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March 16, 1995


Appeal from the Circuit Court of Fulton County, Illinois. No. 3-93-0199. Honorable John R. Clerkin, Judge, Presiding.

Present - Honorable Michael P. Mccuskey, Justice. Honorable William E. Holdridge, Justice. Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the court: Holdridge and McCUSKEY, J.j., concur.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

The respondent, Bruce Oetgen, appeals from a decision of the circuit court revoking his conditional release and recommitting him to the Department of Corrections (DOC) as a sexually dangerous person. We reverse and remand.

The respondent was originally adjudicated a sexually dangerous person pursuant to the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/0.01 et seq. (West 1992)) in 1981. The respondent was conditionally released in August, 1985. That conditional release was revoked in 1987 when respondent admitted a violation, and he was recommitted to the DOC. In March, 1990, respondent was again conditionally released. Release was conditional upon, inter alia, respondent's living in a half-way house; receiving out-patient therapy; working; being tested for drugs; and obeying all laws, rules and regulations.

On September 25, 1992, the State filed a petition to revoke conditional release. The petition alleged that the respondent had violated the conditions of his release by committing an act of public indecency in Cook County on September 23, 1992. The petition was later amended in February 1993 to allege that respondent had pled guilty to the indecency charge in Cook County proceedings on December 1, 1992.

The respondent then filed an answer and a motion to dismiss the State's amended petition. The respondent alleged that he was entitled to release since he had been in custody from September 23, 1992, forward. He also noted that he had pled guilty to the charge of public indecency and contended that this act barred the State from using the incident as the basis for revocation of his conditional release.

At a hearing on the motion to dismiss, the respondent testified concerning his arrest, his guilty plea, his receiving a sentence for "time served" and his being held on a Fulton County "hold" placed upon him. The court denied the motion to dismiss. The court ruled that the speedy-trial question was resolved by reference to the probation provisions of section 5-6-4 of the Unified Code of Corrections (730 ILCS 5/5-6-4 (West 1992)) and that, as a result, the 120-day period began to run on the date of the disposition of the Cook County charges. The court also found that People v. Patch (1973), 9 Ill. App. 3d 134, 293 N.E.2d 661, the case cited by respondent for his "bar to revocation" argument, was no longer good law.

On March 5, 1993, the State moved for summary judgment in the cause. The State argued that the respondent had admitted his guilty plea and that, as a result, he admitted the basis for the recommitment. The respondent opposed the State's motion and argued for a full hearing. Finding no procedural bar to the grant of summary judgment and ruling that there was no material issue in the case, the court granted the State's motion. The court then revoked respondent's conditional release and recommitted him to the DOC.

The respondent first argues on appeal that the court should have dismissed the petition to revoke conditional release because the State could not move to revoke release on the basis of conduct which it had already formally prosecuted in a criminal case. The respondent's argument is based on the Second District Appellate Court's decision in Patch. In that case, the court, relying on People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736, held that a person cannot be committed as sexually dangerous, or recommitted after a conditional release, on the basis of conduct for which he has already been prosecuted and convicted in a criminal proceeding. The only reason given by the Patch court for its decision was Redlich.

The second district later admitted it erred in Patch by relying on Redlich. In People v. Cooper (1988), 177 Ill. App. 3d 942, 950, 532 N.E.2d 1022, 1026-27, 127 Ill. Dec. 193, the court stated the following:

"Defendant relies on People v. Patch (1972), 9 Ill. App. 3d 134, 138, 293 N.E.2d 661, where this court, citing People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736, held that a defendant could not be recommitted under the Act after the prosecutor had obtained a conviction for the criminal offense. The State correctly argues that this court erroneously applied Redlich in Patch. As pointed out by the State, Redlich concerned a statute much different from the Act. The statute in Redlich provided for the commitment of criminal sexual psychopaths until they recovered so that they could stand trial. (Redlich, 402 Ill. at 276.) Thus, Redlich stated that when a defendant had already been convicted for the same crime, there was no need for a determination of defendant's mental condition. The purpose of the statute was defeated. Redlich, 402 Ill. at 276."

On appeal, our supreme court agreed with the second district that the rationale of Redlich did not apply to the current statute, which has as its purposes treatment of the person and protection of the public. (See People v. Cooper (1989) 132 Ill. 2d 347, 547 N.E.2d 449, 138 Ill. Dec. 282.) Neither the second district nor the supreme court explicitly overruled Patch, nevertheless, because the issue in Cooper was whether the State could revoke a ...

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