*1 (No. 54359. ILLINOIS, OF Appellant, THE STATE PEOPLE OF
THE WOODRUFF, EUGENE v. KEVIN Appellee. 18, 1981. Opinion December filed SIMON, J., specially concurring. General, Fahner, Springfield C. Attorney
Tyrone Decatur Greanias, G. State’s Attorney, (Mel- and Basil General, Noel, Attorney Chicago, bourne Assistant Attorney, Assistant State’s counsel), Justice, Jeff the People. *2 Yuhas, Defender, Charles M. D. and
Daniel Deputy Defender, Schiedel, of the Office Assistant Defender, of Appellate Springfield, appellee. RYAN the opinion delivered of court: the
JUSTICE 25, 1979, petition On a was filed in the circuit June of Macon County defendant, alleging that Eugene Kevin Woodruff, age delinquent is a petition minor. The alleged that the defendant armed committed offenses of robbery, violence, armed and home invasion. On the same day, the Attorney State’s filed a motion have the defend ant tried as an adult. (Ill. par. Rev. Stat. 7(3).) August 10, 1979, On an entered authorizing the State to try the defendant as an adult for violations of the criminal law. on began The criminal trial 19, 1979, November at which time defendant moved that he be discharged for failure of the State to him to bring trial within 120 days from date he was into taken custody. (Ill. Rev. Stat. 5(a).) The and, trial, motion was denied following jury a the defendant invasion, convicted robbery armed and home and sentenced to two concurrent terms years’ imprison of seven ment.
In court, the appellate the defendant raised three issues. However, the appellate court only addressed one of these (the failure to bring the defendant to days), trial within 120 and reversed the defendant’s convictions on that basis. The appellate court case, held that under the facts of this which will be set below, out more detail 120-day period began running when the delinquency petition was filed and summons issued on 1979. The court held that the June
time between entry that event of the order author be izing defendant to be tried as an adult had to counted determining brought had been whether defendant trial within 120 into days from the date he was taken (90 We the State’s custody. App. granted Ill. 3d petition for appeal. leave to filing delinquency petition
Prior to the involved case, in this an had filed delinquency petition earlier been 3, 1978, on Woodruff had August charging that Kevin entered a consent and com- building without the owner’s damage adjudicatory mitted therein. At the property hearing placed on the defendant was petition, September supervision for period year beginning one Thereafter, 1978. filed reports several were probation setting officer forth various violations a result these supervision conditions of the order. As 12,1979, April On violations warrant was issued. detention the minor was following hearing, detention ordered April detained in a at which facility detention *3 father, was he to be the matter was released to his and the hearing. Following continued for the release of father, that reported the officer probation defendant his a minibike stealing on seen May the defendant was the and arrested May on the defendant was was not that he police charge. appear on It does burglary violations, father In held. addition to these the defendant’s control, been reported that out of had the defendant was had come “pot” using drugs, other and not smoking and the Also, father that nights. reported home for two May Finally, on attending defendant had school. not been not apparently a detention was issued but was warrant that attorney reported On served. 25 the defendant’s May unknown. was whereabouts of defendant generally. hearings alleged on violations were continued 3, 1979, On and apprehended defendant June facility. detention County juvenile detained the Macon
13 that directing On 5 the a detention order court entered June facility. be On 14 he detained in detention juvenile June hearing the defendant was adjudicatory was held and a ward delinquent adjudged found be a minor and he was dispositional hearing of court. On was com- June menced and was at which time the concluded on June court entered an defendant committing order Department Corrections, division, ordering juvenile the sheriff to deliver to the Depart- forthwith the defendant ment Corrections, juvenile further or- division. It was dered that County the defendant be in the Macon juvenile facility pending Depart- detention transfer to the ment of Corrections.
The beginning leading to the defend- proceedings ant’s conviction in the violations and overlaps our proceedings above, set out to the earlier pertain which delinquency adjudication of this On defendant. June (after had adjudicated delinquent defendant been in the prior proceeding, but dispositional before the order in that case), the filed in this case delinquency petition was charging that the defendant had the offense of committed armed robbery and home invasion he was later for which prosecuted A criminally. motion to the defendant prosecute anas adult was filed at time. Summons was issued and served upon (after the defendant he had June Corrections, been committed the Department division, by case, dispositional prior order entered but while he was still being County juvenile held Macon facility pursuant to the court his transfer to pending the Department Corrections).
The adjudicatory hearing delinquency for this second however, petition 12, 1979; was set July the defendant Corrections, had been transferred to the Department *4 juvenile division, 23, 1979, petition 2. On a for a July July on writ of by habeas ad was filed corpus prosequendum State’s on Attorney of Macon and that date the County, As allowing request.
court entered an State’s order noted trial on the criminal previously, defendant’s At charges 1979. commenced November the violation discharge, alleging defendant moved for his trial, his the trial court denied right speedy to and motion. in was
Nothing the record indicates that the defendant delinquency held in custody in connection with the second 26, 1979, petition until he was July produced at which time to the writ of habeas in in the order response corpus, 23, 1979, itself for which was and writ July entered in was July was dated 1979. Until the defendant July adjudication custody being held as a result of the in delinquency previous pursuant severely limits 1979. The Court Act June Ill. custody. (See minor in Rev. authority hold a The 703—1,703—4, 703—5, .) pars. 7 0 3 — 6 no proceeding in the contains delinquency record second as of the Act these sections findings required by or orders as in On the date holding custody. prerequisite times and at all petition the second was filed delinquency 26,1979, being was July thereafter the defendant in the earlier in entered custody under a detainer order case, adjudicatory hearing. delinquency following an 26, 1979, defendant discloses that on July record been He had present in court in of the sheriff. custody Corrections, Department by delivered to sheriff corpus writ of habeas division, response in the proceeding. issued second Criminal Procedure Section 103 — 5 of the Code of 5) provides: an “Every custody this person having alleged shall tried offense be taken jurisdiction he was days within 120 from the date custody ***.” into custody held in this must be
Under section the defendant *5 for the charge prosecuted for which he is before the being 120-day period on that run. That charge begins period, however, may run and before begin to at the time of arrest the defendant has been v. formally charged. (People Jones 357, (1965), 360; 33 Ill. 6 Ill. (1972), 2d v. Sexton People 779, 781; App. 3d (1969), App. 107 Ill. 2d People Nettles 143, 149.)In in custody our case the defendant was not held under any order this second relating to offense or the 26, 1979, delinquency petition until July when he returned to the circuit County pursuant court of Macon Act, the writ of habeas corpus. Under the Court Juvenile minor cannot in custody be held in except conformance requirements of that Act. Since no order was entered restraining 26, 1979, defendant in the second case until July the 120-day period had not run when the defendant was brought 19, to trial on November 1979.
Furthermore, we are convinced that the 120-day period should not in commence such cases the court enters an order authorizing prosecuted to be as an adult for the offense he allegedly (See committed. Ill. Rev. Stat. 37, ch. par. 7.) In this case that order was entered 702 — August 1979. This prompted conclusion is by dis tinctly different nature of the proceedings; two those under Act, Court and proceedings under the Criminal Juvenile Code of 1961 Criminal and the Code of Procedure of 1963.
The reason for this is very conclusion found language of section 103 — 5 of the Code of Criminal Proce (Ill. dure of 1963. Rev. par. 5.) ch. It is apparent from language this it section that relates to the criminal prosecutions only. applies only Section 103 — 5 persons held in custody An alleged for an offense. offense is defined in the Criminal Code of 1961 as “a violation of any penal this (Ill. statute of State.” Rev. Stat. par. 12.) In a proceeding under the Juvenile Act, Court the minor is not held in for an custody alleged offense. The provides Court Act that no minor
shall be denominated a criminal adjudica reason an Act, tion under adjudication nor shall be denomi any nated a conviction. 702 — earlier, As noted Act limits hold strictly authority custody. minor Under the Act the minor not held offense, an custody alleged pursuant but to an order of which may be entered under the limited condi tions provided example, adjudi in the Act. prior For hearing, hearing only catory the court at a detention can detained, alleged not as a result *6 offense, is only necessary but if the court that finds detention for or protection property the of the or of person minor the likely jurisdiction of another or minor is the that the to flee 37, 1979, of the court. find
Following hearing, an court does not adjudicatory the offense, minor an but finds him to be guilty the of Act, and delinquent pursuant Court not the provisions under the of the Criminal Code of 1961 or Also, if Code of Criminal of 1963. the Procedure Act, no orders is the minor detained under the there provision that by posting him avoid permits detention bail. States, in of their rules construing language
Other the 103 — 5 and statutes that in similar to contained our section 1963, that of have held the Code of Criminal Procedure their while speedy requirements apply trial do not minors White In State v. jurisdiction under the juvenile of the court. 175, 173, court of (Iowa 1974), supreme 223 N.W.2d the provided: Iowa in its code which language considered “ public offense, for a person ‘When a is held answer thirty against him if not an indictment be found to be prosecution must days, the court ” added.) (Emphasis dismissed ***.’ for to answer is not held The court held that an accused ishe unless public code meaning of the within offense held for a crime.
17 “Proceedings for juvenile prosecutions court are not They crime. are as an special proceedings which serve prosecution ameliorative alternative criminal (State 1974), children.” 223 N.W.2d (Iowa v. White 173,175.)
The court jurisdiction held that a child under the is juvenile court not public held to answer for a offense he transferred Both prosecution as an adult. language language Iowa code of section and 103—5 of our procedure code of criminal use word “offense.”
In State v. N.M. (1976), Howell 89 546 P.2d 859, the New Mexico “in custody” court construed the language of its speedy trial rule as to minors applying not “Childrens, held under the In Code.” ex rel. Williams v. Court (1975), Common Pleas St. Ohio 2d N.E.2d the Ohio court held of its language speedy trial limitations did and apply not to minor juvenile that the within scope speedy comes trial requirements if only relin- when quishes jurisdiction and to the appropriate transfers court. To the same (1976), effect is Commonwealth Bell 245 Pa. Super. 345; per A.2d curiam affirmed (1978), 481 Pa. 392 A.2d the court where construed speedy trial language Pennsylvania. The court held *7 a that delinquency petition filing does not constitute the of a complaint against the period minor and that the time commences at that time the comes when within the powers of the criminal court. (Fla.
Florida has contrary. held to the In v. State Benton 1976), 337 So. 2d held that Supreme Florida Court speedy trial juvenile when the period time commenced was taken into custody gave as a which result conduct to rise that delinquency petition. The court noted Florida appellate had previously contrary to the and stated that holding that correct at the time that it
was rendered. The court Benton based holding its subse- trial rule adoption juvenile speedy procedural of a stated, case, which, rendered the court quent earlier obsolete. State v. Benton 1976), (Fla. previous holding 337 So. 2d 798. cases, from finding
In in addition to the above requirements trial language respective speedy their and not prosecutions they apply only intent that to criminal that a also considered juvenile proceedings, to the courts a criminal and different from juvenile proceeding distinct 141, 605 In State v. Jacks App. 25 Wash. prosecution. (1980), court, had reached Washington P.2d which result, exclu given court was juvenile same noted that the stated The court offenders. jurisdiction juvenile sive over governing it with the rules that would be inconsistent to applicable time limitations juvenile proceedings apply rules juvenile that prosecutions, noting criminal interest juvenile’s protect had their own time limitations to Howell, Mexico court in a trial. In the New speedy specif of that State out that the “Children’s Code” pointed code, not be shall under the ically provided juvenile, that a seem to it would deemed a convict and reasoned the case to the transfer period prior follow that the time computing not count juvenile out of the court would tried. must be charges criminal period of time within which well applies equally The rationale of these cases Act Court under Clearly, proceeding Illinois. Juvenile prosecution, a criminal is distinct and different from exclusively apply of that Act provisions criminal authorizes until such time as the court offenders 7.) (Ill. Rev. prosecution. for the limitations specific Court Act has 1979, ch. (Ill. Rev. thereunder. proceedings various Also, 703-5(4), 703—2,703—4, ( 1), pars. 0 3 — 7 5 concerning service Act Court requirements of the Juvenile the minor parents upon or notice summons *8 703—2,703—5(3), 703—6(3), 704—3, pars. — 7 0 4 Act, ) peculiar time are to under the are proceedings 4 not relevant consuming, proceedings are consistent with to a criminal prosecution. The rationale of the Juvenile criminals; juvenile Court Act is that offenders are not proceedings prosecutions; under the Act are not criminal adjudications under the are a minor Act not convictions and adjudicated so consequences of a does not suffer criminal conviction. Rev. Stat. 9(1).) We with agree reasoning of the cases from jurisdictions
other cited above that it is not consistent with the purposes and intent apply of the Court Act to Juvenile the provisions of the Code of Criminal Procedure of 1963 to a juvenile offender prior to court authorizes the prosecute him as an adult.
It may be this in a holding juvenile that will result being offender his days prior incarcerated more than 120 if trial is he as an adult. prosecuted authorized to be However, prior entry prose- of the authorizing cution, the minor enjoys certain and benefits protections under the Court Act to one that are not extended Juvenile charged not, with a crime. example, required He Also, post Act, earlier, bail. permits juvenile as noted offender only specific to be detained upon findings court, and strict imposed time limitations are upon various under the proceedings Act.
This court has recognized unique juvenile nature of proceedings and the value be retaining a distinction tween (In Beasley juvenile re and criminal processes. cert,
(1977), 66 Ill. 2d U.S. denied (1978), 434 L. Ed. 2d Ct. 734); People Taylor (1979), 98 S. 76 Ill. 289, 307.) It is 2d Act proceedings Court Juvenile filing a The adult delinquency petition commences. criminal process imposed is not until the upon outcome of transfer hearing prosecution which authorizes as an adult. ignore To hold otherwise would be
underlying philosophy of the Court Act. *9 Act a differ (a) require
Nor does section of the 2(3) 1 — provides: ent result. That section Act, following this procedures “In all under shall apply: minor
(a) procedural The assured to the rights rights specifically shall unless be of adults precluded by protection laws which enhance the 1979, 37, par. (Ill. Stat. ch. such minors.” Rev. 2(3) (a).) 701 — 120-day provisions require
The this not that the statute do authorizing period the order commence run before time the the minor adult. Prior to that prosecuted to be as an minor is under protected the constraints of Juvenile in State which, Court Act as the Iowa court by stated 175, White 173, (Iowa prosecu- “not 1974), N.W.2d are as for serve They proceedings tions crime. are which special of chil- prosecution an ameliorative alternative to criminal dren.” is appellate of the
Accordingly, judgment for appellate reversed. The cause is remanded to issues. remaining consideration of the remanded,
Reversed and with directions. SIMON, specially concurring: JUSTICE I in that the defend ground concur the decision on the offense, ant was in the one out custody for a different not arose, was not which this reason he and for more cloaked trial act for protection speedy with the with disagree than his I days before trial commenced. commit position the court’s alternative that minors do not “in offense” custody “offenses” can never for an be sense they status. are transferred to adult Common is in robbery says that for person custody armed offense, trial clock custody speedy so start the for an as to 5(a)). (Ill. Rev. Stat. ch. par. 103 — this statute of any penal means a violation “Offense” In other 12.) par. Stat. ch. (Ill. State. Rev. if ishe an offense words, custody is in person delinquent A statute. custody penal for a violation of a any to violate attempted is has or minor one who violated (Ill. Rev. municipal or ordinance. Federal or State law are not definitions While delinquent identical, Essentially, is the same. the idea of both The focus an offense. minor is one who commits conduct, on how not the defendant’s definitions delinquent as custody A will legal system respond. offense” custody alleged is “in for an 5(a)). par. 103 — this policy Court Act declares of adults rights procedural to be that minors shall have the enhance laws which specifically “unless precluded *10 37, par. such protection of minors.” in fact provision trial 2(3)(a).) juvenile speedy The delinquents rule: stringent more than the adult days, unless judicial detention are to be tried within 10 (Ill. Rev. extension good 20-day State shows cause for a then, Why, should 2). a real adult? as an adult than protection tried have less spirit and the the letter court’s conclusion contravenes both of our statutes.