Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 12 CR 9097. Honorable Ellen Mandeltort, Judge Presiding.
Reversed and remanded.
An indictment charging the 23-year-old defendant with criminal sexual assault for offenses committed when he was 14 and 15 years of age was improperly dismissed, since section 5-120 of the Juvenile Court Act does not prohibit the criminal prosecution of an adult defendant for crimes committed when defendant was under 17 years of age.
For Appellant: Anita Alvarez, State's Attorney of Cook County, of Chicago (Assistant State's Attorneys Alan J. Spellberg, Annette Collins and Michelle Katz, of Counsel).
For Appellee: Casement Group.P.C., of Elgin (James P. Casement, of Counsel).
JUSTICE LIU delivered the judgment of the court, with opinion. Presiding Justice Harris and Justice Simon concurred in the judgment and opinion.
[¶1] The issue before this court on appeal is whether an adult defendant may be prosecuted in criminal court for crimes that he allegedly committed when he was under 17 years of age. Defendant David Fiveash was 23 years old at the time he was charged by indictment with criminal sexual assault of his 6-year-old cousin. The offenses allegedly occurred during the period of time when defendant was 14 and 15 years of age. He filed a motion to dismiss the charges for lack of jurisdiction pursuant to section 114-1(a)(6) of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-1(a)(6) (West 2012)), claiming that under section 5-120 of the Juvenile Court Act of 1987 (Act) (705 ILCS 405/5-120 (West 2002)), the juvenile court had exclusive jurisdiction over him for the alleged acts in the indictment, and, therefore, he could not be subjected to criminal proceedings. The trial court agreed that defendant could not be prosecuted under the indictment as it was drafted and dismissed the charges. The State contends that the court erred in dismissing the indictment. For the following reasons, we reverse and remand.
[¶2] I. BACKGROUND
[¶3] The essential facts of this case are straightforward and undisputed. Defendant was born on October 10, 1988. His cousin P.A. was born on December 10, 1996. On May 16, 2012, when he was 23 years old, defendant was charged by indictment with two counts of aggravated criminal sexual assault and two counts of criminal sexual assault for acts of sexual penetration that he allegedly committed upon P.A. between January 1, 2003, and January 1, 2004. There is nothing in the record to indicate that the State delayed charging defendant until he had reached an adult age.
[¶4] On July 17, 2012, defendant moved to dismiss the charges against him for lack of jurisdiction. Citing section 5-120 of the Act, he claimed that the juvenile court had exclusive jurisdiction over him for any alleged acts that occurred prior to October 10, 2003, his fifteenth birthday.
[¶5] A hearing was held on October 4, 2012. Thereafter, the trial court entered a written order rejecting the assertion that it lacked jurisdiction, noting that " [t]he issue of whether a person is tried in juvenile court or criminal court is a matter of procedure rather than jurisdiction." The court nonetheless concluded, after reviewing section 5-120 of the Act, that defendant could not be tried under the indictment. The court noted that in People v. Rich, 2011 IL App (2d) 101237, 960 N.E.2d 715, 355 Ill.Dec. 833, the reviewing court held that an indictment was properly dismissed as legally defective where " the defendant was not charged with a crime that was subject to the automatic transfer provision of the *** Act because the defendant was under the age of 15." The court found that, in the instant case, the indictment " as drafted covers a single time period that includes when this defendant was
both 14 and 15 years old." Because the indictment included a period of time when defendant was 14 years old, the court found that the alleged offenses did not fall under the automatic transfer provision of the Act (705 ILCS 405/5-130(1)(a) (West 2012)) and granted defendant's motion to dismiss the indictment. The State now appeals pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1, 2006).
[¶6] II. ANALYSIS
[¶7] In this appeal, the State contends that the trial court erred in dismissing the indictment where defendant was not a minor at the time he was charged. Specifically, the State argues that section 5-120 of the Act does not prohibit the criminal prosecution of an " adult" defendant, i.e., one who is over 21 years ...