Appeal from the Circuit Court of Kane County. No. 91-J-414. Honorable Richard D. Larson, Judge, Presiding.
The opinion of the court was delivered by: Inglis
PRESIDING JUSTICE INGLIS delivered the opinion of the court:
The State filed a petition seeking to adjudicate respondent, J.R., a delinquent minor. The State alleged that respondent committed the offenses of aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a) (now codified, as amended, at 720 ILCS 5/12-4.2(a) (West 1992))), armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2 (now 720 ILCS 5/33A-2 (West 1992))), and mob action (Ill Rev. Stat. 1991, ch. 38, par. 25-1(a)(1) (now 720 ILCS 5/25-1(a)(1) (West 1992))).
On the date set for the adjudicatory hearing, the State requested a continuance, which the trial court denied. When the State was unable to proceed with the hearing and refused to move for dismissal, the trial court directed a finding in respondent's favor. The trial court also dismissed as untimely the State's motion to prosecute respondent under the criminal laws (Ill. Rev. Stat. 1991, ch. 37, par. 805-4(3) (now codified, as amended, at 705 ILCS 405/5-4(3) (West 1992))). The State appeals, arguing that the trial court abused its discretion in failing to grant a continuance and failing to consider the merits of its motion to prosecute respondent under the criminal laws. For the following reasons, we reverse.
The State filed its petition for adjudication on September 30, 1991, and the trial court held a hearing on that date. The State notified the court that it intended to seek detention. Respondent stipulated to probable cause but requested homebound detention. Randy Reusch of the homebound detention program testified that respondent was not eligible for homebound detention because of the seriousness of his alleged conduct and because respondent was on probation at the time of the offense. The trial court therefore ordered detention of respondent and set the adjudicatory hearing for October 9, 1991.
On October 3, 1991, the State moved to continue the date of the adjudicatory hearing and to detain the minor until the date of the adjudicatory hearing. At the October 7, 1991, hearing on this motion, respondent objected to a continuance. The trial court continued the hearing until October 25, 1991, at 9:30 a.m. The prosecutor caused subpoenas to be issued directing the State's witnesses to appear on October 25, 1991, to testify at respondent's adjudicatory hearing. Some of these subpoenas listed the time of the hearing as 1 p.m. and some listed it as 1:30 p.m. The prosecutor also caused respondent to be summoned to appear at his adjudicatory hearing on October 25, 1991, at 1 p.m.
On October 23, 1991, the State moved for permission to prosecute respondent as an adult under the criminal laws rather than as a juvenile under the Juvenile Court Act of 1987 (Act). (See Ill. Rev. Stat. 1991, ch. 37, par. 805-4(3) (now codified, as amended, at 705 ILCS 405/5-4(3) (West 1992)).) The cause proceeded to a hearing on October 25, 1991, at 9:30 a.m. Respondent, who had been summoned to appear at 1 p.m., was not present. Respondent's attorney argued that she had insufficient notice of the State's motion to try respondent under the criminal laws but that she was prepared to proceed with the juvenile adjudicatory hearing.
The prosecutor admitted that it was her fault that neither the minor nor the other witnesses were present because they had been directed to appear in the afternoon. She requested an alternate date for the hearing on the State's motion to transfer the cause to criminal court. The prosecutor also asked that respondent be released from detention in order to limit the length of his pre-adjudication detention. She also requested a continuance until afternoon. The trial court was unwilling to postpone the hearing for any length of time. It therefore dismissed as untimely the State's motion to try respondent under the criminal laws. It also denied the State's motion to continue the adjudicatory hearing. The trial court stated that it could not conduct the hearing that afternoon because its docket was full. The court further stated that it was unwilling to delay the hearing until a future date.
The court allowed the State a short recess. When the court reconvened at 10:08 a.m., respondent was present. Several of respondent's witnesses were also present. The prosecutor stated that the State was unable to proceed. The trial court refused to grant respondent's motion to dismiss outright, and it purported to conduct a trial. However, because the State had presented no evidence, the trial court directed a finding of not guilty.
The State argues on appeal that although the trial court purported to conduct a trial on the State's petition, the court's actions amounted to dismissing the State's petition as a sanction for the State's failure to be prepared to proceed at the 9:30 a.m. hearing. The State argues that the trial court abused its discretion in refusing to grant a continuance. Respondent contends on the other hand that the trial court was correct in refusing to grant a continuance to the State. According to respondent, granting a continuance so that the State could present its motion to try respondent as an adult would have deprived him of due process.
In resolving this case we must keep in mind that "the juvenile court's function is to ensure that the best interest of the minor respondent, his family and society are served." ( In re J.A. (1993), 241 Ill. App. 3d 402, 405, 182 Ill. Dec. 452, 609 N.E.2d 986.) We agree with the State that the "trial" in this case was actually "a sham, an artifice employed by the trial Judge to achieve the result of a dismissal with prejudice for want of prosecution." People v. Deems (1980), 81 Ill. 2d 384, 389, 43 Ill. Dec. 8, 410 N.E.2d 8.
A trial court is only authorized to dismiss the State's petition in this way if allowing the State to prosecute the petition would violate respondent's right to due process. ( In re C.T. (1983), 120 Ill. App. 3d 922, 925-27, 76 Ill. Dec. 435, 458 N.E.2d 1089.) Therefore, the trial court's refusal to grant a continuance to the State where such refusal amounted to the dismissal of the State's petition constituted an abuse of discretion, unless the dismissal of the State's petition would have prevented a "clear deprivation of due process." C.T., 120 Ill. App. 3d at 928.
Nothing in the record suggests that respondent would have been unduly prejudiced by a continuance of the adjudicatory hearing. Although respondent's attorney objected to a continuance, she articulated no reasons why a continuance would prejudice respondent. The State agreed to release respondent from detention so that ...