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02/22/94 GILBERT E. v. GILBERT E.

February 22, 1994

IN THE INTEREST OF GILBERT E., A MINOR. THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
GILBERT E., A MINOR, RESPONDENT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR ROSENBLUM, JUDGE PRESIDING.

Rehearing Denied May 27, 1994. Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Campbell, O'connor, Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Respondent, Gilbert E., appeals from an order of the circuit court of Cook County entered December 31, 1991, by which he was committed to one year of probation. Respondent maintains that the circuit court's order must be vacated, because the adjudicatory hearing was not conducted within 120 days of his demand for a hearing, as required by the Juvenile Court Act. (The Act) (Ill. Rev. Stat. 1989, ch. 37, par. 805-14(b)(1)(A).) For the following reasons, we affirm the judgment of the circuit court.

The record sets forth the following relevant facts. On December 13, 1990, respondent was charged in a delinquency petition with one count of aggravated battery. On June 7, 1991, respondent filed a trial demand. The State requested a continuance to August 27, and respondent was released to his mother. On August 27, the State informed the court that it was not ready for trial, because the complaining witness had notified the State that he would not be able to testify due to an injury. The State requested and received a continuance until October 28, 1991.

On October 8, 1991, the court granted the motion of the State to advance and reset instanter, and the case was continued until October 24, 1991. On October 24, respondent presented a motion to dismiss his delinquency petition, and the case was continued until November 4, 1991, for hearing on respondent's motion.

On November 4, a hearing was held on respondent's motion to dismiss. Respondent argued that 123 days had elapsed between June 7, 1991, the date of respondent's trial demand, and October 8, 1991, the first court date following the expiration of the 120-day statutory requirement, which, respondent argued, was October 5, 1991.

The State acknowledged that 138 days had in fact passed since the trial demand was filed, but initially argued that the petition should not be dismissed because a second petition was filed against respondent during the pendency of the present case. The State argued that on October 8, 1991, the State had moved to transfer this second case to the adult (i.e. criminal) court; the Juvenile court denied this motion and the State appealed. The prosecutor argued that the denial of the transfer motion was akin to a "finding" under section 5-14(b)(1)(B) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805-14(b)(1)(B)), which provides in pertinent part:

"If a minor respondent has multiple delinquency petitions pending against him in the same county * * * he shall receive an adjudicatory hearing or have a finding * * * upon at least one such petition before expiration relative to any of such pending petitions of the period described by this Section. All remaining petitions thus pending against the minor respondent shall be adjudicated within 160 days from the date on which a finding relative to the first petition thus prosecuted is rendered pursuant to Section 5-20 of this Act."

Therefore, the State argued it had 160 days from October 18, 1991, to adjudicate the present case.

In the alternative, the State argued that the failure to hold an adjudicatory hearing on delinquency charges within the 120 days pursuant to statute providing for such hearing did not require dismissal of the petition. In support, the State cited In re: M. A. (1985), 132 Ill. App. 3d 444, 477 N.E.2d 27, in which the court held that failure to hold an adjudicatory hearing on delinquency charges within 30 days pursuant to statute did not require dismissal of the petition. The M. A. court construed Section 4-2 of the Act, (Ill. Rev. Stat. 1983, ch. 37, par. 704-2 ), which provided that delinquency petitions "shall be set for an adjudicatory hearing within 30 days." The court, relying on In re: Armour (1974), 59 Ill. 2d 102, 319 N.E.2d 496, concluded that "shall" was merely directory rather than mandatory.

In response, respondent argued that In re: M. A. is inapplicable to the present case because it predates Section 5-14 (b)(1)(A) of the Act which provides that beginning July 1, 1988, "an adjudicatory hearing must be held within 120 days of a demand for such hearing." (Emphasis supplied).

Following arguments, the trial court rejected the State's initial argument that it had 160 days, indicating that an order denying transfer of a case is not a "finding" as a result of an adjudicatory hearing. Subsequently, the trial court entered an order denying respondent's motion to dismiss on the grounds that: (1) the delay caused no prejudice to respondent and (2) it is not mandatory to set an adjudicatory meeting within 30 days. The court concluded that ...


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