Criminal Law FLASHPOINTS May 2024

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon
815-732-1170 | E-mail Matthew R. Leisten

Appellate Court Holds That 72-Hour Hearing on Revocation Petitions Is Directory

In People v. Green, 2024 IL App (1st) 240211, the First District Appellate Court held that the 72-hour time frame for a petition to revoke pretrial release is directory instead of mandatory. The appellate court found that a defendant’s pretrial release rights were not violated when the revocation hearing was held four days after the state filed its petition to revoke pretrial release.

In Green, the defendant was charged with misdemeanor endangering the health or life of a child in March 2022 and was released on a recognizance bond. On January 11, 2024, the state charged the defendant with armed violence after police found a handgun, cocaine, and heroin on his person. 2024 IL App (1st) 240211 at ¶¶3 – 4.

The state filed a petition to revoke pretrial release the next day on Friday, January 12. A revocation hearing was scheduled but not held until Wednesday, January 17. On January 17, the trial court revoked the defendant’s pretrial release after finding that there was clear and convincing evidence that no conditions of release would prevent the defendant from being charged with another misdemeanor or felony. 2024 IL App (1st) 240211 at ¶¶5 – 6.

The defendant appealed and argued that he should be released from custody because his revocation hearing was not held within 72 hours of the state’s filing of a petition to revoke pretrial release under 725 ILCS 5/110-2(a). 2024 IL App (1st) 240211 at ¶¶10, 14.

The appellate court affirmed the revocation of the defendant’s pretrial release. 2024 IL App (1st) 240211 at ¶1. The appellate court noted that the state’s petition was filed on Friday, January 12, and that a hearing would have to be held no later than Monday, January 15. However, the court holiday of Martin Luther King Jr. Day fell on January 15. Although the hearing was scheduled for Tuesday, January 16, the judge who would preside over the revocation hearing was not at the courthouse and thus the hearing was held on Wednesday, January 17. 2024 IL App (1st) 240211 at ¶12.

The appellate court stated that the defendant did not provide a sufficient legal basis to support his argument that he should be released from custody because he did not offer any argument or authority for this position. 2024 IL App (1st) 240211 at ¶¶14 – 15.

The appellate court determined that the 72-hour rule was directory language instead of mandatory language because there was no language prohibiting further action or providing specific consequences if the hearing was held after 72 hours, and a mandatory 72-hour construction of the statute would not achieve its purpose of protecting victims and the community. 2024 IL App (1st) 240211 at ¶¶20 – 21.

Whether statutory language is directory or mandatory determines whether a failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural step relates. 2024 IL App (1st) 240211 at ¶17, citing People v. Robinson, 217 Ill.2d 43, 838 N.E.2d 930, 935, 298 Ill.Dec. 37 (2005).

Language that issues a procedural command to a government official is presumed to be directory. This presumption can be overcome, and the language will be read as mandatory, (1) when there is negative language that prohibits further action when there is noncompliance or (2) when the right that the provision was designed to protect would generally be injured under a directory reading. 2024 IL App (1st) 240211 at ¶18.

The appellate court noted that if the legislature had intended a mandatory reading of this section, then it could have included language that any detention order would be void if the hearing was held after 72 hours. 2024 IL App (1st) 240211 at ¶20.

The appellate court also noted that there will be situations in which it will be impossible to comply with the 72-hour hearing rule in front of the same judge, as in Green. The appellate court stated that “[a]ccordingly, the hearing occurred at the first possible opportunity — on Wednesday, January 17, 2024. This one-day delay does not thwart the legislative intent to hold a prompt hearing before the judge most familiar with the matter.” 2024 IL App (1st) 240211 at ¶22.

For more information about criminal law, see FEDERAL CRIMINAL PRACTICE (IICLE®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit

Leave your comment