*1 (No. 68709 . KIRWAN, Defender, of the
DANIEL M. Office Deputy District, Pe Defender, Fifth Judicial Appellate WELCH, titioner, Ap M. Justice THOMAS al., et Court, Respondents. pellate Rehearing
Opinion December filed 29,1990. January denied RYAN, J., concurring. se, pro
Daniel Kirwan, Defender, M. Deputy M. Menard, Defender, Assistant Mary of the Office of the State Defender, Vernon, of Mount for peti- tioner.
Neil F. Hartigan, General, of Attorney Springfield Ruiz, (Robert General, J. Solicitor and Terence M. Smith, Madsen and K. Douglas Assistant Gen- Attorneys eral, of counsel), respondents.
JUSTICE CLARK delivered the of the court: opinion Defendant, Koch, Curtis M. was convicted battery, A in misdemeanor, a Class a bench trial the following circuit court of Richland and was sentenced to County 12 in months court fined court costs supervision, $60 to 12 months of The required complete counseling. defendant filed a notice of and the circuit timely appeal court the office of the State De appointed Appellate fender, District, Fifth to the defendant Judicial represent The State Defender appeal. Appellate (petitioner) to as filed a motion before the court withdraw appellate counsel on the the State De grounds Appellate 208—1 et 1987, 38, ch. (Ill. par. fender Act seq.) does not authorize the office of Appellate appeal. to the defendant his Defender represent motion to court denied the with petitioner’s appellate filed action present draw. Petitioner subsequently of mandamus Ill. (107 this court to issue a writ asking Ill. R. di (107 383) 2d R. or a 2d 381) supervisory of the Appellate the justices recting respondents, motion Court, District, grant petitioner’s Fifth as counsel. withdraw of the circuit authority focuses on the
The issue here repre- Defender the State Appellate to appoint of su- disposition in an from the defendant appeal sent pervision. to the State Defender begin by looking Appellate
.We Act Rev. Stat. ch. 208—1 et (the Act) (Ill. par. the circumstances
seq.) which described under Defender State Appellate We indigents recognize pointed the Act we must ascertain and construing give the statute effect to the intent legislature’s enacting and, v. ac (Maloney (1986), 479) Bower Ill. itself as we look to the statute
cordingly, language the best indication of the intent of the drafters. See Peo Ill. ple Robinson
Section of the Act 10(a) provides:
“(a) The State Defender shall indi gent persons on in criminal cases other than mis involving imprisonment, demeanor cases not a sentence of Court, by when to do so Ap Court, pellate or the or any Circuit Court branch added.) thereof.” (Emphasis Rev. Stat.
par. 208—10. *3 The Appellate Defender that argues of language the statute is clear that, and and unambiguous under the Act, he may only be appointed represent indigents misdemeanor cases in which a sentence of imprisonment has actually been He contends that an order of imposed. is a final
supervision (see 1987, Rev. Stat. judgment 38, ch. par. 6—3.1(g) (stating disposition “[a] 1005— of ais final order for the of supervision purposes which dobs not peal”)) and, involve conse imprisonment quently, Appellate Defender may appointed the defendant his from an order of supervision. contend that respondents such a construction is
unrealistic and does violence to the and of spirit purpose Act, efficient, which is to provide cost-effective rep- resentation to indigent maintain that a appellants. They of disposition supervision is an order which interlocutory case, not a final judgment defers proceedings v. Tarkowski (See People of the case. which disposes that a (stating disposition 100 Ill. 3d 153 App. final Since the defendant is not a supervision judgment).) in the event remains for a term eligible the re he does not successfully complete supervision, and claim that the case involves imprisonment spondents Defender was properly in his the defendant the nature of issue, this we must examine To resolve or on finding guilty, or a Upon plea supervision. supervision. facts, a trial court enter may stipulated 38, 1987, ch. 1005—6— par. Rev. Stat. (Il l. of condi as “a disposition is defined 1(c).) Supervision *** release the successful tional revocable and is dis the defendant conclusion of which disposition is entered.” charges judgment dismissing and a charged (I 1005-1-21.) 1987, ch. par. Rev. Stat. ll. judgment a defendant is placed supervision, When are deferred un all and further charges proceedings Rev. (Ill. of supervision. conclusion of the period til the If the 1005-6-3.1(a), (d).) Stat. ch. pars. his supervision, successfully completes defendant dismissing a judgment discharged defendant 38, par. ch. (Ill. entered. charges suc and dismissal discharge upon A 6—3.1(e).) an adjudica is without supervision conclusion of cessful in a for pur not result conviction and does guilt tion law. imposed by disabilities disqualification poses How 1005-6-3.1(f).) par. Rev. Stat. (Ill. his supervi the conditions of violates ever, if a defendant other sen and any be revoked sion, the supervision *4 sentencing may of the initial at the time tence available 1005—6— 1987, ch. par. Ill. Rev. Stat. imposed. Su- Teton, Without Conviction: Crime 4(e); generally see Sentence, 19 J. Marshall L. Rev. 547 pervision Without (1986).
Based on these we a disposi conclude that provisions, of tion is not a final As supervision judgment. noted above, dispose does not of supervision proceedings on the offense underlying proceed but defers the merely until the conclusion of of ings period An supervision. of possess order does not supervision any charac teristics of it finality: litigation does terminate the between the on the merits of or parties the cause settle ex rights (See of rel. parties. People Mosley v. Carey Ill. 2d (1979), 537.) On the when contrary, a is on the supervision imposed, judgment of underlying is fense deferred until the of period supervision is com pleted. that, petitioner of argues spite its interlocu nature, of
tory disposition supervision constitutes a fi nal virtue of judgment by section of Uni 6—3.1(g) 5— Corrections, fied Code of “[a] of disposition supervision is a final order for the pur of poses appeal.” (Ill. Rev. Stat. par. 6—3.1(g).) This argument equates made 1005— “final for awith “final
purposes appeal” adjudica tion”; however, the two are the same. (People v. 53 Ill. A Chupich (1973), final 584.) judgment litigation terminates the merits and leaves noth to be done but to ing proceed execution. (People Kuhn 207.) An order of supervi sion which made has been “final for purposes appeal,” hand, on the other as noted simply appealable; previ it does not ously, terminate litigation between parties on the merits of the cause settle the rights the parties. conclude, therefore,
We that section does 6—3.1(g) not make an order final supervision adjudication Rather, merits. it a rule procedure supplement-
168 ing 604(b) (107 604(b)), our Rule Ill. 2d R. which provides v. Gibellina for (see from orders of appeals supervision v. O’Connell St. Francis Handley 122; Ill. (1989), 127 2d Hospital 112 Ill. 273 which (1986), (cases recognize 2d the concurrent legislature’s jurisdiction promulgate rules long they so as do not procedure infringe upon a the inherent of the Until final powers judiciary)). judg entered, is the in ment on the offense case underlying and, find the volves we imprisonment, consequently, in appointing circuit court was within its authority in his petitioner defendant can Our conclusion that the State Defender Appellate indigent defendants from orders appeals is supervision legislative history supported by Defender Act. the office of State When Appellate 1972, the Ap Defender was created Defender to “represent indigent was authorized pellate in criminal cases when persons (See or limitation. Ill. Rev. so,” exception do without time, Arger 1973, 38, At that 10(a).) Stat. par. 208 — singer 530, Hamlin L. Ed. 2d 25, 407 U.S. 32 (1972), 2006, counsel for any 92 S. the assistance of required Ct. as the his might liberty accused who deprived result of criminal whether any prosecution, felony 2d 37, 407 at 32 L. Ed. misdemeanor. U.S. (Argersinger, 1979, at 92 S. In Court 538, 2012.) Ct. at v. Illinois Scott 59 L. Ed. decided U.S. it held that the sixth 99 S. Ct. which not a State trial and fourteenth amendments do require counsel for a criminal defendant who to appoint statutory with offense charged (Scott, authorized, imposed. but not
upon conviction at 99 S. Ct. 373-74, 59 L. Ed. 440 U.S. at the State Ap amended Thereafter, legislature our 1162.) than “other Defender Act words by inserting pellate a sentence involving imprison- misdemeanor cases ment” ch. 38, par. into statute. 10(a).
We do believe statute by amending this from the Act exempt intended way class of who specific indigent eligible defendants are for a sentence of imprisonment. floor debate on Sen Assem., ate Bill 889 Ill. Gen. Bill (77th Senate office Sess.), Appel which established the of the State Defender, late reveals that the of the State purpose Ap Defender Act was to pellate appel provide experienced *6 late for The creation representation indigent appellants.
of a State to on agency represent indigents was appeal part based in on the belief that such a handling would, in peals long run, the be financially more advan than the tageous the de having appeal by public handled fender who the the represented accused at trial level. Another consideration in the office was the establishing difficulty finding private willing to attorneys accept appointments on individual criminal 77th Ill. appeals. Assem., Gen. Senate 11- Proceedings, May The floor on (81st debate Senate Bill 88 Ill. Gen. Senate Assem., Bill 1979 Sess.), which contained the the amendatory language petitioner relies, does not indicate that the proposed amendment was intended Act; to affect purpose rather, re debate veals that of this amendment was purpose to save at the level not to money appellate by providing counsel indigent defendants cases where a was sentence jail not imposed anticipated. (See Assem., 81st Gen.
Senate 24, 1979, at Proceedings, May 206-07.) This point is illustrated by McClain’s comments: Representative
“What this Bill now for appel- the state [sic] late defender’s represent indigent office not clients for misdemeanor involving cases a sentence imprisonment. I think that it is important you for is a up possibility know that there sentence if front state imprisonment, appellate then the defender’soffice However, represent indigent
must that if ... to, agreed if already if there is no that is imprisonment, going imprisonment, the state’s is not ask for attorney indigent private then the must himself with coun provide Assem., (81st (Emphasis added.) sel ***.” Ill. Gen. House Proceedings, (statements Repre at 87 June McClain).) sentative we believe
Thus, to the contrary petitioner’s argument, that of the State that the did intend the office Defender all misdemeanant appel- lants cases where a sentence of except that the petitioner and find was possible properly case. present Accordingly, as counsel for a of mandamus is denied. writ petition asks this court exercise Alternatively, petitioner its supervisory powers require petitioner In as the counsel. light allowed withdraw defendant’s properly conclusion that was petitioner ap- of our the defendant on appeal, peti- pointed motion for a order is denied. supervisory tioner’s denied;
Writ motion for order denied. supervisory *7 RYAN, concurring: JUSTICE of the in this case and holding
I concur with the court be, the out, to I to uncon perceive write what only point 6—3.1(g) of stitutional contained section provision 5— (Ill. Code of Corrections Unified to mis prevent possible 6—3.1(g)), par. 1005— of opinion. construction the court's of this section of provision
The that opinion notes a final an order of supervision statute does not make The of this section provision on merits. adjudication order notes, makes an of statute, only of the the opinion supervision final “for the is, of purposes appeal”; this section to other attempts make than final judgments 6 of appealable. Section article of the Illinois Consti VI tution of 1970 that “the Court rule for to the provide by Court from appeals other than final of Circuit Courts.” Ill. judgments Const. VI, art. §6.
The opinion this case seems to treat the provision of section of the of 6—3.1(g) Unified Code Correc tions as a statutory provision supplementing our Rule (107 Ill. 604(b) 2d R. 604(b)) an area where the legisla ture has concurrent jurisdiction with this court to of promulgate rules procedures so as in long they do not fringe upon inherent power the judiciary. That is not the case. This attempt by legislature make an order that is not final judgment appealable.
That is vested authority solely supreme by constitution, our and any attempt by legislature enact legislation in that area is an infringement this court’s constitutional authority and is unconstitutional. in this opinion cáse should not be viewed as an ap this
proval by court of such an infringement as an ac knowledgment has any concurrent jurisdiction this area. The provision section 5—6— has no 3.1(g) effect on the appealability this interlocu order in tory this case because of the provision our Rule 604(b), which makes an supervision appeal- However, able. I do not want this opinion be viewed as an invitation to the legislature to attempt to make other orders interlocutory in areas appealable where this court has not so provided.
In People ex rel. Stamos Jones (1968), 7 of relying section the 1964 amendment article VI Illinois Constitution of which contained the same provisions as that from quoted above section 6 of article VI of the constitution, present this court held un-
172 constitutional of a statute which provisions provided if an a fel is taken from a conviction of forcible appeal, the defendant to bail and the shall be entitled ony, sentence of shall not be stayed pending This has re court stated the constitution placed in the governing supreme for rules sponsibility appeals court, Ill. Assembly. and not in General
In this court People Taylor (1972), v. made or considered statute which certain interlocutory court, whereas, a rule of this ders under nonappealable, on section 7 Again, such orders were appealable. relying the 1964 amendment to the Illinois Con of article VI of the statute stitution of this court held unconstitu tional, stating: matter of instant concern subject 7 covers
“Section rule Supreme provide by Court provides: may and ‘The from other than final for to the Court appeals this section the con By the Circuit Court.’ judgments of authority sole stitution vests in the Court to the court from provide by appeals appellate rule for authority to this judgments. other than final Pursuant for adopted this court has Rule 604 which results effect of peals from orders substantive dismissing charge grounds enumerated Procedure; arrest of Criminal 114—1 of the Code section indictment, informa of a defective ing because judgment warrant; or search quashing arrest complaint; tion or Accordingly portion of sec suppressing evidence. Procedure which 3(e) of the Code of Criminal tion 109— from the interloc may declares that (People Tay to therein is void.” referred utory orders 136, 140.) Ill. 2d lor legislature in which the is not one
This area then but concurrent jurisdiction, exercise supreme at- act. Any court alone in which the supreme one with legislate regard tempt by orders is void. other than final appealability