dissenting:
I do not find any authority to hold a minor in detention pending appeal of the juvenile court’s denial of the State’s motion to try him as an adult, and I therefore dissent.
Section 4 — 2 of the Juvenile Court Act provides:
“Date for adjudicatory hearing. When a petition has been filed alleging that the minor is a [delinquent] ***, it shall be set for an adjudicatory hearing within 30 days. In the case of a minor ordered held in detention or shelter care, however, the petition must be set for hearing within 10 judicial days from the date of the order of the court directing detention or shelter care ***. Whenever a minor is held in detention or shelter care and the petition alleges that he or she committed a crime of violence, the State’s Attorney may by motion *** request that the adjudicatory hearing be postponed. *** For good cause in support of such motion, *** the court may postpone the adjudicatory hearing up to 20 judicial days from the date of the order of the court directing detention or shelter care.” Ill. Rev. Stat. 1979, ch. 37, par. 704—2.
The statute has been interpreted to be directory in nature and not a statement of jurisdiction, mandatory on the court. Thus a juvenile in the custody of his parents is not entitled to a discharge from responsibility for his crimes just because his adjudicatory hearing was not held within 30 days. (In re Armour (1974), 59 Ill. 2d 102.) To interpret it otherwise would conflict with the ultimate policy behind the Juvenile Court Act: to give care, guidance and a chance for rehabilitation to wayward youths. (In re Armour (1974), 59 Ill. 2d 102.) Despite this, however, a juvenile who is being confined is entitled to release pending his adjudicatory hearing, if the hearing is not held within the specified period. (People v. Dean (1977), 52 Ill. App. 3d 383; In re Daniels (1976), 37 Ill. App. 3d 975.) The majority concedes that under normal circumstances this is true, but finds an exception in this case.
No exception is made in the statute for appeals of denials of the State’s Attorney’s motion to transfer a juvenile to adult jurisdiction. I believe that none was intended. The fact that the legislature may not have anticipated that such orders would be appealable does not lessen the applicability of the statute. Instead, the State’s Attorney appears to have a choice when his motion is denied. He can drop the issue and move directly to an adjudicatory hearing in the juvenile court, keeping the minor in custody, or he can appeal the matter, during which time the minor cannot be held in custody.
The absence of exceptions to section 4 — 2 is in direct contrast to the statutory right to speedy trial guaranteed to adults in section 103 — 5 of the Code of Criminal Procedure of 1963, which is the adult counterpart of section 4— 2. That section provides:
“Speedy trial.
(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.” Ill. Rev. Stat. 1979, ch. 38, par. 103—5.
The statute expressly states that interlocutory appeals toll the adult time period. Thus, if the legislature had wished to make exceptions to its guarantee of a speedy trial for detained youths, it knew how and could have done so.
The difference between the two statutes is no accident of draftsmanship. It is evident that the policy against holding youths in detention is very strong, far stronger than for adult suspected offenders. While an incarcerated adult may be held up to 120 days, a juvenile, even a dangerous one, can be held a maximum of 20 days. The Juvenile Court Act expressly states, “The purpose of this Act is to secure for each minor subject hereto such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interest of the community; to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public cannot be adequately safeguarded without removal.” (Ill. Rev. Stat. 1979, ch. 37, par. 701—2.) Detention of any kind is meant to be a last resort; its use is intended to be strictly limited. The majority opinion recognizes, for example, that adjudicated delinquents must be released if a dispositional hearing has not been held within 30 days. It is anomalous to hold that a minor who is merely alleged to have committed a delinquent act can be held in custody indefinitely, while a minor found to have committed such an act cannot.
The majority overlooks the more reasonable interpretation of section 4 — 2 that even though the denial of such transfer motions may be appealable, the State’s Attorney may be required to release the juvenile in order to take the appeal. It reasons that because such appeals always take more than 30 days, the legislature must have intended them to stop the clock on section 4 — 2. I am not at all sure why these appeals have to take that long; and certainly this court, by rule, could establish a procedure for disposing of all appeals of this type within the time frame of section 4 — 2. In any event, in view of the legislature’s expressed policy against the detention of minors for extended periods of time, I find it difficult to believe that it had any intention of allowing State’s Attorneys to hold juveniles pending such appeals just because they might take a long time. The fact that such appeals have been permitted to drag on for a year or more is evidence that the legislature would not have allowed detention of minors pending the final outcome.
Moreover, such appeals are all but hopeless. The standard for review set forth in People v. Taylor (1979), 76 Ill. 2d 289, is one of abuse of discretion, and I know of no case that overturns a juvenile judge’s determination that a juvenile should be tried as a juvenile. Several cases have refused to. (In re Burns (1978), 67 Ill. App. 3d 361; In re Williams (1979), 67 Ill. App. 3d 1109 (Rule 23 order); In re Johnson (1981), 91 Ill. App. 3d 1191 (Rule 23 order).) In this very matter, on November 24, 1981, the appellate court summarily affirmed the juvenile court’s order in regard to Loma Ortiz after she had been held in detention for almost a year. She continues to be in custody while the State’s petition for rehearing awaits decision. Given that the statute allowing for transfer appears to contemplate that transfer to adult jurisdiction would be the exception rather than the rule, it is difficult to imagine that reversals will occur in the future with any frequency. (See Ill. Rev. Stat. 1979, ch. 37, par. 702—7.) Allowing the State’s Attorney to detain juveniles pending such appeals encourages him to make the appeal just for the sake of holding the juvenile. The period of time a juvenile must spend in detention would be subject to the whim of the State’s Attorney.
The majority opinion finds a need to ameliorate its own harsh consequences by allowing for bail. Such a concession is illusory. The juvenile who can make bail is a rarity. He must rely entirely on parents who, in some cases, may be just as happy to have him spend his time in detention and in most cases have no money to provide bail. As a minor, he cannot even enter into a binding contract to borrow bail money.
Interpreting this statute, which measures the time a youth may be held in detention before adjudication in days, to include an exception that could keep the youth in detention for a year or more is incongruous. If it is a desirable exception, the proper way to provide for it is by legislative amendment rather than by judicial creation.