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04/25/88 the People of the State of v. A.L.

April 25, 1988





523 N.E.2d 970, 169 Ill. App. 3d 581, 120 Ill. Dec. 59 1988.IL.588

Appeal from the Circuit Court of Cook County; the Hon. Ronald E. Magnes, Judge, presiding.


JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL, P.J., and QUINLAN, J., concur.


The respondent-appellant, A.L., was 16 years old with no prior delinquency record when he was made the subject of a petition for adjudication of wardship filed on September 26, 1984. The State alleged that he had committed the misdemeanor offenses of battery and criminal damage to property. On November 2, 1984, the minor demanded trial. On December 31, 1984, the minor answered ready for trial and then entered a second demand for trial. On April 23, 1985, the minor filed a motion to dismiss for failure to provide a speedy trial.

On May 8, 1985, the State moved to strike the juvenile petition with leave to reinstate the case (a procedure referred to as "stricken on leave" or SOL) as the complainant had failed to appear to testify. The minor asked that, rather than the cause being stricken with leave to reinstate, the cause be dismissed for failure to provide a trial within a reasonable period of time. Following a hearing, the minor's petition to dismiss the petition was denied and the State's motion to strike the petition with leave to reinstate was granted.

On January 10, 1986, the minor filed a motion to reinstate the juvenile petition and to then dismiss the cause for failure to provide a speedy trial. That motion was denied on March 14, 1986. The minor filed a late notice of appeal on July 7, 1986. On June 25, 1986, the State filed a motion to dismiss for failure to state an appealable issue. This motion was taken with the case.

The issue presented for review is whether the juvenile court erred in refusing to dismiss the petition against A.L. for failure to grant the minor a speedy trial. In addition, the minor has also requested that this court reinstate his juvenile petition and then dismiss the petition for failure to provide the minor with a speedy hearing. This we are unable to do, as the State's Attorney, as a member of the executive branch of government, is vested with exclusive discretion on whether to bring charges against a minor. This court cannot, consistent with the principle of separation of powers, assume the role of prosecutor and direct that charges be reinstated against the minor. (See People ex rel. Daley v. Moran (1983), 94 Ill. 2d 41, 51, 445 N.E.2d 270.) Thus, at the present time the charges are essentially in abeyance, subject to reinstatement at the request of the State's Attorney's office. See People v. Sanders (1980), 86 Ill. App. 3d 457, 467, 407 N.E.2d 951.

Because the charges against the minor are in a dormant state, the State's position is that the matter is not final and appealable and therefore this court lacks jurisdiction to consider the appeal. The State relies principally on In re A.M. (1981), 94 Ill. App. 3d 86, 418 N.E.2d 484, in which the court held that as an order of supervision of a minor was a continuance of the cause and did not finally dispose of the petition of delinquency on the merits, the case was not subject to review. The State maintains that the continued supervision of the minor in In re A.M . is analogous to the situation before us in which the minor's petition of delinquency was stricken with leave to reinstate at some unspecified future date.

We do not find the present case analogous to In re A.M. In that case, the court had declined to adjudicate the minor a delinquent but, on the minor's request, had continued the minor under court supervision until age 18 pursuant to section 4-7 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 704-7). The appellate court found the provision allowing for supervision of a minor meaningful and in keeping with the purpose of the Juvenile Court Act, as it permitted supervision of the minor while protecting the minor from the taint of a "record" and at the same time enabled the court to rehabilitate the minor and protect the public. (In re A.M., 94 Ill. App. 3d at 89-90.) The minor here is not merely facing a continuance, however; rather, the SOL procedure allows charges against the minor to pend indefinitely. Moreover, the minor here, unlike the minor in In re A.M., did not request continued supervision. The minor repeatedly requested a speedy hearing on the allegations of delinquency.

Several other cases cited by the State are also not sufficiently analogous to the situation here to support the State's argument that this is not a final appealable order. The cases cited by the State involve two interlocutory appeals from the denial of motions to dismiss (People v. Miller (1966), 35 Ill. 2d 62, 219 N.E.2d 475; People v. Culhane (1975), 34 Ill. App. 3d 158, 340 N.E.2d 63); an appeal from a probation revocation (People v. Nordstrom (1966), 73 Ill. App. 2d 168, 219 N.E.2d 151); and an appeal from a mistrial (People v. Gathings (1984), 128 Ill. App. 3d 475, 470 N.E.2d 1260, appeal denied (1985), 102 Ill. 2d 556.) Thus we do not find them determinative on the question of whether the case before us is reviewable.

In that the SOL procedure employed here indefinitely prolongs the possibility of prosecution with no anticipated termination, we believe that this is a final judgment for purposes of appeal. We find Klopfer v. North Carolina (1967), 386 U.S. 213, 18 L. Ed. 2d 1, 87 S. Ct. 988, to be directly on point.

Klopfer involved an appeal by the defendant from North Carolina's "nolle prosequi with leave" procedure. The procedure allowed the prosecutor to discharge the defendant while indefinitely reserving the right to restore the case for trial. The North Carolina Supreme Court had held that while the defendant had a right to a speedy trial once he had been charged, that right did not require the State to prosecute where it had been given the right to take a nolle prosequi. The United States Supreme Court reversed, finding that the indefinite postponement of the resolution of charges against the defendant violated his right to a speedy trial under the sixth and fourteenth amendments of the constitution. (Klopfer v. North Carolina (1967), 386 U.S. 213, 222, 18 L. Ed. 2d 1, 7, 87 S. Ct 988, 993.) Under the circumstances presented in Klopfer the court concluded that it was not barred from reviewing the merits of the case. As the SOL procedure used by the State of Illinois is in effect ...

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