concurring in part and dissenting in part:
I would reverse the contempt conviction and sentence but would remand for a new hearing on the contempt charge.
Since the decision in People v. Gilmore (1976), 63 Ill. 2d 23, 344 N.E.2d 456, a substantial question exists as to whether the failure of the circuit court to follow statutory requirements deprives it of jurisdiction to enter an order provided for in that statute. (See also Lopin v. Cullerton (1977), 46 Ill. App. 3d 378,361 N.E.2d 6; Fins, Illinois Appellate Procedure Under the New Constitution 47 (2d ed. 1977).) Even without reference to Gilmore, a circuit court’s failure to adjudicate wardship upon determining delinquency was held to make a probation order not void but only voidable in In re Brown (1977), 48 Ill. App. 3d 171, 367 N.E.2d 707. Upon appeal from a subsequent order revoking the minor’s probation and committing him to the Department of Corrections, the appellate court did not set aside the order placing the minor on probation. Rather, it remanded the case to the trial court to determine whether the best interests of the minor and the public required that he be declared a ward. If the requirement was found to exist, the order was to stand; if not, the minor was to be discharged.
Regardless of what the present rule may be as to the necessity of the circuit court following the statute in order to obtain jurisdiction of a statutory proceeding, I do not deem the instant record to be so flawed as to have deprived the trial court of jurisdiction to have entered the order, the alleged violation of which was the basis of the contempt proceeding.
I interpret the intent of the judge entering the order with reference to supervision to have been to impose a continuance under supervision pursuant to the terms of section 4 — 7. The judge did pronounce in open court that he found the minor to be a person described in the petition, but he then continued the matter for a definite period with the minor under supervision. This pronouncement could be considered to be an entry into the “minutes.” However, the formal order filed on the same day, but presumably after the pronouncement, made no reference to the minor being any type of person covered by section 2 — 1. The reference to a continuance under supervision pronounced in court corresponded to the reference to section 4 — 7 in the formal order. The inaccurate reference in the formal order to a dispositional hearing being held should be treated as surplusage.
The supreme court’s upholding of the In re Baker contempt order was based upon the trial court’s inherent contempt power. That power would logically be as applicable to violations of an order entered pursuant to a continuance as to an order entered after an adjudication. The precedent of that case is binding here.
The validity of the order requiring the school attendance was not destroyed by its failure to expressly state that a failure to attend school might be excused. Any probationary type order is subject to permissible noncompliance on reasonable grounds. Accordingly, an excused absence would not have been a wilful and contumacious failure to abide by the court order. However, the instant contempt proceeding was a criminal proceeding and Supreme Court Rule 402 (73 Ill. 2d R. 402) was applicable. The court complied with the rule in most respects, but the record is not clear that the minor was advised that an absence would not have been contempt if a reasonable excuse for the absence existed. The factual basis for the minor’s admission of contempt did not show that the absence was without reasonable excuse. For these reasons I agree with the majority that the judgment of contempt must be set aside.
The purpose of the use of the contempt procedure in a case of this nature is to uphold the power of the court. (In re G.B.) I look upon its use in cases of this nature with more favor than does the majority, but it must be recognized that the severity of the punishment should be limited by that necessary to serve the purpose of the proceeding. We indicated in In re G. B. that criminal probation accompanied by incarceration was inappropriate for use against a minor in a case of this nature. The court should impose the incarceration desired and then let the juvenile procedure continue.