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01/10/97 A.P. v. A.P.

January 10, 1997

IN RE A.P., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
A.P., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Lake County. Nos. 94--CF--1080, 94--J--884. Honorable Margaret J. Mullen and Christopher C. Starck, Judges, Presiding.

Released for Publication February 11, 1997.

The Honorable Justice Doyle delivered the opinion of the court. McLAREN and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Respondent, A.P., a minor, appeals from an order adjudicating him guilty of aggravated battery with a firearm (720 ILCS 5/12--4.2(a) (West 1992)). Respondent has been in detention since his arrest on June 6, 1994, when he was 15 years old.

Respondent was tried as an adult on two counts of first degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1992)) and one count of aggravated battery with a firearm. The State dismissed two other charges against respondent after resting its case. On September 23, 1994, a jury returned verdicts acquitting defendant of the murder charges, but finding him guilty of the aggravated battery with a firearm charge. On the same day, the trial court entered judgment on the verdicts.

On October 17, 1994, respondent motioned for a new trial and to transfer his case to juvenile court for further proceedings, including a dispositional hearing. At that time, the State had not filed a motion to sentence respondent as an adult. On November 4, 1994, after a hearing on these matters, the trial court denied respondent's motion for a new trial, but granted respondent's motion to transfer his case to juvenile court. On November 18, 1994, the State filed an interlocutory appeal from the order transferring respondent's case to juvenile court.

On December 2, 1994, the State motioned in juvenile court to stay a ruling and disposition on respondent's case pending the outcome of the State's appeal. Respondent's attorney agreed that the proceedings should be stayed. The juvenile court granted a stay of the proceedings.

On the same date, respondent filed a notice of appeal from the denial of his post-trial motion. The State subsequently motioned to dismiss the appeal (No. 2--94--1403). On January 26, 1995, this court dismissed respondent's appeal No. 2--94--1403.

On January 20, 1995, while the State's appeal remained pending, respondent filed a notice of appeal. Respondent appealed pursuant to Supreme Court Rule 662 (134 Ill. 2d R. 662) from his adjudication of guilt. On February 1, 1995, the State Appellate Defender filed an amended notice of appeal on respondent's behalf. The amended notice of appeal also appealed, pursuant to Supreme Court Rule 662, from the adjudication. These notices of appeal gave rise to the appeal now before us.

On July 19, 1995, this court issued a summary order on the State's appeal. In the summary order, we affirmed the trial court order transferring respondent's case to the juvenile court for disposition.

In the present appeal, the State first contends that this court does not have jurisdiction to hear the appeal. The parties disagree as to whether the State has waived the jurisdiction issue. We will consider the issue because a reviewing court has a duty to consider its jurisdiction to hear an appeal even if the parties have not raised the issue. People v. Sawyer, 258 Ill. App. 3d 174, 177, 197 Ill. Dec. 170, 630 N.E.2d 1294 (1994). Respondent raises no issue in this appeal as to the propriety of the stay and does not seek to resume the proceedings in juvenile court.

Instead, respondent filed his notices of appeal pursuant to Supreme Court Rule 662. Rule 662 provides, in relevant part, as follows:

"An appeal may be taken to the Appellate Court from an adjudication of wardship in the event that an order of disposition has not been entered within ...


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