No. 3--00--0413

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The circuit court adjudged the minor, Jessie B., to bedelinquent and placed him on one year's probation. The courtlater issued a nunc pro tunc order extending the probation tofive years. The State filed a petition to revoke probation,which the trial court granted. On appeal, the State argues thatthe case is moot because Jessie has already been released fromthe Department of Corrections, Juvenile Division (DOCJD). Jessiecontends that (1) the case is not moot because he facescollateral legal consequences from the revocation of hisprobation, (2) the trial court lacked jurisdiction over him whenit granted the State's petition to revoke his probation, and (3)the State failed to prove by a preponderance of the evidence thatJessie violated a condition of his probation. We hold that thecase is not moot and affirm. 

BACKGROUND

On September 3, 1997, the State petitioned the circuit courtto adjudge the minor, Jessie B., to be a ward of the courtbecause of his delinquency. Jessie's birth date is August 24,1981. The petition alleged that he had committed residentialburglary (720 ILCS 5/19--3 (West 1996)) and theft of services(720 ILCS 5/16--3(a) (West 1996)) on May 25, 1997. The petitionalso alleged that he committed disorderly conduct (720 ILCS 5/26--1(a)(1) (West 1996)) by fondling himself in plain view of afemale neighbor on September 1, 1997.

On September 12, 1997, the minor stipulated to havingcommitted residential burglary and theft of services, but deniedthe disorderly conduct charge. The State dismissed thedisorderly conduct allegation. The court adjudged Jessie to bedelinquent.

On October 31, 1997, the court placed Jessie on one year'sprobation with the condition that he "comply with andsuccessfully complete the residential program at Onarga Academy,"a treatment facility for youths with sexual behavioral andpsychological problems. On October 16, 1998, the Statepetitioned the court to revoke Jessie's probation because theminor had failed to meet treatment goals at Onarga.

Following a February 4, 1999, hearing on the petition torevoke, the court did not determine whether Jessie had violatedhis probation. Instead, by agreement of the parties, the courtissued an amended probation order extending Jessie's probationuntil August 4, 1999, to allow him to work toward successfulcompletion of the Onarga program. This amended order stated that"all prior conditions of Probation shall continue." At a June25, 1999, status hearing, the parties agreed to continue the caseuntil August 19, 1999.

At a status hearing on August 19, 1999, the State moved forleave to file a second petition to revoke Jessie's probationbased on new information from Onarga. The court granted theState's motion and the State filed its second petition to revoke. In this petition, the State alleged that Jessie had "failed tosuccessfully complete the first of the three phase treatment planduring his twenty month placement at Onarga Academy."

On September 1, 1999, Jessie filed a motion to dismiss theState's petition to revoke. In this motion, Jessie argued thathis probation ended on August 4, 1999, and the State's petitionto revoke was not filed until August 19, 1999. Jessie contendedthat because the State's petition was filed after his probationended, the court did not have jurisdiction over him to considerthe petition.

In its response, the State argued that the court's originalOctober 31, 1997, probation order of one year's probation wasinvalid. The State submitted that by statute, the commission ofa forcible felony by a juvenile, such as residential burglary,required a probationary period of five years. See 720 ILCS 5/2--8 (West 1996); 705 ILCS 405/5--24 (West 1996).⁽¹⁾

On December 2, 1999, the court denied Jessie's motion todismiss the petition to revoke. The court ruled that theoriginal probation order was void and set Jessie's probation atfive years, nunc pro tunc. On December 8, 1999, the court againamended the probation order to reflect that Jessie was now onprobation for five years and continued all prior conditions ofprobation.

On January 21, 2000, the court held a hearing on the State'ssecond petition to revoke. The testimony at the hearingindicated that the Onarga treatment program was in three phases. The average stay at Onarga to complete the three phases was ayear and a half. The average period to complete the first phasewas 6 to 10 months. Jessie had been at Onarga for 26 months andhad not completed phase one because of his noncompliant behavior.Although Jessie had made progress toward the completion of phaseone during the two months immediately prior to the hearing, witnesses estimated that he was 6 to 10 months from completion ofthe full program.

At the end of the hearing, the judge noted that Jessie hadnot completed the first phase of the three-phase program. Shenoted that he had taken far longer than originally projected tocomplete the program. She stated that it did not appear thatJessie could complete the program within the near future. Thejudge found that the State had proven by a preponderance of theevidence that Jessie had failed to even come close to substantialor successful completion of the program. The court granted theState's petition and revoked Jessie's probation.

At the February 18, 2000, dispositional hearing, the courtordered Jessie to be committed to an indeterminate term ofincarceration with the DOCJD. Jessie appeals from this finaljudgment.

The record includes a document from the DOCJD filed with thecourt on May 23, 2000, entitled "Notice of StatutoryRelease/Discharge from Juvenile Division." This document statesthat Jessie was to be released from the DOCJD on August 24, 2000,his nineteenth birthday.

ANALYSIS

I. Mootness

Initially, the State argues that Jessie's appeal is mootbecause his wardship was terminated on August 24, 2000, when heturned 19 and was released from the DOCJD. The test for mootnessis whether the issues involved in the circuit court no longerexist because intervening events have rendered it impossible forthe appellate court to grant the complaining party effectualrelief. Pierce Downer's Heritage Alliance v. Village of DownersGrove, 302 Ill. App. 3d 286, 704 N.E.2d 898 (1998). An exceptionto the mootness doctrine exists, however, where there arecollateral legal consequences which survive the expiration of theorder under review. People v. Halasz, 244 Ill. App. 3d 284, 614N.E.2d 311 (1993).

In the present case, there are collateral legal consequenceswhich survive Jessie's discharge. For example, if Jessie were tobe convicted of a crime as an adult in the future, his sentencemay be affected by his history of prior delinquency as a factorin aggravation. See 730 ILCS 5/5--5--3.2(a)(3) (West 2000); Inre W.C., 167 Ill. 2d 307, 657 N.E.2d 908 (1995). Under thecollateral legal consequences exception to the mootness doctrine,this case is not moot.

II. The Circuit Court's Jurisdiction

Jessie argues that his probation ended on August 4, 1999,and, therefore, the court lacked jurisdiction over him toconsider the State's second petition to revoke, filed on August19, 1999. He contends that the circuit court lacked authority tochange his term of probation from one year to five years, nuncpro tunc, thereby retaining jurisdiction over him as of August19, 1999.

The State submits that even if the trial judge improperlychanged Jessie's term of probation, nunc pro tunc, the State'soriginal October 16, 1998, petition to revoke was still pendingbefore the court on August 19, 1999. The State argues that thependency of its first petition to revoke gave the courtjurisdiction over the minor when the State submitted its secondpetition to revoke.

A nunc pro tunc order is designed to allow the record toreflect that which was already done previously, but which wasomitted from the record. People v. Adams, 144 Ill. 2d 381, 581N.E.2d 637 (1991). A nunc pro tunc order may be entered tocorrect clerical errors, or inadvertent scrivener's errors, butsuch an order cannot be used to correct judicial errors. Schaffner v. 514 West Grant Place Condominium Ass'n, 324 Ill.App. 3d 1033, 756 N.E.2d 854 (2001). A court may not use a nuncpro tunc order to correct judicial errors that are the result ofdeliberate but erroneous judicial reasoning. Gounaris v. City ofChicago, 321 Ill. App. 3d 487, 747 N.E.2d 1025 (2001).

In the present case, the trial court entered a nunc pro tuncorder to correct the judicial error of an incorrect term ofprobation as the result of deliberate but erroneous judicialreasoning. This error was not the result of a clerical orscrivener's error. Thus, the circuit court improperly used anunc pro tunc order to change Jessie's probation from one year tofive years.

Nevertheless, an appellate court may affirm the trialcourt's ruling on any basis supported by the record. AmericanMulti-Cinema, Inc. v. City of Warrenville, 321 Ill. App. 3d 349,748 N.E.2d 746 (2001). The filing of a petition to revokeprobation tolls the period of probation until the finaldetermination of whether the minor violated a condition ofprobation, and the term of probation does not run until thehearing and disposition of the petition. 705 ILCS 405/5--720(1)(West 2000).

In this case, the State filed its first petition to revokeon October 16, 1998, tolling Jessie's period of probation until afinal determination of whether he violated a condition of hisprobation. On August 19, 1999, the court had not ruled on thedisposition of that petition. Jessie's term of probation wastolled by the filing of the State's first petition to revoke. Therefore, the circuit court had jurisdiction over Jessie onAugust 19, 1999, to accept the State's second petition to revoke.

III. Violation of a Condition of Probation

Jessie argues that the court erred in revoking his probationby finding by a preponderance of the evidence that he hadviolated a condition of his probation. He contends that theState proved only that he had failed to complete the first phaseof a three-phase program. Jessie submits that the probationorder only required him to work toward successful completion oftreatment, not to successfully complete one specific phase ofthat treatment.

The State argues that the conditions of the originalprobation order were continued in each of the subsequent amendedprobation orders. The State contends that Jessie's probation wasconditioned upon his complying with and successfully completingthe Onarga program. According to the State, the evidence wasoverwhelming that he violated that condition of his probation.

At the hearing on a petition charging a violation of acondition of probation, the State must prove the violation by apreponderance of the evidence. 705 ILCS 405/5--720(3) (West2000). An appellate court will not disturb the trial court'sruling to terminate probation unless the trial court'sdetermination was against the manifest weight of the evidence. People v. Bell, 219 Ill. App. 3d 264, 579 N.E.2d 1154 (1991).

In this case, the condition of Jessie's probation at issuewas whether he had complied with and successfully completed theOnarga treatment program. This was a condition of Jessie'sprobation as stated in the original probation order and in eachof the subsequent amended orders. The State produced ampleevidence that Jessie failed to comply with and successfullycomplete even the first phase of the three-phase program oftreatment. Therefore, we hold that it was not against themanifest weight of the evidence for the trial court to revokeJessie's probation.

CONCLUSION

For the foregoing reasons, we affirm the judgment of thecircuit court of the McDonough County.

Affirmed.

LYTTON, P.J., and McDADE, J., concurred.

1. Section 5--24 was subsequently repealed by Public Act 90--590. (Pub. Act 90--590, eff. January 1, 1999 (repealing 705 ILCS405/5--1 through 5--34 (West 1996)).