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03/17/89 the People of the State of v. Thomas Lee Sales

March 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF

v.

THOMAS LEE SALES, DEFENDANT-APPELLEE (JIM EDGAR, SECRETARY OF STATE, APPELLANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 182, 180 Ill. App. 3d 743, 129 Ill. Dec. 498 1989.IL.350

Appeal from the Circuit Court of Lee County; the Hon. Tomas M. Magdich, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. LINDBERG, J., concurs. JUSTICE DUNN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Jim Edgar, as Secretary of State (Secretary), appeals from an order of the circuit court directing the Secretary to issue a restricted driving permit to defendant, Thomas Lee Sales, for the purposes of attending counseling and work. The Secretary contends that the circuit court exceeded its authority by ordering him to issue the RDP to defendant and requests that the order be vacated by this court. Defendant has responded with the argument, made for the first time on appeal, that revocation of defendant's driver's license by the Secretary of State pursuant to section 6-205(b)(2) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-205(b)(2)), which requires the Secretary to so do, is in violation of the due process and equal protection guarantees of the State and Federal Constitutions. See People v. Lindner (1989), 127 Ill. 2d 174.

We find that the Secretary lacks standing to bring this appeal and that it must be dismissed.

The circuit court proceedings from which the Secretary wishes to appeal arose after defendant, Thomas Lee Sales, entered a plea of guilty to two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-16(b)) and on November 6, 1987, was sentenced to concurrent terms of probation for four years, with specified conditions and restrictions which included 60 days of periodic imprisonment. Thereafter, on November 9, 1987, a report of defendant's conviction of a sex offense was mailed to the Secretary by the circuit court clerk, as is required by section 6-204(a)(1) of the Code. On December 3, 1987, an order nunc pro tunc was entered by the circuit court directing the Secretary to issue the restricted driving permit to defendant, and a certified copy of that order was mailed to the Secretary on December 10.

On January 4, 1988, the Secretary filed a notice of appeal to the appellate court from the order directing him to issue the restricted driving permit, and he also then filed in the circuit court a motion for a stay of the order. The Secretary noted in his motion that he was not a party to the proceedings prior to entry of the order, that he believed the order to be improper and that it had been appealed to the appellate court. The stay was denied by the trial court.

The Secretary did not seek to intervene in the circuit court proceeding for relief, nor did he seek to cause the disputed December 3, 1987, order to be vacated by the circuit court.

Section 6-205(b)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-205(b)(2)) requires the Secretary to revoke the driver's license of a person convicted of aggravated criminal sexual abuse, as in the present case, upon the Secretary's receipt of notice of that conviction. However, such a person may receive a restricted driving permit pursuant to subsection (c) of the Code, which provides:

"Whenever a person is convicted of any of the offenses enumerated in this Section, the court may recommend and the Secretary of State in his discretion, without regard to whether such recommendation is made by the court, may, if application is made therefor, issue to such person a restricted driving permit . . .." Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-205(c).

See also 92 Ill. Adm. Code 1001.420 (1985).

In this court the Secretary contends that this statutory language places the ultimate decision to issue or not issue an RDP within the Secretary's discretion, subject only to judicial review by a circuit court after the Secretary has rendered his final administrative decision. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 6-212; see generally Ball v. Edgar (1988), 165 Ill. App. 3d 349, 519 N.E.2d 35; Foege v. Edgar (1982), 110 Ill. App. 3d 190, 441 N.E.2d 1267.) The Secretary ...


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