dissenting:
I dissent.
The majority opinion concludes that this minor can be placed in the Department of Corrections upon revocation of an order for conditional discharge when the petition seeking to have her adjudicated a delinquent did not charge an offense.
Thus, this minor will be incarcerated in the Department of Corrections when she is not charged with anything that constitutes delinquency only because the majority opinion finds no infirmity in the proceeding to revoke the conditional discharge. I find it incredible that the majority refuses to look at the original proceeding to see that no delinquency is charged.
This record tells us that in December 1977, a petition was filed alleging that the then-16-year-old minor girl was a delinquent in that she intentionally escaped from the custody of a named person described as a peace officer. That conduct was said to constitute a violation of section 31 — 6(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 31 — 6(c)). A stipulation in the record tells us that the named person from whom the minor escaped was an assistant probation officer whose primary duties consisted of juvenile matters. A probation officer with juvenile responsibility is not a peace officer; thus, no conduct that can be equated with delinquency is even charged in the petition. A peace officer, within the terms of the criminal escape provisions of the statute, is defined as one “who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses.” (Ill. Rev. Stat. 1977, ch. 38, par. 2 — 13.) The duties of probation officers found in section 12 of the probation act (Ill. Rev. Stat. 1977, ch. 38, par. 204 — 4), and more particularly juvenile probation officers found in section 6 — 1 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 706 — 1), clearly do not include the power of arrest or a mandate to maintain the public order. Given the plain terms of the statute, it is impossible for the minor here to have been guilty of criminal escape based upon an escape from a juvenile probation officer. While not apropos of the instant facts, People v. Perry (1975), 27 Ill. App. 3d 230, 327 N.E.2d 167, stands for the proposition that persons cannot be convicted of criminal escape when the person from whom they have escaped is not a peace officer within the definition of the statute.
If there is no underlying conduct that constitutes delinquency, you can’t be placed on conditional discharge for that conduct. To say, as the majority does, that we won’t reach that issue because of a procedural barrier is to ignore our duty in juvenile matters that, first and foremost, imposes the responsibility of looking to the interest and welfare of the minor. The majority opinion ignores the escape valve found in People v. Gregory (1974), 59 Ill. 2d 111, 319 N.E.2d 483, wherein the supreme court said that upon an appeal relating to a revocation of probation, the defendant was able to challenge the validity of the indictment underlying the offense.
While, under Gregory, I believe we could reverse on the basis of the State’s failure to charge an offense in the indictment, the minor has presented another avenue of attack which is equally viable. The minor filed, concurrent with this appeal, a motion for leave to file a late notice of appeal from the original disposition. That motion was untimely under Supreme Court Rule 606(c) (58 Ill. 2d R. 606(c)). However, as the supreme court has said in People v. Brown (1973), 54 Ill. 2d 25, 26, 294 N.E.2d 267, 268, to deny a motion for leave to file a late notice of appeal when justice requires it and no prejudice will accrue to the People “unduly emphasizes formality at the expense of substance.” In Brown, the court was concerned with the situation of a defendant who had indicated an intent to appeal in a timely fashion but had failed — or his counsel had failed — to get a notice or motion on file within the time provisions of the rule. The majority uses those facts to distinguish this case, arguing that the minor here did not express any desire to appeal within the 30 days following the order finding her delinquent.
That argument ignores the plain meaning of Brown, and, in itself, unduly emphasizes form over substance by merely creating a new formula that must be followed in order to have the rightness of a disposition reviewed by the appellate court. Furthermore, it can be asked how this minor could possibly know how to perfect an appeal or comply with the magic formula required by the majority when the trial court neglected to advise her of her right to appeal as required by Supreme Court Rule 605. The absence of the admonition required by that rule has been held to result in a waiver of the time requirements for filing a motion to vacate a guilty plea, without reference to any superseding “formula” or magic words not elsewhere required. People v. Ryant (1976), 41 Ill. App. 3d 273, 354 N.E.2d 395.
This minor is in the Department of Corrections for a nonoffense, and that is unconscionable.