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04/15/94 J.R. v. J.R.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT


April 15, 1994

IN RE J.R., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
J.R., RESPONDENT-APPELLEE).

Appeal from the Circuit Court of Kane County. No. 91-J-414. Honorable Richard D. Larson, Judge, Presiding.

Inglis, Geiger, McLAREN

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 a continuance would not cause him to suffer any extra pre-adjudicatory detention.

Continuing an adjudicatory hearing, even when respondent is ready to proceed, will not in and of itself deprive respondent of due process, even where the delay is the fault of the State. ( In re L.W. (1988), 171 Ill. App. 3d 1056, 1062, 121 Ill. Dec. 502, 525 N.E.2d 560.) There is no evidence that the prosecutor acted with the intent to harass respondent (see People v. Rudi (1984), 103 Ill. 2d 216, 222, 82 Ill. Dec. 936, 469 N.E.2d 580), and we believe that the prosecutor's actions were not so unreasonable as to warrant dismissal of the State's petition.

"Although the prosecution could be faulted for failure to keep more control over its docket, dismissal of the case is an extreme sanction against the public where it has not been shown that the request for continuance was vexatious or that it was the result of the movant's lack of diligence." ( People v. Jones (1989), 188 Ill. App. 3d 183, 190, 135 Ill. Dec. 575, 543 N.E.2d 1322.)

We conclude that the trial court abused its discretion in denying the State's motion for a continuance and, in effect, thereby dismissing the State's petition for adjudication of wardship.

It follows, then, that the trial court abused its discretion in dismissing as untimely the State's motion to prosecute respondent under the criminal laws. Section 5-4(3) of the Act governs when the State is permitted to try a juvenile 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 only time limitation is contained in section 5-4(3)(a), which provides that the trial court must consider the State's motion prior to the commencement of the adjudicatory hearing. Ill. Rev. Stat. 1991, ch. 37, par. 805-4(3)(a) (now 705 ILCS 405/5-4(3)(a) (West 1992)).

Section 5-4(3)(b) provides a nonexhaustive list of factors for the trial court to consider in determining whether permitting the prosecution under the criminal laws would be in the best interests of the minor and the public. (Ill. Rev. Stat. 1991, ch. 37, par. 805-4(3)(a) (now 705 ILCS 405/5-4(3)(a) (West 1992)).) The timeliness of the State's motion is not among these factors.

Of course, like all proceedings under the Act, transfer proceedings under section 5-4(3) must comport with due process. ( In re F.H. (1989), 190 Ill. App. 3d 321, 330, 137 Ill. Dec. 692, 546 N.E.2d 637.) In this case, the State filed its motion within 30 days after it filed the petition for adjudication and two days before the scheduled adjudicatory hearing. Nothing in the record reveals how the trial court would have deprived the minor of due process by entertaining this petition or continuing it to allow respondent time to respond.

Finally, we note that the "trial" that was held was not an actual attempt by the State to convict respondent, as the State made clear at the outset that it was not prepared to proceed. (See Deems, 81 Ill. 2d at 389.) Thus, even though the trial court pronounced an acquittal, the proceedings did not actually place respondent in jeopardy, and therefore the State is not precluded from retrying respondent. ( Deems, 81 Ill. 2d at 389.) On remand, therefore, the trial court should consider the merits of the State's motion to transfer.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded.

Reversed and remanded.

GEIGER, J., concurs.

Justice McLAREN, specially Concurring.

I specially concur because I agree with the result of the majority but not with the analysis. I do not believe the trial court abused its discretion in refusing to grant the State a continuance.

In this case, the State successfully sought the detention of respondent minor for approximately 30 days by requesting a continuance of the adjudicatory hearing required by the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1991, ch. 37, par. 805-4(3)(a) (now 705 ILCS 405/5-4(3)(a) (West 1992)).) Thereafter, the State filed a motion to prosecute respondent as an adult under the criminal laws rather than as a juvenile under the Juvenile Court Act. The State failed to give notice of the motion to the respondent minor and failed to transport the respondent to the hearing. In addition, the State failed to notify its witnesses of the correct time of the hearing.

At this point, the State sought a continuance to a time when it was uncontroverted that the court had other matters scheduled. It is reasonable to conclude that the hearing would be continued to a new date and the respondent minor in the interim would be subjected to a transfer hearing. The State erred by failing to file the motion to transfer and schedule a hearing on the motion prior to the commencement of the adjudicatory hearing. There is nothing in the record to suggest that the juvenile or the court was responsible for the State's lack of diligence. The court did not abuse its discretion in controlling its docket and seeing that all interests were administered swiftly and justly in conformity with the mandates of the Juvenile Court Act. In an attempt to be fair to all parties, the court inquired if the State considered dismissing the charge. The State refused to respond to the court's inquiry.

The State cites and the majority adopts the State's position that this was a sham trial based upon People v. Deems (1980), 81 Ill. 2d 384, 43 Ill. Dec. 8, 410 N.E.2d 8. Deems is factually inapposite. In Deems, as in this case, the court denied a continuance. But this is where the factual similarity ends. In Deems, the State requested a dismissal which was refused by the court. Contrary to the instant case, the State was forced to trial after its motion to dismiss without prejudice was refused. It would appear that the trial court below was aware of the factual dissimilarity when it inquired whether the State desired to dismiss the case.

The State cites and the majority adopts In re C.T. (1983), 120 Ill. App. 3d 922, 925-27, 76 Ill. Dec. 435, 458 N.E.2d 1089, to support its determination of an abuse of discretion. As with Deems, the only factual similarity in C.T. is the dismissal. In C.T., the trial court dismissed the case with prejudice, on the basis that a sixth amendment violation occurred. As in Deems, the State was denied the opportunity either to dismiss without prejudice or to effectively present the merits of the case.

The only case cited by the majority which is factually similar to the instant case is People v. Jones (1989), 188 Ill. App. 3d 183, 135 Ill. Dec. 575, 543 N.E.2d 1322. In Jones, the appellate court found no abuse of discretion when the trial court granted a continuance. In that case, there was no motion to transfer which would remove the juvenile to the criminal court nor any lack of diligence. Thus, the majority erroneously relies on Jones, wherein the court granted a continuance so that the juvenile court could exercise its jurisdiction, as opposed to this situation where the majority has determined the trial court was required to grant a continuance to relieve itself of jurisdiction.

The majority relates that this is a serious offense and that no prejudice would arise to the respondent minor. The majority does not believe prosecution as an adult is prejudicial to the respondent minor or contrary to the declared policy of the Juvenile Court Act. I disagree. The stated purpose of the Juvenile Court Act is "to provide for the protection, guidance, care, custody, guardianship of the persons of boys and girls who are delinquent * * * to prescribe court procedure relating thereto; to provide probation social service and psychiatric personnel therefor." See 705 ILCS 405/1-1 (West 1992).

The majority suggests that a two-hour delay would not cause undue prejudice. Such a determination is mere speculation. It presumes that the other matters previously set would not proceed, that the trial court would and should subordinate and reschedule those other matters, that all the State witnesses would in fact appear, and that the State would not seek a continuance of the adjudicatory hearing so that the motion to transfer could be heard in compliance with the transfer provisions.

The majority declares that it is an abuse of discretion to refuse to rearrange the court's schedule to suit the State's negligent inattention and lack of diligence in the preparation, filing, noticing, and prosecution of its cases. (Cf., Jones, 188 Ill. App. 3d at 190.) The majority has wrested the ability to schedule matters from the court and has given it to the State.

It is ironic that the State claims that it was "forced " to trial when it did not seek a dismissal without prejudice and would not respond to the court's suggestion to dismiss. The fact that the cause proceeded to a trial on the merits was not the fault of the trial court. Once the court properly denied the continuance, there were four possible alternatives: (1) dismiss for want of prosecution without prejudice; (2) dismiss for sixth amendment violations with prejudice; (3) proceed to trial; or (4) grant the State a continuance. I submit the first or third alternatives were the only viable choices. Erroneously, the trial court chose the first and third alternatives. It proceeded to trial and acquitted the respondent minor. Since neither witnesses were sworn nor stipulated evidence presented, jeopardy did not attach. The court's actions effectively amounted to a dismissal for want of prosecution without prejudice.

The ultimate irony of this case is that the State could and should have moved to withdraw the petition, refiled the petition, simultaneously filed the motion to transfer, and sought a transfer hearing. The State already indicated it was no longer seeking detention and the only imposition would have been the filing and service of the additional papers. Instead, the State has placed its case in jeopardy, has cited inapposite case law on appeal, has expended a substantial amount of appellate resources, and has unnecessarily delayed the ultimate Disposition of the case. The State could have disposed of this case quickly and efficiently in November 1991. It is now March 1994. The respondent minor is now 18 1/2 years old and beyond the efficacious supervision of the juvenile court.

This case is effectively moot aside from one point: the issue of double jeopardy. The State may still seek to have the respondent tried as an adult. However, the jurisdiction of the juvenile court beyond the motion to transfer is questionable.

There is more than one way to skin a cat. In this case, the skinner did not wait until the cat was dead. It can be done; but at what price to both the cat and to the skinner?

19940415

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