Appeals from the Circuit Court of Cook County. Honorable John W. Rogers, Judge Presiding.
Released for Publication August 13, 1996.
The Honorable Justice Greiman delivered the opinion of the court: Tully, P.j., and Cerda, J., concur.
The opinion of the court was delivered by: Greiman
The Honorable Justice GREIMAN delivered the opinion of the court:
We have consolidated these three cases *fn1 because they share a common issue: whether the finding of probable cause at a minor's detention hearing, required to be held within 36 hours of "arrest," is deemed a finding of probable cause at a subsequent hearing to determine whether the minor ought to be transferred to the adult criminal justice system, and, if not, what recognition is to be afforded the transcript of the prior proceedings at the transfer hearing.
In each case, the minor was taken into custody and within 36 hours a detention hearing was commenced pursuant to section 5-10 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-10 (West 1992)). That section requires the juvenile court to find there is probable cause to believe that the minor is a delinquent minor and that "it is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another that the minor be detained." 705 ILCS 405/5-10(2) (West 1992).
The State believes that a finding of probable cause in the detention hearing binds the transfer hearing court on issues of probable cause for transfer out of the juvenile system under a theory of collateral estoppel. The minor in each case argues that the issues raised in the detention hearing are different than those of the later proceedings and that the summary nature of the detention hearing imposed by the 36-hour time limit denies the minor fundamental fairness in the administration of juvenile justice, thus requiring two independent hearings.
Another approach would be that the prior determination does not bind the transfer court, but the transcript might come into evidence and the court could then make a determination that the requirement of "probable cause" for the transfer hearing was satisfied by the evidence adduced at the earlier hearing and the rebuttable presumption that the minor ought not be dealt with under the Act then arises. While this is a seductive middle road, prosecutors might find themselves more at risk in chancing that the transcript will suffice.
Overlaid upon the various sections of the Act are the stated goals of the Act, as set out in the preamble:
"In all proceedings under this Act the court may direct the course thereof so as promptly to ascertain the jurisdictional facts and fully to gather information bearing upon the current condition and future welfare of persons subject to this Act. This Act shall be administered in a spirit of humane concern, not only for the rights of the parties, but also for the fears and the limits of understanding of all who appear before the court." 705 ILCS 405/1-2(2) (West 1992).
The first hearing is mandated by section 5-10 of the Act and is defined as a "Detention or shelter care hearing," which provides:
"At the appearance of a minor before the court at the detention or shelter care hearing, all witnesses present shall be examined before the court in relation to any matter connected with the allegations made in the petition. No hearing may be held unless the minor is represented by counsel.
(1) If the court finds that there is not probable cause to believe that the minor is a delinquent minor it shall release the minor and dismiss the petition.
(2) If the court finds there is probable cause to believe that the minor is a delinquent minor, the minor, his or her parent, guardian, custodian and other persons able to give relevant testimony shall be examined before the court. ***
If the court finds that it is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another that the minor be detained or placed in a shelter care facility or that he or she is likely to flee the jurisdiction of the court, the court may prescribe detention or shelter care ***." 705 ILCS 405/5-10(1), (2) (West 1992).
"Delinquent minor" means any minor who, prior to his seventeenth birthday, has violated or attempted to violate, regardless of where the act occurred, any federal or state law or municipal ordinance. 705 ILCS 405/5-3(1) (West 1992).
The subsequent hearing, regulated by section 5-4(3.3), is commenced upon the filing of a motion and petition by the State to determine whether the minor is not an appropriate subject to be dealt with under the Act and should be transferred to the criminal court and provides:
"If the State's Attorney files a motion under subsection (3)(a) to permit prosecution under the criminal laws and the petition alleges the commission by a minor 15 years of age or older of: (i) a Class X felony other than armed violence; (ii) aggravated discharge of a firearm; (iii) armed violence with a firearm when the predicate offense is a Class 1 or Class 2 felony and the State's Attorney's motion to transfer the case alleges that the offense committed is in furtherance of the criminal activities of an organized gang and the case is not required to be prosecuted under the criminal laws of Illinois as provided by subsection (3.1) or (3.2); (iv) armed violence with a firearm when the predicate offense is a violation of Section 401, subsection (a) of Section 402 *** of the Illinois Controlled Substances Act; or (v) armed violence when the weapon involved was a machine gun or other weapon described in subsection (a)(7) of Section 24-1 of the Criminal Code of 1961, and, if the juvenile judge designated to hear and determine motions to transfer a case for prosecution in the criminal court determines that there is probable cause to believe that the allegations in the petition ...