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In Re Rivera

OPINION FILED DECEMBER 9, 1983.

IN RE VINCENT RAMON RIVERA, A MINOR — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

VINCENT RAMON RIVERA, RESPONDENT-APPELLANT).



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

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal presents a question not previously addressed by this court: whether a minor who has twice been adjudicated a delinquent and who is thereafter charged in a delinquency petition with having committed the offense of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-1) may be subjected to the provisions of the Habitual Juvenile Offender Act (the Act). (Ill. Rev. Stat. 1981, ch. 37, par. 705-12.) The background of this case is as follows.

A petition for adjudication of wardship was filed alleging that the respondent was delinquent because

"[O]n or about March 10, 1982, at Cook County, Illinois, [he] committed the offense of Burglary in that he, without authority knowingly entered a part of a building, the property of Denise Seay, with the intent to commit therein a theft, in violation of Chapter 38, Section 19-1(a)."

The State served respondent with a petition and notice of intent to prosecute him as a habitual juvenile offender. (Ill. Rev. Stat. 1981, ch. 37, par. 705-12.) A jury trial was conducted as allowed by the Act, and the jury found respondent "delinquent in that he committed the offense of burglary."

Respondent filed a motion in arrest of judgment on the ground that the delinquency petition did not allege the commission of an offense for which he could be adjudged a habitual juvenile offender. The trial court denied the motion and entered an order committing respondent to the Juvenile Division of the Illinois Department of Corrections.

On appeal, respondent reiterates his argument that he was neither charged with, nor found to be delinquent based upon an offense for which he could be prosecuted as a habitual juvenile offender. The relevant segment of the habitual juvenile offender statute provides:

"(a) Any minor having been twice adjudicated a delinquent minor for offenses which, had he been prosecuted as an adult, would have been felonies under the laws of this State, and who is thereafter adjudicated a delinquent minor for a third time shall be adjudged an Habitual Juvenile Offender where:

1. The third adjudication is for an offense occurring after adjudication on the second; and

2. the second adjudication was for an offense occurring after adjudication on the first; and

3. the third offense occurred after January 1, 1980; and

4. the third offense was based upon the commission of or attempted commission of the following offenses: murder, voluntary or involuntary manslaughter; rape or deviate sexual assault; aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm to the victim; burglary of a home or other residence intended for use as a temporary or permanent dwelling place for human beings; home invasion; robbery or armed robbery; or aggravated arson." Ill. Rev. Stat. 1981, ch. 37, par. 705-12(a).

There is no issue raised here concerning the requisite elements set forth in subparagraphs (a)1 through (a)3. Respondent's contention is that subparagraph (a)4 is not satisfied since the burglary offense with which he was charged was not based upon the commission of "burglary of a home or other residence intended for use as a temporary or permanent dwelling place for human beings." Respondent's argument is premised on the fact that he was specifically alleged to be delinquent for having committed the offense of burglary in violation ...


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