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11/02/95 PEOPLE STATE ILLINOIS v. CEASAR RODRIGUEZ

November 2, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CEASAR RODRIGUEZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Boone County. No. 93-CF-152. Honorable David A. Englund, Judge, Presiding.

Released for Publication December 5, 1995. Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Doyle delivered the opinion of the court: Hutchinson, J., concurs. Presiding Justice McLAREN, dissenting:

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Defendant, Ceasar Rodriguez, argues in this appeal that he was improperly transferred to adult court in the circuit court of Boone County.

Defendant was found guilty in a stipulated bench trial of the offense of unlawful delivery of a controlled substance, LSD (720 ILCS 570/401(a)(7)(A)(ii) (West 1992)) and was sentenced to six years' imprisonment. Originally, the offense had been charged as one count of a five-count petition for adjudication of wardship. The juvenile petition had contained two counts of unlawful delivery of a controlled substance and three counts of unlawful delivery of cannabis. During the proceedings on the five-count petition, the State filed a petition, pursuant to section 5-4(3)(a) of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-4(3)(a) (West 1992)), requesting the trial court to allow defendant to be prosecuted as an adult. Prior to a hearing on the petition for discretionary transfer to adult criminal prosecution, the State filed an amended petition, adding an allegation that, under section 5-4(7)(a) of the Act (705 ILCS 405/5-4(7)(a) (West 1992)), defendant must be prosecuted as an adult because he was at least 15 years old, had violated section 401(a)(7)(A)(ii) of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(7)(A)(ii) (West 1992)), and had committed the violation while on public property within 1,000 feet of the real property comprising a school. Following a hearing, the trial court determined that the two counts of unlawful delivery of a controlled substance must be tried in adult court. Defendant was then charged as an adult by information with these two counts.

By agreement of the parties, one of these counts, count II, was sent back to juvenile court. Defendant proceeded to a stipulated bench trial in adult court on the other count, was convicted thereof, was sentenced to six years' imprisonment, and was ordered to pay a statutory assessment of $3,000. Count II was reinstated within the juvenile case. The court accepted defendant's admission to this count, adjudicated him to be delinquent, and made him a ward of the court. The court then terminated the wardship because defendant had been sentenced to imprisonment on count I. The three counts of the original petition pertaining to unlawful delivery of cannabis were dismissed.

Defendant filed a motion to vacate judgment of conviction, which was denied. Defendant then filed a timely appeal.

On appeal, defendant contends that: (1) he should not have been prosecuted as an adult because the gas station parking lot where he sold LSD did not constitute a public way as required for adult prosecution under section 5-4(7)(a) of the Juvenile Court Act; (2) the amended petition under which defendant's case was transferred to adult court was untimely filed and should have been dismissed; and (3) defendant should be given credit against his statutory assessment for each day that he was in custody.

Defendant first contends that the present case should not have been "automatically transferred" to the adult criminal court because the gas station parking lot, where the offense occurred, does not constitute a public way. Under section 5-4(7)(a) of the Act, a minor is subject to criminal prosecution if charged with an offense under section 401 of the Illinois Controlled Substances Act while "on a public way within 1,000 feet of the real property comprising any school, regardless of the time of day or the time of year." (705 ILCS 405/5-4(7)(a) (West 1992).) The facts, here, were undisputed that defendant's illegal sale of LSD occurred in a gas station parking lot which was located within 1,000 feet of a school.

Defendant maintains that, because the parking lot was on property owned by the gas station, it could not be considered a public way. To support his position, defendant first argues that the gas station parking lot does not "fit within the plain and ordinary meaning of the term public way." Thus far, the "public way" language of section 5-4(7)(a) of the Act has not been construed by the courts.

As defendant points out, no definition of public way appears in Black's Law Dictionary. Rather, behind the entry, the reader is directed to: "See Highway (Public highway). " (Black's Law Dictionary 1233 (6th ed. 1990).) In Webster's Third New International Dictionary "public way" is defined as:

"any passageway (as an alley, road, highway, boulevard, turnpike) or part thereof (as a bridge) open as of right to the public and designed for travel by vehicle, on foot, or in a manner limited by statute (as by excluding pedestrians or commercial vehicles)." Webster's Third New International Dictionary 1836 (1991).

In the court below, defendant argued that the plain and ordinary meaning of public way was, simply, "public thoroughfare." On appeal, defendant has abandoned defining the phrase "public way" and instead defines "public" and "way" separately. Combining the two separate definitions, defendant concludes that the phrase means "a way that is ...


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