Appeal from the Circuit Court of Cook County, the Hons. Earl
E. Strayhorn and E.C. Johnson, Judges, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
In each of the three cases consolidated in this appeal, the trial judge dismissed the respective indictment or information against the defendant on the grounds that the legislature could not constitutionally provide that 15- and 16-year-old defendants must be prosecuted in the adult criminal courts> for the crimes of murder, rape, deviate sexual assault, and armed robbery with a firearm. The statute which is in question is section 2-7(6) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702-7(6)), which provides:
"(a) The definition of delinquent minor under Section 2-2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, rape, deviate sexual assault or armed robbery when the armed robbery was committed with a firearm. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended.
(b) If before trial or plea an information or indictment is filed which does not charge an offense specified in paragraph (a) of subsection (6) of this Section, the State's Attorney may proceed on the lesser charge or charges but only in Juvenile Court pursuant to the other provisions of the Juvenile Court Act, unless prior to trial the minor defendant knowingly and with advice of counsel waives, in writing, his right to have the matter proceed in Juvenile Court. If before trial or plea an information or indictment is filed which includes one or more charges specified in paragraph (a) of subsection (6) of this Section and additional charges which are not specified in such paragraph, all of the charges arising out of the same incident shall be prosecuted pursuant to the `Criminal Code of 1961.'
(c) If after trial or plea the minor is convicted of an offense not covered by paragraph (a) of subsection (6) of this Section, such conviction shall not invalidate the verdict or the prosecution of the minor under the criminal laws of this State. In sentencing the court shall have available any or all dispositions prescribed for that offense pursuant to Chapter V of the Unified Code of Corrections and Article 5 of the Juvenile Court Act."
Section 2-2 defines a delinquent minor as "any minor who prior to his 17th birthday has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance." Ill. Rev. Stat. 1983, ch. 37, par. 702-2.
The facts which are alleged in the case of J.S., No. 59319, are as follows. According to testimony at the preliminary hearing, J.S. entered a Kentucky Fried Chicken restaurant in Chicago on April 2, 1983. J.S. displayed what appeared to be a handgun and ordered a female cashier to give him all the $20 bills in the cash register. The manager stepped up and gave J.S. all the bills in the register. After a demand by J.S. for more bills the manager emptied out a second register and gave J.S. the money. J.S. obtained $79 from the two registers and then fled from the restaurant with the alleged handgun in his hand. J.S. was arrested and charged by information with one count of armed robbery and one count of armed violence predicated upon armed robbery with a gun. J.S. was less than three months from his 17th birthday at the time of the incident.
The facts which are alleged in the case of L.W., No. 59320, are as follows. On November 22, 1983, L.W. accosted a man waiting at a bus stop and pulled him into a vestibule. L.W. hit the man in the face with his fist, searched him, and removed food stamps from the man's wallet. L.W. also found a small knife in the man's pocket and used it to scratch the man on the chest.
L.W. then ordered the man to perform oral copulation upon him. When L.W. allegedly became dissatisfied with the way the man was performing the act, he pulled the man's pants off, ordered him to bend over and forced his penis into the man's anus.
Two police officers who were driving by saw what was happening and arrested L.W. He was charged by information with two counts of deviate sexual assault (oral copulation and anal intercourse), and one count each of robbery, unlawful restraint and aggravated battery.
It is unclear from the record how old L.W. was at the time of the incident. On the original arrest report, L.W.'s date of birth is listed as "10 Mar. 61," and on the arrest card of the Chicago police department his birth date is also listed as "10 Mar. 61." In the order for detention in the juvenile facilities, his birth date is listed as "10 Feb. 66." On the "Affidavit of Assets and Liabilities" his date of birth is listed as "2/10/66." The various pleadings that were filed on L.W.'s behalf by the assistant public defender state that L.W. was 16 years of age at the time of the offense for which he was charged. If L.W. was born on March 10, 1961, he would have been 21 years of age at the time of the offense and would have been within the jurisdiction of the adult criminal courts>. If L.W. was born on February 10, 1966, he would have been 16 years of age at the time of the offense and within the proscription of section 2-7(6) of the Juvenile Court Act which is at issue in this case. We will, in the interest of judicial economy, assume that the February 10, 1966, date is the proper birth date for L.W. and proceed accordingly with this cause. Also, since the trial judge treated L.W. as a minor, we will rely on his judgment in treating L.W. as a minor.
The facts which are alleged in the case of T.F., No. 59556, are as follows. On October 22, 1983, T.F. placed a handgun to the head of a man and took $37, car keys and a hat from the man. T.F. then fired the gun at the man's head, but missed because the man ducked. T.F. was arrested six days later for an unrelated offense and was charged with the armed robbery of the man.
T.F. was charged by an indictment with one count of armed robbery, two counts of armed violence, one of which was predicated upon armed robbery with a gun, attempted murder, and unlawful restraint. At the time of the ...