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People v. Burkhart

OPINION FILED JULY 26, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GEORGE BURKHART, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On April 30, 1979, a petition was filed in the circuit court of McLean County alleging defendant, George Burkhart, to be a sexually dangerous person within the meaning of section 1.01 of the Sexually Dangerous Persons Act. This section, at all times pertinent, provided:

"As used in this Act:

All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons." (Ill. Rev. Stat. 1977, ch. 38, par. 105-1.01.)

The petition was filed in a criminal proceeding where defendant (1) had been charged in a six-count indictment, and (2) eventually entered a plea of guilty to one of the counts.

Defendant had entered his plea of guilty pursuant to an agreement with the State that if he would enter the plea and admit the allegations of the petition, he would (1) receive a sentence of six years' imprisonment, and (2) if found to be sexually dangerous by court-appointed psychiatrists, be committed as sexually dangerous. The parties agreed that incarcerations imposed would run concurrently. On November 2, 1979, the court imposed the six-year sentence and pronounced, in open court, an order declaring defendant to be sexually dangerous and committing him as such. The pronouncement required the submission of a written judgment which was signed and placed on file on November 5, 1979. The remaining counts of the indictment were nol prossed on November 2, 1979, apparently after the pronouncement of the commitment order.

On July 1, 1982, defendant filed in the trial court the instant application maintaining that he had recovered (Ill. Rev. Stat. 1981, ch. 38, par. 105-9). After an evidentiary hearing on the application, the trial court entered an order on October 12, 1982, denying all relief. Defendant appeals, contending (1) the order finding him sexually dangerous was void, and (2) the denial of his application was contrary to the manifest weight of the evidence. His contention that his commitment was void is based on theories raised for the first time on appeal and it attacks a final order from which no appeal was taken. However, a void order can be attacked at any time. Filosa v. Pecora (1974), 18 Ill. App.3d 123, 309 N.E.2d 356.

We affirm the decision of the trial court.

Defendant's contention that the original commitment was void is based on the concurrent validity of three theories, each of which presents complicated questions. These theories are that: (1) The Sexuality Dangerous Persons Act prohibits adjudicating a defendant to be sexually dangerous based upon the same conduct for which he has been convicted in a concurrent criminal proceeding; (2) that procedure was followed in this case; and (3) the statutory violation deprived the court of subject matter jurisdiction to rule on the petition.

Section 3 of the Act provides for the initiation of proceedings. It states that the prosecution may file a petition in the circuit court alleging that a person is sexually dangerous when it appears to the prosecutor that the person is sexually dangerous and that person "is charged with a criminal offense." (Ill. Rev. Stat. 1977, ch. 38, par. 105-3.) Section 9 of the Act concerns proceedings for discharge of a person previously adjudged to be sexually dangerous. It states, in part, that: "Upon an order of discharge every outstanding [criminal charge], the basis of which was the reason for the present detention, shall be quashed." (Ill. Rev. Stat. 1977, ch. 38, par. 105-9.) Even though the Act has no provision expressly requiring the existence of pending charges at the time of the adjudication of sexual dangerousness, defendant asserts that both the purpose of the statute and precedent require such a construction be placed upon the statute. For reasons subsequently stated, we need not decide this question.

The supreme court case relied on by defendant is People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736. There, a defendant was charged with a sexual offense. The prosecutor filed a petition under a statute similar to the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1947, ch. 38, par. 820 et seq.) recommending commitment of the defendant. The defendant refused to comply with an order directing him to submit to examination by psychiatrists and was held to be in direct contempt of court and sentenced to jail until he complied. The court then tried the defendant on the criminal charge and defendant was convicted and sentenced. He then appealed the contempt conviction. The supreme court reversed the conviction holding that: (1) The purpose of the statute, like similar legislation, was to determine whether the accused had a mental disorder such that he should not be tried for the criminal charge until he had recovered from the mental disorder; (2) the contempt proceeding was civil in nature and was for the purpose of compelling the defendant to submit to the examination; and (3) as the defendant had been convicted, the trial court could no longer stay the prosecution. The court reasoned that as there would be no purpose in determining the defendant's mental condition after he had been convicted, the court would have no jurisdiction to do so and any order on that issue would be void.

• 1 As the Redlich court indicated, the focus of the legislation involved there was whether the accused had a mental condition preventing trial until recovery. That legislation stated that upon determination of recovery, the person should be committed to the sheriff of the county where the criminal charges were made so that trial of those charges could proceed. (Ill. Rev. Stat. 1947, ch. 38, par. 825.) Section 9 of the Sexually Dangerous Persons Act states that under similar circumstances those charges which were the basis of the commitment are to be quashed. The purpose of the legislation is no longer to determine whether the defendant can stand trial, but to give the defendant an opportunity to receive help for his propensity to commit sexual offenses and to protect the public from the defendant until release is deemed desirable.

In People v. Patch (1972), 9 Ill. App.3d 134, 293 N.E.2d 661, a person on conditional release under section 9 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1965, ch. 38, par. 105-9) was convicted of a deviate sexual assault committed shortly after the conditional release. Subsequently, the conditional release was revoked because of the same conduct. On appeal from the order of revocation, the appellate court reversed. It cited Redlich for the proposition that after a conviction for a criminal offense, the State could not then proceed to commit a person as sexually dangerous based upon the same criminal conduct. The court concluded that by analogy the State could not obtain a conviction and then have a conditional release revoked for the same conduct.

In People v. Harris (1966), 77 Ill. App.2d 300, 222 N.E.2d 107, a juvenile was charged under both a juvenile petition and under the Sexually Dangerous Persons Act. After evidence was heard, the sexually dangerous person's petition was dismissed with leave to reinstate and the juvenile was found to be a delinquent and committed to the Illinois Youth Commission. Subsequently, the sexually dangerous person's petition was reinstated, a hearing held, and the minor found to be sexually dangerous. That order was reversed on appeal. This court, citing Redlich, held that: (1) Section 3 of the Act was violated in that there were no criminal proceedings pending when the petition was filed; and (2) even if the juvenile proceedings were deemed to be criminal in nature, they were at an end, and subsequent proceedings would be a nullity.

We are not persuaded that the procedure used here violated the Act. The only express statutory requirement for pendency of criminal charges is that contained in section 3 that the charges be pending when the petition is filed. Unlike in Harris, a six-count indictment was pending when the petition was filed here. Unlike in Redlich and Harris, criminal charges were still pending after the court pronounced defendant to be a sexually dangerous person. Count I of the indictment, to which defendant had pleaded guilty, charged him with the lewd fondling of a child on December 6, 1978. Certain other counts charged somewhat similar ...


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