2016 IL App (1st) 150041
                                 Nos. 1-15-0041 & 1-15-0645 (consolidated)
                                      Opinion filed September 13, 2016

                                                                      Second Division
     ______________________________________________________________________________

                                                  IN THE

                                    APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT

     ______________________________________________________________________________

     In re DETENTION OF                                    )     Appeal from the Circuit Court
                                                           )     of Cook County.
     JONATHAN KING                                         )
                                                           )
     (The People of the State of Illinois,                 )     Nos. 11 CR 800002 & HCC-14-
                                                           )     000201
            Petitioner-Appellee,                           )
                                                           )
     v.                                                    )     The Honorable
                                                           )     Thomas J. Byrne,
     Jonathan King,                                        )     Judge, presiding.
                                                           )
            Respondent-Appellant).                         )


     ______________________________________________________________________________

            PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
            Justices Pierce and Simon concurred in the judgment and opinion.

                                                OPINION

¶1          In 2011, while in prison on two counts of predatory sexual assault of a child, Jonathan

     King, stipulated he was a sexually violent person under the Sexually Violent Persons

     Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2014)). The trial court ordered King

     committed to the Illinois Department of Human Services for institutional care in a secure facility.

     In 2014, King filed petition for a writ of habeas corpus arguing he should be immediately
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     released from Department custody after the State failed to timely file his annual reexamination

     report as required by the Act. (The reexamination had been completed but was not filed with the

     court.) The trial court struck the habeas corpus petition, finding the State’s delay in filing the

     annual report did not constitute a valid ground for King’s release.

¶2          While the habeas corpus petition was pending, the State filed the reexamination report

     along with a motion for a probable cause finding that King was still a sexually violent person.

     King filed a motion to dismiss, which the trial court denied. King filed a notice of appeal. A few

     months later, the trial court granted the State’s motion for a probable cause finding, from which

     King did not file a notice of appeal.

¶3          King now argues (1) the trial court erred in striking his petition for a writ of habeas

     corpus because the State’s failure to timely file a reexamination report required his immediate

     release and (2) the trial court erred in denying his motion to dismiss. The State counters that this

     court does not have jurisdiction to address King’s motion to dismiss since the order was not a

     final and appealable order and that the trial court properly struck King’s habeas corpus petition

     as the delay in filing the reexamination report could not be a ground for his immediate dismissal

     from custody. We agree with the State on both issues.

¶4                                           BACKGROUND

¶5          In 2001, Jonathan King was convicted on two counts of predatory sexual assault of a

     child and sentenced to 12 years in prison. On August 2, 2011, he stipulated to the State’s

     allegations that he was a sexually violent person under the Act. 725 ILCS 207/1 et seq. (West

     2014). King was committed to the custody of the Department of Human Services under section

     40(a) of the Act, which provides that a sexually violent person shall “be committed to the




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     custody of the Department for control, care and treatment until such time as the person is no

     longer a sexually violent person.” 725 ILCS 207/40(a) (West 2014).

¶6          Under section 55 of the Act, after a person has been committed to Department custody,

     “the Department shall submit a written report to the court on his or her mental condition at least

     once every 12 months *** for the purpose of determining whether: (1) the person has made

     sufficient progress in treatment to be conditionally released and (2) the person’s condition has so

     changed since the most recent periodic reexamination (or initial commitment if there has not yet

     been a periodic reexamination) that he or she is no longer a sexually violent person.” 725 ILCS

     207/55(a) (West 2014). The examiner “shall prepare a written report of the examination no later

     than 30 days after the date of the examination” and “shall place a copy of the report in the

     person’s health care records and shall provide a copy of the report to the court that committed the

     person under Section 40.” 725 ILCS 207/55(b) (West 2014).

¶7          On May 2, 2014, Dr. Richard Travis performed the required annual reexamination and

     concluded, to a reasonable degree of psychological certainty, that King remained a sexually

     violent person and had not made sufficient progress in treatment to be conditionally released.

     Although Dr. Travis’s reexamination and report were timely completed, the State did not file Dr.

     Travis’s report with the trial court. More than five months later, on October 31, 2014, King filed

     an emergency petition for writ of habeas corpus. King argued that because Dr. Travis’s report

     was not filed with the court by September 11, 2014, which he asserts is 12 months from the filing

     of the last reexamination report, the State lost jurisdiction, and he was entitled to immediate

     release from custody. On December 1, 2014, after argument, the trial court struck King’s petition

     for a writ of habeas corpus. The court stated that “[t]here’s nothing in the statute that says [the

     State] lose[s] jurisdiction, it’s just the requirements of the statute.” Thus, the court concluded the


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       State’s failure to comply with the one year reporting requirement is “not a habeas matter.” On

       December 9, 2014, King filed a notice of appeal from the December 1 order.

¶8            Meanwhile, on November 19, 2014, the State filed its motion for a finding of no probable

       cause in King’s sexually violent person case, based on Dr. Travis’s reexamination report, which

       the State also filed. In response, King filed a motion to dismiss, which is not dated. On January

       7, 2015, the State filed a response, and on January 28, 2015, the trial court denied King’s motion

       to dismiss. On February 6, 2015, King filed a notice of appeal from the January 28 order.

¶9            On March 30, 2015, the trial court entered an order granting the State’s motion for a

       finding of no probable cause based on its review of Dr. Travis’s reexamination report. King did

       not file a notice of appeal from the March 23 order.

¶ 10          On August 28, 2015, we consolidated King’s appeal of the order striking his petition for

       writ of habeas corpus and his appeal of the denial of his motion to dismiss. On April 8, 2016,

       King filed his brief, arguing that the trial court erred in striking his habeas corpus petition and in

       denying his motion to dismiss the State’s motion for a finding of no probable cause and granting

       the State’s motion. King asserted that this court has jurisdiction over both issues because his

       notice of appeal on the trial court’s decision to strike his habeas corpus petition was filed nine

       days after the court’s order and his February 6, 2015, notice of appeal from the trial court’s

       dismissal of his motion to dismiss constituted a timely appeal of “the finding of [the] no

       probabl[e] cause issue.”

¶ 11          The State filed a reply brief on May 11, 2016, and, on that same date, also filed a motion

       to dismiss King’s notice of appeal of the trial court’s ruling on the probable cause issue. The

       State argued that in the probable cause proceeding, King filed a notice of appeal on February 6,

       2015, after the trial court denied his motion to dismiss, which is not a final order, but before the


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       trial court entered its finding of no probable cause, and thus, the appellate court lacks

       jurisdiction. King filed a reply asserting that his motion to dismiss was directed not at the State’s

       motion for a finding of no probable cause but at the August 2, 2011, order adjudicating him a

       sexually violent person, which is a final order. We agreed to take the motion with the case.

¶ 12                                              ANALYSIS

¶ 13                             Jurisdiction Over No Probable Cause Finding

¶ 14          The State contends King prematurely filed a notice of appeal after the trial court denied

       his motion to dismiss and did not again file a notice of appeal within 30 days following the trial

       court’s final March 30, 2015, order. We agree.

¶ 15          Under Illinois Supreme Court Rule 303(a)(1), a party may perfect appeal by filing a

       notice of appeal “within 30 days after the entry of the final judgment appealed from, or, if a

       timely posttrial motion directed against the judgment is filed, whether in a jury or a nonjury case,

       within 30 days after the entry of the order disposing of the last pending postjudgment motion

       directed against that judgment or order.” Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015). An appeal

       may be taken from a final judgment as to one or more but fewer than all of the claims only if the

       trial court makes an express written finding of no just reason to delay either enforcement, appeal,

       or both. Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). Without a Rule 304(a) finding, a final order

       disposing of fewer than all the claims is not appealable and does not become appealable until all

       of the claims are resolved. Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458,

       464 (1990). A premature notice of appeal does not confer jurisdiction on the appellate court. See

       Marsh, 138 Ill. 2d at 469.

¶ 16          King’s February 6, 2015, notice of appeal was premature as the trial court had neither

       ruled on the State’s motion for a finding of no probable cause nor made a Rule 304(a) finding.


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       The denial of a motion to dismiss, itself, is not a final and appealable order but an interlocutory

       order, which does not give this court jurisdiction. Mund v. Brown, 393 Ill. App. 3d 994, 996

       (2009). Moreover, consolidation of the two appeals does not confer jurisdiction. See, e.g.,

       Charles v. Gore, 248 Ill. App. 3d 441, 445 (1993) (“A consolidation does not operate to establish

       jurisdiction where there was none before.”). Because King did not file a timely notice of appeal,

       we lack jurisdiction over the trial court’s order finding no probable cause. This ruling does not

       affect this court’s ability to address King’s appeal of the trial court order striking his petition for

       a writ of habeas corpus.

¶ 17                                             Habeas Corpus

¶ 18          A writ of habeas corpus is “ ‘available only to obtain the release of a prisoner who has

       been incarcerated under a judgment of a court that lacked jurisdiction of the subject matter or the

       person of the petitioner, or where there has been some occurrence subsequent to the prisoner’s

       conviction [that] entitle[s] him [or her] to release.’ ”Hennings v. Chandler, 229 Ill. 2d 18, 30

       (2008) (quoting Barney v. Prisoner Review Board, 184 Ill. 2d 428, 430 (1998)). We review

       dismissal of a habeas corpus petition de novo. Id. at 24.

¶ 19          King contends that a postconviction occurrence, namely, the State’s failure to timely file

       a reexamination report within 12 months after his last reexamination report (required under 725

       ILCS 207/55(a) (West 2014)), confers a basis for granting him immediate release, and thus, the

       trial court erred in striking his petition for a writ of habeas corpus. We disagree. Under the Act a

       person is entitled to discharge from Department custody only after a court finding that he or she

       is no longer a sexually violent person. Specifically, section 40(a) of the Act states that a person

       committed as a sexually violent person shall be “committed to the custody of the Department for

       control, care and treatment until such time as the person is no longer a sexually violent person.”


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       (Emphasis added.) 725 ILCS 207/40(a) (West 2014). Section 65 of the Act lays out the

       procedures for obtaining an order of discharge. Specifically, section 65 provides, in part, that

       “[i]f the Secretary determines at any time that a person committed under this Act is no longer a

       sexually violent person, the Secretary shall authorize the person to petition the committing court

       for discharge.” 725 ILCS 207/65(a)(1) (West 2014). Section 65 further provides that once the

       Department’s evaluator opines that the committed person is no longer a sexually violent person,

       the Secretary or designee has 30 days of receipt of the evaluator’s report to “file with the

       committing court notice of his or her determination whether or not to authorize the committed

       person to petition the committing court for discharge.” Id. A petitioner will be discharged from

       the custody or supervision of the Department where the State fails to meet its burden of proving

       a petitioner to be a sexually violent person. 725 ILCS 207/65(a)(3) (West 2014).

¶ 20          Dr. Travis concluded, to a reasonable degree of psychological certainty, that King

       remained a sexually violent person and had not made sufficient progress in treatment to be

       conditionally released. Although the reexamination report was filed more than 12 months after

       the previous reexamination report, the delay is not grounds for discharge under the Act. King

       will be released only when he has been found to no longer be a sexually violent person. King has

       not shown nor has he offered any evidence that he is no longer a sexually violent person. Thus,

       because he has no grounds for immediate release from detention under the Act, the trial court did

       not err in striking his habeas corpus petition. See Barney v. Prisoner Review Board, 184 Ill. 2d
428, 431 (1998) (“Habeas corpus does not lie if the person is in custody by virtue of a final

       judgment of any circuit court, or of any proceeding for the enforcement of such judgment, unless

       the time during which such party may be legally detained has expired.”).




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¶ 21          Moreover, although the Act requires an annual reexamination report, it does not mandate

       discharge if the State fails to do so or it files late. Whether a statutory command is mandatory or

       directory poses a question of statutory interpretation, which we review de novo. People v.

       Robinson, 217 Ill. 2d 43, 54 (2005). “[T]he mandatory-directory dichotomy *** concerns the

       consequences of a failure to fulfill an obligation.” Id. at 52. It “ ‘denotes whether the failure to

       comply with a particular procedural step will or will not have the effect of invalidating the

       governmental action to which the procedural requirement relates.’ ” Id. at 51-52 (quoting Morris

       v. County of Marin, 559 P.2d 606, 611 (Cal. 1977)). To be mandatory, the legislature must have

       dictated a particular consequence for failure to comply with the provision. Pullen v. Mulligan,

       138 Ill. 2d 21, 46 (1990). Otherwise, the statute is directory, “and no particular consequence

       flows from noncompliance.” People v. Delvillar, 235 Ill. 2d 507, 515 (2009). Under the

       mandatory/directory dichotomy, language issuing a procedural command to a government

       official presupposes intent that the statute is directory. This presumption can be overcome where

       (1) negative language prohibits further action in the case of noncompliance or (2) the right the

       provision is designed to protect would generally be injured under a directory reading. Id. at 517.

¶ 22          Section 55 provides that the Department “shall submit a written report to the court on his

       or her mental condition at least once every 12 months.” This is directory. The Act has no

       negative language prohibiting further action in the event the State does not comply. Further, the

       right to annual reexamination as a method for obtaining discharge is not injured by a filing delay

       because the Act provides alternative methods to petition for discharge. A petitioner may seek

       other remedies, including a show-cause order or a mandamus action under section 14-101 of the

       Code of Civil Procedure (735 ILCS 5/14-101 et seq. (West 2014)), compelling the Department to




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       file the report. Thus, King was not entitled to immediate release and the trial court correctly

       dismissed his petition.

¶ 23          Affirmed.




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