APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN ROGERS, JUDGE PRESIDING.
As Corrected October 18, 1996. Released for Publication November 18, 1996.
Presiding Justice Hoffman delivered the opinion of the court: Cahill, J., specially concurs. Theis, J., dissents.
The opinion of the court was delivered by: Hoffman
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The State filed a petition for adjudication of wardship against theminor respondent, W.J. A detention hearing was held pursuant to section 5-10 of the Juvenile Court Act (("Act") 705 ILCS 405/5-10 (West 1994)), after which the trial court found probable cause to believe that the respondent was a delinquent minor. The State then moved to transfer the respondent's case for prosecution under the criminal laws pursuant to section 5-4(3.3) of the Act (705 ILCS 405/5-4(3.3) (West 1994)), but the court denied the transfer motion on the basis that the State failed to make the required showing of probable cause. The State now appeals from this ruling, raising the following issues: (1) whether the court erred in interpreting section 5-4(3.3) (a) to require a new hearing and determination of probable cause even though the State had already established probable cause for purposes of the respondent's detention proceeding; (2) whether the court erred in concluding, based upon principles of fundamental fairness, that it could not consider the transcript of the detention hearing as proof of probable cause at the transfer proceeding.
An amended petition (petition) was filed on April 3, 1995, charging the sixteen-year-old respondent with aggravated battery and aggravated discharge of a firearm resulting from a double shooting. In conjunction with the petition, the State filed a section 5-4(3.3) motion seeking to transfer the respondent for prosecution as an adult under the criminal laws.
Also on April 3, 1995, the matter proceeded to a section 5-10 detention hearing. 705 ILCS 405/5-10 (West 1994). Section 5-10 hearings must be held within 36 hours after the minor is taken into custody (705 ILCS 405/5-9 (West 1994)), and encompass the following:
"At the appearance of the 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 that 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 *** that the minor be detained ***, the court may prescribe detention or shelter care ***." (Emphasis added.) 705 ILCS 405/5-10 (West 1994).
At the detention hearing, the State presented evidence tending to prove the allegations in the petition. Following arguments, the court found that the State had established probable cause under section 5-10. The court also found an immediate and urgent necessity to hold the respondent in custody pending his adjudicatory hearing.
On April 18, 1995, a hearing was held on the State's motion to transfer the respondent for prosecution as an adult. Section 5-4(3.3)(a) of the Act provides as follows:
"If the State's Attorney files a motion *** to permit prosecution under the criminal laws and the petition alleges the commission by a minor 15 years of age or older of*** (ii) aggravated discharge of a firearm***, and, if the juvenile judge designated to hear and determine motions to transfer *** determines that there is probable cause to believe that the allegations in the petition and motion are true, there is a rebuttable presumption that the minor is not a fit and proper subject to be dealt with under the [Act], and that, except as provided in paragraph (b), the case should be transferred to the criminal court." (Emphasis added.) 705 ILCS 405/5-4(3.3)(a) (West 1994).
Section 3.3(b) states that the judge shall then enter an order permitting prosecution under the criminal laws, unless he finds that the minor would be amenable to care, treatment, and training programs available through the juvenile court. This decision is based upon an evaluation of seven enumerated factors, including the criminal history and sophistication of the ...