747 F.2d 1120 (7th Cir. 1984), 84-1687, United States ex rel. Fitzgerald v. Jordan

Docket Nº:84-1687.
Citation:747 F.2d 1120
Party Name:UNITED STATES of America, ex rel. Taylor FITZGERALD, Petitioner-Appellant, v. James JORDAN, Superintendent, Cook County Juvenile Detention Center, Phillip Hardiman, Director, Cook County Department of Corrections, and Richard M. Daley, State's Attorney of Cook County, Illinois, Respondents-Appellees.
Case Date:October 17, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1120

747 F.2d 1120 (7th Cir. 1984)

UNITED STATES of America, ex rel. Taylor FITZGERALD,



James JORDAN, Superintendent, Cook County Juvenile Detention

Center, Phillip Hardiman, Director, Cook County Department

of Corrections, and Richard M. Daley, State's Attorney of

Cook County, Illinois, Respondents-Appellees.

No. 84-1687.

United States Court of Appeals, Seventh Circuit

October 17, 1984

Argued June 7, 1984.

Page 1121

Alison Edwards, Asst. Public Defender, Chicago, Ill., for petitioner-appellant.

Keven Sweeney, Asst. State's Atty., Chicago, Ill., for respondent-appellee.

Before COFFEY, Circuit Judge, PELL, Senior Circuit Judge, and DUMBAULD, Senior District Judge. [*]

Page 1122

COFFEY, Circuit Judge.

The petitioner, Taylor Fitzgerald, appeals the decision of the District Court for the Northern District of Illinois dismissing his petition for habeas corpus relief. We affirm.


On October 28, 1983, Taylor Fitzgerald, 16 years of age, was arrested and charged by indictment with the crimes of attempted murder and armed robbery. He was brought before an adult criminal trial court pursuant to the "Automatic Juvenile Transfer Statute," Ill.Rev.Stat. ch. 37, Sec. 702-7(6), which provides:

"The definition of a delinquent minor under Section 2-2 of this Act shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with murder, aggravated criminal sexual assault, or armed robbery when the robbery was committed with a firearm. These charges and all other charges arising out of the same incident shall be prosecuted pursuant to the Criminal Code of 1961, as amended." 1

His bond was set at $50,000, but was subsequently reduced to $40,000 on October 31st. Some two months later, on December 27, 1983, the petitioner Fitzgerald challenged the constitutionality of the Automatic Juvenile Transfer statute, ch. 37, Sec. 702-7(6). The trial judge determined that the Automatic Juvenile Transfer statute violated his rights under the Equal Protection Clause of the Fourteenth Amendment and dismissed the case. 2

On that same day, the State filed its notice of appeal to the Illinois Supreme Court as provided in Ill.Rev.Stat. ch. 110A, Sec. 302. Section 302 states:

"(a) Cases Directly Appealable. Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court (1) in cases in which a statute of the United States or of this State has been held invalid ...." 3

The State also filed a motion requesting that the petitioner be required to post bail pending appeal pursuant to Ill.Rev.Stat. ch. 110A, Sec. 604(a)(3):

"A defendant shall not be held in jail or to bail during the pendency of an appeal by the State, or of a petition or appeal by the State under Rule 315(a), unless there are compelling reasons for his continued detention or being held to bail." (Emphasis added).

Pursuant to the State's motion for bail pending appeal, on January 4, 1984, the trial court held a hearing on the question of holding the petitioner to bail during the pendency of the State's appeal. At the hearing, the confession of the petitioner was presented to the court in which he admitted that he was a knowing participant in the armed robbery; in his confession he also stated that "dog," his accomplice to the alleged crime, handled the gun. However, Detective Thomas O'Connor of the Chicago Police Department, Homicide Division, testified that the victim of the armed robbery identified the petitioner as the person who fired a shot at him as the suspects fled from the scene. 4 At the conclusion of the hearing, the trial court determined that "compelling reasons" existed to hold the petitioner to bail pending appeal. After this ruling, the State and petitioner's counsel

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presented arguments as to the amount of bail to be posted. The State noted the seriousness of the offense while petitioner's counsel stressed the petitioner's lack of a prior record, his indigent status, and the willingness of his parents to closely supervise him during the pendency of the appeal. Upon conclusion of the State's and petitioner's presentations, the trial court determined that nothing had changed since the petitioner's earlier bail hearing where bail was reduced to $40,000, requiring 10 percent, or $4,000, in cash for release and thus bail remained the same.

On two separate occasions, January 17 and March 5, 1984, the Illinois Supreme Court in unsigned and abbreviated orders denied the petitioner's request for release from custody or a reduction in bail. In April, 1984, the petitioner filed a motion in the Northern Illinois District Court seeking habeas corpus relief. The district court dismissed the petition but allowed leave to appeal to this court.

On appeal, the petitioner initially asserts that he is being illegally and unconstitutionally detained in violation of the Fourteenth Amendment as there is no charge pending since the statute transferring him to adult court has been ruled unconstitutional. He also contends that any further detention during the pendency of the State's appeal violates his Sixth Amendment speedy trial right. He next alleges that even if his speedy trial right has not been violated, the language in Ill.Rev.Stat. ch. 110A, Sec. 604(a)(3), reciting that a person may be held to bail pending the State's appeal when there exist "compelling reasons" is unconstitutionally vague on its face and also as applied in his case, and thus violates his Fourteenth Amendment due process rights. Finally, the petitioner asserts that the $40,000 bond requiring a $4,000 cash outlay constitutes excessive bail in violation of the Eighth Amendment of the United States Constitution.


  1. The Pending Charge.

    The petitioner asserts that he is being held without a pending charge in violation of his rights under the Fourteenth Amendment. Basically, his position is that since the trial court dismissed the charges against him, the state cannot hold him to bail. However, prior to addressing the substance of this issue, it is imperative to understand the proceedings which took place in the Illinois trial court. Our review of the record leads us to conclude that the trial court neither acquitted the petitioner nor dismissed the indictment against him based upon any substantive grounds when it made its finding that Ill.Rev.Stat. ch. 37, Sec. 702-7(6) was unconstitutional. Neither party to this appeal contends that such was the effect of the trial court's actions. Rather, both parties appear to agree that the trial court dismissed the indictment because it found the Automatic Juvenile Transfer statute violated the Fourteenth Amendment's Equal Protection Clause. Therefore, the trial court dismissed the case apparently because it was without jurisdiction to proceed.

    The first issue before this court is whether the trial court's action in declaring the statute unconstitutional in fact dismissed the charges or whether it merely acted as a temporary suspension of the indictment pending review by the Illinois Supreme Court. 5 We hold that the latter interpretation is proper based upon our review of the applicable Illinois statutes. This position essentially answers the question that in Illinois criminal charges are not actually "dismissed" until the direct appeal process is exhausted.

    In his brief, the petitioner primarily relies on Ill.Rev.Stat. ch. 110A, Sec. 302 which provides that the Illinois Supreme Court shall take a direct appeal from the circuit court upon the rendering of a "final judgment."

    Page 1124

    He interprets the language "final judgment" to mean that a trial court's dismissal of the case is a final judgment and constitutes a dismissal of all pending criminal charges irrespective of the state's right to appeal. Since ch. 110A, Sec. 302 is a Supreme Court Rule, it is possible that when the Illinois Supreme Court approved of the language, "final judgment," it meant "just that: final." Petitioner's reply brief at 5. However, it is equally plausible that the court meant to say "final order" since a final judgment is usually not considered to be rendered until the direct appeal route is exhausted or the time allowed to appeal has expired. See Supplement to Historical and Practice Notes, Ill.Ann.Stat. ch. 110A, Sec. 302 (Smith-Hurd 1984 Supp.) ("In Garcia v. Tulley, 72 Ill.2d 1, 377 N.E.2d 10, 17 Ill.Dec. 820 (1978), the Supreme Court interpreted Rule 302(a) to allow direct appeal not only of final orders of the circuit court, but also of interlocutory orders appealable as of right under Rule 307." (emphasis added)).

    However, adoption of either position is not critical to the outcome of this case since an examination of section 302 reveals that it is in essence an expediting statute which allows the parties to bypass the Illinois appellate court system and go directly to the Illinois Supreme Court in cases where an Illinois statute, such as ch. 37 Sec. 702-7(6), has been declared unconstitutional. Section 302 is a general statute which is not exclusively limited to review of decisions declaring portions of the Illinois Criminal Code unconstitutional, rather it covers any appeal from a decision declaring a statute, whether civil, criminal, or probate, etc., unconstitutional. No case law has been cited to us, nor have we discovered any in our research, declaring that section 302 governs the determination of when criminal charges are considered dismissed where a criminal statute has been declared unconstitutional. Thus, section 302 merely expedites the appellate process, and does not accurately reflect when the Illinois Supreme Court would consider a criminal charge "dismissed" for purposes of setting bail. 6

    The best indication of when the dismissal of criminal charges becomes final is contained within the language of Ill.Rev.Stat. ch. 110A, Sec. 604, requiring the posting of a bond pending...

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