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02/03/87 In Re J. M.


February 3, 1987

IN RE J. M., A MINOR, RESPONDENT-APPELLANT

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

503 N.E.2d 1167, 151 Ill. App. 3d 1037, 105 Ill. Dec. 161

February 3, 1987.

Appeal from the Circuit Court of Du Page County; the Hon. Kevin P. Connelly, Judge, presiding. 1987.IL.115

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Respondent, the minor's father, appeals from the trial court's order adjudicating J.M. a minor requiring authoritative intervention. (Ill. Rev. Stat. 1985, ch. 37, par. 702-3). The State filed a motion to dismiss the appeal which we ordered taken with the case. On review, we conclude that the appeal should be dismissed because it is not an appeal from a final judgment or a proper interlocutory appeal.

The State filed a petition alleging that J.M. was a minor who was absent from the home without the consent of her parents and beyond their control in circumstances which constituted a substantial or immediate danger to the minor's physical safety. J.M. was placed in the temporary custody of an appointed guardian.

An adjudicatory hearing was held, at which time J.M. was found to be a minor requiring authoritative intervention. The question of wardship was reserved for the Dispositional hearing which was scheduled to be held later. The Dispositional hearing never took place because the respondent filed a pro se notice of appeal pursuant to Supreme Court Rule 303 (103 Ill. 2d R. 303), which governs the appeal of final judgments. Respondent amended the notice of appeal so that it would be considered an interlocutory appeal under Supreme Court Rule 307 (87 Ill. 2d R. 307).

We lack jurisdiction to entertain respondent's appeal because he did not appeal from a final judgment. In proceedings under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701.1 et seq.), a Dispositional order results in a final judgment for appeal purposes. (In re J.N. (1982), 91 Ill. 2d 122, 127.) In this case, no Dispositional order was filed; rather, only an adjudicatory hearing was held. Adjudicatory orders are generally not appealable because they are not final orders. See, e.g., In re Johnson (1981), 102 Ill. App. 3d 1005, 1014; In re Smith (1980), 80 Ill. App. 3d 380, 381.

One case has held that an adjudication of wardship is a final judgment for the purposes of an appeal. (In re Tingle (1977), 52 Ill. App. 3d 251, 255.) The court in Tingle relied on section 4-8(3) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 704-8(3)) which provided that an adjudication of wardship was final and appealable. In 1978, section 4-8(3) was deleted. Under existing law, therefore, adjudicatory orders by themselves are not appealable.

The appellate court has jurisdiction to review only final judgments, except where a rule of the supreme court provides for an interlocutory appeal. (In re J.N. (1982), 91 Ill. 2d 122, 126.) The only such specific provision is Supreme Court Rule 662 (87 Ill. 2d R. 662), which grants a right of appeal from the orders of wardship when an order of Disposition is not entered within 90 days thereafter. (In re Hershberger (1985), 132 Ill. App. 3d 332, 334.) Respondent failed to comply with Rule 662 since 90 days had not elapsed since the adjudicatory order. In fact, less than 30 days had passed since the date of the adjudicatory order and the date a pro se notice of appeal was filed. Moreover, technically, the court reserved the question of wardship until the Dispositional hearing.

The reason behind Supreme Court Rule 662 is explained in the committee comments, which provide:

"In juvenile court proceedings, there is a two-step procedure. First a hearing is held to adjudicate the subject juvenile a ward of the court; then there is a separate hearing resulting in a Disposition. If the Dispositional hearing and order follow closely the adjudicatory hearing and order, judicial efficiency dictates that an appeal should be taken after Disposition. If there is a long delay in disposing of the case, however, Rule 662 provides that an appeal may be taken from the first order. The period set is 90 days to account for normal delay caused by administrative problems. After that period, if the Dispositional hearing has not been held, the juvenile may appeal. In such a case he must file his notice of appeal within 30 days of the expiration of the period, and not after. Thus the 6 months period for application for leave to appeal provided in Rule 605(c) has no application. For similar reasons, the same provisions are applied to appeals from orders revoking probation or conditional discharge in juvenile cases." (87 Ill. 2d R. 662, Committee Comments.)

Rule 662 is properly invoked where parents contest a determination that their son was a minor in need of supervision and the adjudication of wardship when the Dispositional order had not been entered within 90 days of adjudication. (In re Polovchak (1983), 97 Ill. 2d 212, 222-23, cert. denied (1984), 465 U.S. 1065, 79 L. Ed. 2d 740, 104 S. Ct. 1413.) In this case, where no such delay existed, we have no authority to review the case.

Further, although respondent's amended notice of appeal is designated as under Supreme Court Rule 307 (87 Ill. 2d R. 307), the appeal was not properly brought pursuant to the rule. Rule 307(a)(6) provides that an appeal may be taken to an appellate court from an interlocutory order of the court which terminates parental rights or granting, denying, or revoking temporary commitment in adoption cases. The adjudicatory order here did not terminate parental rights. It merely found that the minor was a minor requiring authoritative intervention as described by section 2-3 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702-3).

For the foregoing reasons, the appeal is dismissed, and the cause is remanded for the purpose of conducting a Dispositional hearing.

Dismissed and remanded.

This is an appeal from an order of the circuit court of Ogle County revoking the probation of the defendant, George Brechon, and sentencing him to two years in the Department of Corrections.

On June 5, 1984, the defendant pleaded guilty to the offenses of unlawful possession of more than 500 grams of cannabis (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(e)) and theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1).). On November 8, 1984, he received concurrent sentences of probation. He was also ordered to perform 40 hours of public service and pay a fine of $500.

On July 3, 1985, the State's Attorney filed an amended petition to revoke probation which, in pertinent part, charged as follows:

"As a condition of his probation, the defendant was not to leave the State of Illinois without the consent of the Court. In violation of this order, the defendant on or about June 28, 1985, left the State of Illinois and went to the State of Minnesota without the Court's permission."

Defendant's defense was that he thought he had permission to attend Army Reserve at Camp Ripley, Little Falls, Minnesota.

This court notes that other petitions to revoke defendant's probation had been filed charging more serious offenses, but the State elected not to proceed on the petitions, and they will not be considered on appeal.

The facts are undisputed that defendant had been in the Army Reserve for 16 years and was ordered to go to reserve camp at Camp Ripley, Little Falls, Minnesota, from June 28 to July 14, 1986. There is no question that he did in fact attend camp.

Jill Evans, the defendant's probation officer testified that the defendant had reported to her on June 10, 1985. She had been on the job since May 6, 1985, and the June 10 meeting was her first interview with defendant. Her testimony, in pertinent part, provides:

"Q. Did you docket anything or do you remember anything about George Brechon saying to you that he had to go to summer camp?

A. I don't remember him saying that.

Q. Does that mean he didn't say it or you just don't remember?

A. I don't remember. It wouldn't -- if he did not state that he was going out of State, I would not necessarily click in my mind that -- I mean there's plenty of camps in Illinois, so it wouldn't click in my mind that anything would need to be done.

Q. But it's possible that he talked to you about Army Reserve camp?

A. Possible, not probable."

Evans noted that the defendant talked with her for approximately 15 minutes on June 10, 1985. Evans knew that defendant was in the Army Reserve.

Linda Ketcham, a counselor with the Youth Service Bureau, testified that she saw the defendant on June 10, 1985. He had discussed his pending trip to army reserve camp, which had caused him to re-schedule July's appointment. Ketcham described defendant as very responsible and forthright.

Defendant testified that he had a court date on June 10, 1985, and following that hearing he proceeded to see his probation officer (Evans) and his counselor (Ketcham). He testified that he had received his orders to go to reserve camp in Minnesota. He stated that Evans asked a number of questions during the interview as she examined his file and he told her about his orders to go to camp. He further testified that he left the probation office and proceeded to Ketcham's office where he also informed her that he was going to camp in Minnesota. On cross-examination, he explained that he thought that if he informed the probation officer, an officer of the court, of his intention to leave the State that he would comply with the terms of his probation. He stated he received his orders early in June. He explained that on previous occasions when he had been on probation he handled his reserve camp in a similar manner.

Based on the record, the trial court stated that he believed the defendant had wilfully violated the conditions of his probation. This finding is not supported by a preponderance of the evidence as required by section 5-6-4(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-4(c)). A determination by the trial court will be reversed only when it is contrary to the manifest weight of the evidence. (People v. Owens (1983), 116 Ill. App. 3d 51, 56, 451 N.E.2d 988; People v. Wadelton (1980), 82 Ill. App. 3d 684, 687, 402 N.E.2d 932.) Here, defendant's counselor and defendant both testified that defendant had discussed his impending trip. Moreover, defendant's probation officer could not deny that he also discussed it with her. We conclude the findings of the trial court are contrary to the manifest weight of the evidence.

The second point raised by the defendant that the mittimus should be corrected to reflect that the theft was a Class 4 felony was agreed to by the State, and the trial court is directed to make that correction.

The judgment of the circuit court of Ogle County is reversed and vacated and remanded with directions.

Reversed and vacated and remanded with directions.

CASE RESOLUTION

Appeal dismissed and cause remanded.

19870203

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