T. E., In re
| Decision Date | 26 June 1981 |
| Docket Number | 53344,Nos. 53329,53687 and 53716,s. 53329 |
| Citation | 423 N.E.2d 910,53 Ill.Dec. 241,85 Ill.2d 326 |
| Parties | , 53 Ill.Dec. 241 In re T. E., a Minor, Appellant (The People of the State of Illinois, Appellee). In re R. H., a Minor, Appellee (The People of the State of Illinois, Appellant). In re B. W. S., a Minor, Appellee (The People of the State of Illinois, Appellant). In re S. C. G., a Minor, Appellant (The People of the State of Illinois, Appellee). |
| Court | Illinois Supreme Court |
William J. Scott, Atty. Gen., Chicago, and Dennis P. Ryan, State's Atty., Waukegan, Phyllis J. Perko, Deputy Director and Barbara A. Preiner, Staff Atty., State's Attys. Appellate Service Commission, Elgin, for the People.
Daniel D. Yuhas, Deputy Defender and Gary R. Peterson, Asst. State Appellate Defender, Springfield, for appellant T. E.
Robert Agostinelli, Deputy Defender and Michael Filipovic, Asst. Defender, Ottawa, for appellee S. C. G.
Daniel D. Yuhas, Deputy Defender and Gary R. Peterson, Elizabeth E. Clarke, Marilyn J. Martin, and Michael Filipovic, Asst. Defenders, Springfield, for appellant S. C. G.
In each of the four cases consolidated on appeal, the respective minors were found to be delinquent, were adjudicated wards of the court, and were placed on an indefinite term of probation. Each minor's probation was later revoked and a dispositional order entered. On appeal from an order revoking probation, the appellate court held in each case that the circuit court erred in placing the minor on probation without specifying a definite term. However, the respective districts of the appellate court differed as to the effect of the error on the subsequent revocation. In In re B. W. S. (1980), 84 Ill.App.3d 1197, 43 Ill.Dec. 691, 410 N.E.2d 691 (order under Supreme Court Rule 23), and in In re R. H. (1980), 82 Ill.App.3d 578, 37 Ill.Dec. 908, 402 N.E.2d 910, the Second District of the Appellate Court reversed each minor's order granting probation, vacated the subsequent orders revoking probation, and remanded the causes for further proceedings. In In re T. E. (1980), 81 Ill.App.3d 630, 37 Ill.Dec. 14, 401 N.E.2d 1107, the Fourth District of the Appellate Court held that the initial order granting probation without a definite term was erroneous. However, it also ruled that "since the possible maximum term of 5 years had not elapsed at the time of its entry, the order was not void, but at most voidable and subject to clarification." (81 Ill.App.3d 630, 634, 37 Ill.Dec. 14, 401 N.E.2d 1107.) The court, analogizing to In re Brown (1977), 48 Ill.App.3d 171, 10 Ill.Dec. 254, 367 N.E.2d 707, ruled that the case should be reversed and the cause remanded to the juvenile court to permit that court to fix a definite term of probation and, after doing so, determine whether the act upon which the revocation was based fell within that definite term. The court stated:
(81 Ill.App.3d 630, 634, 37 Ill.Dec. 14, 401 N.E.2d 1107.)
In In re S. C. G. (1980), 84 Ill.App.3d 471, 40 Ill.Dec. 584, 406 N.E.2d 590, the Third District of the Appellate Court, following In re T. E., reversed and remanded the cause to the juvenile court with similar directions. We allowed petitions for leave to appeal in each of the four cases.
To be determined is the effect a dispositional order that places a minor on probation for an indefinite term has on subsequent proceedings.
In the case of T.E., cause No. 53329, a petition for adjudication of wardship was filed in the circuit court of McLean County alleging that T.E., then 13 years of age, had committed the offense of theft. On June 6, 1978, T.E. was found by the court to be a delinquent minor and was adjudged a ward of the court. At a dispositional hearing on October 30, 1978, T.E. was placed on probation for an indefinite term. A petition to revoke probation was filed on December 7, 1978, alleging that T.E. had committed the offense of theft. A hearing was held on January 18, 1979, wherein the trial court revoked T.E.'s probation. A dispositional hearing was held on March 21, 1979, and an order entered committing T.E. to the Department of Corrections, Juvenile Division.
In the case of R.H., cause No. 53344, the minor, R.H., 12 years of age, was made a ward of the circuit court of Lake County on March 13, 1974. Between April 9, 1974, and November 23, 1977, several petitions were filed alleging delinquency, and various orders were entered. On May 8, 1978, a further delinquency petition was filed alleging that R.H. committed the offenses of robbery, battery, and theft. At a hearing held on May 22, 1978, the trial court ordered that R.H. be placed on probation, but did not specify a definite term. On August 1, 1978, the State filed a petition alleging that R.H. had violated his probation when on July 21, 1978, he committed the offense of burglary. The court found that the State had proved the probation violation, and on September 15, 1978, entered a dispositional order committing R.H. to the Department of Corrections, Juvenile Division.
In the case of S.C.G., cause No. 53716, the State filed a petition in the circuit court of Kankakee County alleging that S.C.G., 13 years of age, was delinquent in that he committed burglary. A hearing was held on August 3, 1977, at which S.C.G. was found delinquent and was placed on probation. No termination date was specified. A petition to revoke probation was filed on April 10, 1978, but was later dismissed with the notation on the order "minor to remain on probation." A second petition to revoke probation was filed on August 31, 1978, alleging that S.C.G. had committed retail theft. On September 15, 1978, the court found that the minor had violated his probation. On October 18, 1978, the court ordered S.C.G. committed to the Department of Corrections, Juvenile Division.
In the case of B.W.S., cause No. 53687, a delinquency petition was filed in the circuit court of Lake County alleging that B.W.S., 14 years of age, committed burglary and criminal damage to property. He was adjudicated delinquent and ordered placed on an indefinite term of probation on May 1, 1978. The order bore the notation "shall be reviewed on November 14, 1978." A petition for hearing on violation of probation was filed July 21, 1978, alleging that B.W.S. committed criminal trespass to a motor vehicle. On August 1, 1978, the court found that B.W.S. had violated probation and ordered that he be continued on probation. Petitions alleging delinquency and violation of probation were filed on September 4, 1978, and September 7, 1978. At a hearing held on December 15, 1978, the court found that B.W.S. had committed attempted murder, armed violence, burglary, aggravated assault, and unlawful use of weapons. On December 27, 1978, a dispositional order was entered continuing B.W.S. on probation with a termination date of December 29, 1981.
During oral argument, counsel for the minors stated that the minors in cause Nos. 53329, 53344, and 53716 had each been released from custody by the Department of Corrections.
In In re Sneed (1978), 72 Ill.2d 326, 21 Ill.Dec. 194, 381 N.E.2d 272, the court, in interpreting the Juvenile Court Act, held that a disposition of probation must be for a definite term. From this interpretation, we find, as did each of the divisions of the appellate court below, that the original order of probation for an indefinite term was erroneous.
The State argues that the failure of each minor to directly appeal the original order of indefinite probation renders the error waived. The minors argue that the error in the original probation order was not waived in that the order was void and hence open to attack at any time.
The general rule is that where no direct appeal was taken from the original order of probation and the time for appeal had expired, a court will be later precluded from collaterally reviewing the propriety of that initial order in an appeal from the revocation of that probation. (People v. Stueve (1977), 66 Ill.2d 174, 178, 5 Ill.Dec. 256, 361 N.E.2d 579.) However, if an order is void, it may be attacked at any time. Chicago v. Fair Employment Practices Com. (1976), 65 Ill.2d 108, 112, 2 Ill.Dec. 711, 357 N.E.2d 1154.
The State argues that the orders of probation are not void in that the trial court had jurisdiction over both the parties and the subject matter and possessed the statutory authority to impose probation. While it is true that the trial court possessed the statutory authority to impose probation, such authority was limited to the fixing of a definite term.
The established rule is that where a court having jurisdiction over both the person and the offense imposes a sentence in excess of what the statute permits, the legal and authorized portion of the sentence is not void, but the excess portion of the sentence is void. (People ex rel. Barrett v. Sbarbaro (1944), 386 Ill. 581, 590-91, 54 N.E.2d 559; People v. Hamlett (1951), 408 Ill. 171, 178, 96 N.E.2d 547; People v. Williams (1977), 47 Ill.App.3d 861, 865, 8 Ill.Dec. 166, 365 N.E.2d 404.) The State relies on People v. Holzapple (1956), 9 Ill.2d 22, 136 N.E.2d 793, wherein the defendant was convicted of the offense of burglary and sentenced to a term of not less than one year nor more than life. The statute fixed the punishment for burglary at not less than one year nor more than 20 years. The court ruled:
(Emphasis added.) (People v. Holzapple (1956), 9 Ill.2d 22, 27, 136 N.E.2d 793.)
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