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August 28, 2001

JUSTICE TURNER delivered the opinion of the court:

The State appeals the trial court's denial of itsSeptember 2000 motion to transfer jurisdiction over respondentminor, A.N., from juvenile court for trial as an adult for firstdegree murder. The State also seeks review of the trial court'sSeptember 2000 denial of its motion for substitution of judge. We reverse in part, vacate in part, and remand.

On September 5, 2000, the State filed a petition toadjudicate A.N. a ward of the court, alleging A.N. was delinquentbecause he committed the offense of first degree murder (720 ILCS5/9-1(a)(1) (West 1998)) by shooting his father, Earl Nutter,with a rifle. At a hearing on the State's motion for temporarydetention, Judge Stephen R. Pacey received testimony from PatrickDuffy, an investigator for the Ford County sheriff's department,and granted the State's motion without objection from the guardian ad litem (GAL). After a telephone conference two days later,Judge Pacey allowed the State's motion for a social history andpsychiatric examination of A.N., which motion was supported bythe GAL.

On September 12, 2000, the State filed a motion forautomatic substitution of judge pursuant to section 114-5(c) ofthe Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS5/114-5(c) (West 1998)). The next day, Judge Pacey denied theState's motion to substitute judge based on his having made asubstantive ruling, but he did not specify which ruling.

In October 2000, Judge Pacey held a hearing on theState's motion pursuant to section 5-805(3)(a) of the JuvenileCourt of Act of 1987 (Act) (705 ILCS 405/5-805(3)(a) (West 2000))for discretionary transfer of jurisdiction from the juvenilecourt for trial as an adult pursuant to the Criminal Code of 1961(720 ILCS 5/1-1 through 47-25 (West 2000)). Judge Pacey deniedthe State's motion to transfer jurisdiction, and the Stateappealed.

The State asserts we may review the trial court'sdenial of the State's motion to substitute judge in this interlocutory appeal even though that ruling is not final for purposesof appeal. We agree.

In Sarah Bush Lincoln Health Center v. Berlin, 268 Ill.App. 3d 184, 186-87, 643 N.E.2d 276, 278 (1994), this courtdetermined it could consider, in an interlocutory appeal from apreliminary injunction, whether the trial court erred in denyinga motion for substitution of judge. We noted the propriety of anorder granting or denying interlocutory injunctive relief couldbe determined only in an appeal pursuant to Supreme Court Rule307(a)(1) (155 Ill. 2d R. 307(a)(1)). Berlin, 268 Ill. App. 3dat 187, 643 N.E.2d at 278. We held the scope of review underRule 307 is to review any prior error bearing directly upon thequestion of whether the order on appeal was proper. Berlin, 268Ill. App. 3d at 187, 643 N.E.2d at 279.

The reasoning in Berlin applies to this case. TheState's appeal in this case is permitted by Rule 604(a)(1) (188Ill. 2d R. 604(a)(1)). People v. Martin, 67 Ill. 2d 462, 464-65,367 N.E.2d 1329, 1330-31 (1977). Were the State to proceed andpresent evidence in an adjudicatory hearing, the State would bebarred from bringing criminal proceedings based on the conductalleged in the delinquency petition. 705 ILCS 405/5-805(5) (West2000). Therefore, the propriety of the trial court's ruling onthe State's motion to transfer jurisdiction may be determinedonly in this appeal.

As we concluded in Berlin, 268 Ill. App. 3d at 187, 643N.E.2d at 279, an erroneous refusal of a proper request forsubstitution of judge bears directly upon the question of whetherthe trial court's order on appeal, the State's transfer motion inthis case, was proper. Accordingly, we may review the trialcourt's ruling on the State's motion to substitute judge.

We have jurisdiction to review the trial court's rulingon the State's motion to substitute judge even though the Statefailed to specify it in the State's notice of appeal because itis a step in the procedural progression leading to the specifiedjudgment. See Jiffy Lube International, Inc. v. Agarwal, 277Ill. App. 3d 722, 726-27, 661 N.E.2d 463, 467 (1996), citingBurtell v. First Charter Service Corp., 76 Ill. 2d 427, 435, 394N.E.2d 380, 383 (1979). Had the State's motion to substitutejudge been granted, the trial judge would not have been in aposition to exercise his discretion in ruling on the State'smotion to transfer jurisdiction.

The State contends the trial judge erred in denying itsmotion for substitution of judge because the trial judge did notmake a substantive ruling prior to the filing of the motion. Weagree.

Section 114-5(c) of the Procedure Code (725 ILCS 5/114-5(c) (West 2000)) provides, in pertinent part:

"(c) Within 10 days after a cause hasbeen placed on the trial call of a judge[,]the State may move the court in writing for asubstitution of that judge on the ground thatsuch judge is prejudiced against the State. Upon the filing of such a motion the courtshall proceed no further in the cause butshall transfer it to another judge not namedin the motion."

The State must bring its motion for automatic substitution notonly within the statutory time but also prior to judicial actionon the merits. People v. Flanagan, 201 Ill. App. 3d 1071, 1080,559 N.E.2d 1105, 1111 (1990). A litigant may not test judicialattitude on an issue and later assert prejudice when the judgefails to support the litigant. Flanagan, 201 Ill. App. 3d at1080, 559 N.E.2d at 1111.

Prior to the State's motion for substitution of judge,the trial judge held a hearing on the State's petition fortemporary detention and entered an order finding "immediate andurgent necessity that the minor be detained for the protection ofthe minor and the public." See 705 ILCS 405/5-501(2) (West2000). A hearing on a petition for temporary detention issomewhat comparable to a preliminary hearing conducted undersection 109-3 of the Procedure Code (725 ILCS 5/109-3 (West2000)). In re S.I., 234 Ill. App. 3d 707, 712, 600 N.E.2d 889,891 (1992). In both, the State bears the burden to show probablecause to believe (1) a crime was committed and (2) the defendant(or alleged juvenile delinquent) committed the crime. S.I., 234Ill. App. 3d at 712, 600 N.E.2d at 891. In People v. Agnew, 108Ill. App. 3d 79, 82, 438 N.E.2d 950, 952 (1982), we noted aprobable-cause finding in a preliminary hearing is not a per seruling of substance precluding an automatic substitution ofjudge.

The trial judge erred in denying the State's timelymotion to substitute judge because the trial judge had not made asubstantive ruling on the merits. At the detention hearing,Duffy testified about his investigation and A.N.'s confession. The GAL did not present any evidence and did not object to thedetention petition.

No other action of the trial judge could be characterized as a substantive ruling before the State filed its motion tosubstitute judge. The trial court appointed counsel for A.N. The trial court also allowed the State's motion to obtain asocial history and a psychiatric evaluation. A.N.'s counsel"strongly concurred" in that motion, and the trial court did notexpress any opinion about the merits of the case. These orderswere not substantive rulings.

Because the trial judge erred in denying the State'smotion for substitution of judge, any later action taken by thetrial judge is void. See Berlin, 268 Ill. App. 3d at 187, 643N.E.2d. at 279.

For the reasons stated, we reverse the trial court'sorder denying the State's motion to substitute judge, vacate the trial court's denial of the State's motion to transfer jurisdiction, and remand for proceedings not inconsistent with thisdisposition.

Reversed in part and vacated in part; cause remanded.

STEIGMANN, P.J. and McCULLOUGH, J., concur.