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12/29/88 the People of the State of v. Andy Lee Cooper

December 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANDY LEE COOPER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 1022, 177 Ill. App. 3d 942, 127 Ill. Dec. 193 1988.IL.1908

Appeal from the Circuit Court of Winnebago County; the Hon. John C. Layng, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

On October 6, 1976, defendant, Andy Lee Cooper, was found to be a sexually dangerous person under the Sexually Dangerous Persons Act (the Act) (Ill. Rev. Stat. 1975, ch. 38, par. 105-1.01 et seq.). On May 9, 1979, defendant was placed on conditional release until May 1, 1981. Neither defendant nor the State moved to discharge defendant on May 1, 1981. Thereafter, on July 9, 1981, defendant was charged with sexual assault in Colorado and subsequently convicted and imprisoned. On September 29, 1983, defendant's conditional release was revoked. Defendant was returned to Illinois custody in December 1986 after completing his prison term in Colorado. Defendant's motion and amended motion to vacate the revocation of defendant's conditional release were denied.

Defendant raises six issues on appeal: (1) whether he could be recommitted under the Act for conduct that happened after May 1, 1981; (2) whether he was denied effective assistance of counsel and whether he should have been appointed a new attorney to enable him to allege ineffective assistance of counsel; (3) whether the court was required to determine that he currently suffered from a mental disorder before recommitment; (4) whether he could be recommitted for an act from which he was convicted; (5) whether the trial court had personal jurisdiction to revoke his release when he was not present at the revocation hearing and did not receive proper notice; (6) whether he was denied due process when the court held a hearing on the petition without securing his presence.

After being found a sexually dangerous person in 1976, defendant was granted a conditional release on May 9, 1979. The order granting release stated that it would last until May 1, 1981. The release order does not require defendant to return to court for a final discharge, but a docket entry from May 9, 1979, states that the case was continued to May 4, 1981, for review. No time was set for review.

The docket entry from May 4, 1981, shows that neither side appeared in court that day. The court continued the matter to the next day. On May 5 the prosecutor appeared, but no one appeared for defendant. The case was continued to May 12. That day the prosecutor appeared and defense counsel, Lance Haddix, appeared. The court requested Haddix to obtain reports from the Department of Mental Health concerning defendant and continued the case to June 2. On June 2, the court continued the case to June 16 for filing of a petition for discharge and a ruling on the same. Haddix failed to file a petition or appear on June 16. The case was continued to June 30. Haddix failed to file a petition or appear on June 30. Defendant made no appearances at these proceedings.

On July 9, 1981, defendant was charged in Colorado with one count of sexual assault in the first degree for an act alleged to have occurred on July 4, 1981. Defendant was found guilty of this charge on June 28, 1982.

A docket entry indicates that on July 21, 1981, Haddix presented defendant's petition for discharge. The case was continued until January 19, 1982. Haddix failed to appear on scheduled court dates in January, February, March, May, and June. Defendant also made no appearances on these dates. In July, the court allowed Haddix to withdraw as counsel. The court appointed the public defender.

On August 31, 1982, the prosecutor filed a petition to revoke defendant's conditional release. Defense counsel requested that a transcript for the release hearing be prepared. The case was continued repeatedly because of difficulty in obtaining a transcript. The transcript was never obtained. On September 29, 1983, a hearing on the petition to revoke was held. Defendant was not present. The court revoked the discharge and ordered defendant returned to Illinois after completion of his sentence in Colorado. The court also granted the prosecutor's request that the May 1979 order be changed nunc pro tunc to replace the word "discharge" with the word "release."

On January 7, 1987, the court denied defendant's motion to vacate and ordered defendant remanded to the Department of Corrections under the Sexually Dangerous Persons Act. On January 20, 1987, the court denied defendant's motion for new counsel to allege ineffective assistance of counsel and denied an amended motion to vacate.

Initially, we note that the timeliness of this appeal is not at issue since defendant contends that the court lacked jurisdiction and a judgment from a court that lacks jurisdiction is void and may be attacked at any time either directly or collaterally. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309.) Further, the absence of transcripts for many of the proceedings does not bar our review since the issues we address are solely questions of law. People v. Scruggs (1987), 161 Ill. App. 3d 468, 470.

Defendant contends that the trial court lacked jurisdiction under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1983, ch. 38, par. 105-1.01 et seq.) to revoke his conditional release. Generally, under the Act, the committing court has continuing jurisdiction to consider petitions by the State concerning a violation of the release order. People v. Davis (1984), 127 Ill. App. 3d 49, 55.

In this case, the release order stated that it was to last until May 1, 1981. Nothing was filed by the State before or on May 1, 1981, to revoke or toll the release, nor did the defendant file for an absolute discharge at this time. On August 31, 1982, the State moved to revoke defendant's release based on defendant's June 28, 1982, conviction for sexual assault on July 4, 1981. The court revoked the conditional release on September 29, 1983. Defendant contends that the court was without jurisdiction because the expiration of the conditional release period terminated the jurisdiction of the court just as in the case of probation (see People v. Martinez ...


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