "a travesty of justice" and have concluded that they do not support the State's position. These cases (e.g., People v. Brown (1973), 54 Ill.2d 25, 294 N.E.2d 267; People v. Joseph (1975), 37 Ill. App.3d 315, 337 N.E.2d 110) involved appeals by defendants whose failure to file a timely notice of appeal was demonstrably excusable *fn1 and in which no prejudice would result from the reviewing court's granting of defendants' ...


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