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12/21/89 Daniel M. Kirwan, Deputy v. Thomas M. Welch

December 21, 1989

APPELLATE DEFENDER, FIFTH JUDICIAL DISTRICT, PETITIONER

v.

THOMAS M. WELCH, JUSTICE OF THE APPELLATE COURT, ET AL., RESPONDENTS



SUPREME COURT OF ILLINOIS

DANIEL M. KIRWAN, Deputy Defender, Office of the State

549 N.E.2d 348, 133 Ill. 2d 163, 139 Ill. Dec. 836 1989.IL.2002

Original proceeding for mandamus or supervisory order.

APPELLATE Judges:

JUSTICE CLARK delivered the opinion of the court. JUSTICE RYAN, Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK

Defendant, Curtis M. Koch, was convicted of battery, a Class A misdemeanor, following a bench trial in the circuit court of Richland County and was sentenced to 12 months of court supervision, fined $60 in court costs and required to complete 12 months of counseling. The defendant filed a timely notice of appeal and the circuit court appointed the office of the State Appellate Defender, Fifth Judicial District, to represent the defendant on appeal. The State Appellate Defender (petitioner) filed a motion before the appellate court to withdraw as counsel on the grounds that the State Appellate Defender Act (Ill. Rev. Stat. 1987, ch. 38, par. 208-1 et seq.) does not authorize the office of the State Appellate Defender to represent the defendant in his appeal. The appellate court denied the petitioner's motion to withdraw. Petitioner subsequently filed the present action asking this court to issue a writ of mandamus (107 Ill. 2d R. 381) or a supervisory order (107 Ill. 2d R. 383) directing the respondents, the Justices of the Appellate Court, Fifth District, to grant the petitioner's motion to withdraw as counsel.

The issue here focuses on the authority of the circuit court to appoint the State Appellate Defender to represent the defendant in an appeal from a Disposition of supervision.

We begin by looking to the State Appellate Defender Act (the Act) (Ill. Rev. Stat. 1987, ch. 38, par. 208-1 et seq.) in which the legislature described the circumstances under which the State Appellate Defender may be appointed to represent indigents on appeal. We recognize that in construing the Act we must ascertain and give effect to the legislature's intent in enacting the statute (Maloney v. Bower (1986), 113 Ill. 2d 473, 479) and, accordingly, we look to the language of the statute itself as the best indication of the intent of the drafters. See People v. Robinson (1982), 89 Ill. 2d 469, 476.

Section 10(a) of the Act provides:

"(a) The State Appellate Defender shall represent indigent persons on appeal in criminal cases other than misdemeanor cases not involving a sentence of imprisonment, when appointed to do so by the Supreme Court, the Appellate Court, or the Circuit Court or any branch thereof." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 208-10.

The Appellate Defender argues that the language of the statute is clear and unambiguous and that, under the Act, he may only be appointed to represent indigents in misdemeanor cases in which a sentence of imprisonment has actually been imposed. He contends that an order of supervision is a final judgment (see Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-3.1(g) (stating that "[a] Disposition of supervision is a final order for the purposes of appeal")) which does not involve imprisonment and, consequently, the Appellate Defender may not be appointed to represent the defendant in his appeal from an order of supervision.

The respondents contend that such a construction is unrealistic and does violence to the spirit and purpose of the Act, which is to provide efficient, cost-effective representation to indigent appellants. They maintain that a Disposition of supervision is an interlocutory order which defers proceedings in the case, not a final judgment which disposes of the case. (See People v. Tarkowski (1981), 100 Ill. App. 3d 153 (stating that a Disposition of supervision is not a final judgment).) Since the defendant remains eligible for a term of imprisonment in the event he does not successfully complete supervision, the respondents claim that the case involves imprisonment and that the Appellate Defender was properly appointed to represent the defendant in his appeal.

To resolve this issue, we must examine the nature of supervision. Upon a plea or a finding of guilty, or on stipulated facts, a trial court may enter an order for supervision. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-1(c).) Supervision is defined as "a Disposition of conditional and revocable release . . . at the successful Conclusion of which Disposition the defendant is discharged and a judgment dismissing the charges is entered." (Ill. Rev. Stat. 1987, ch. 38, par. 1005-1-21.) When a defendant is placed on supervision, judgment on the charges and all further proceedings are deferred until the Conclusion of the period of supervision. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005-6-3.1(a), (d).) If the defendant successfully completes his supervision, the defendant is discharged and a judgment dismissing the charges is entered. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-3.1(e).) A discharge and dismissal upon a successful Conclusion of supervision is without an adjudication of guilt and does not result in a conviction for purposes of disqualification or disabilities imposed by law. (Ill. Rev. Stat. 1987, ch. 38, par. 1005-6-3.1(f).) However, if a defendant violates the ...


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