THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WESLEY A. COAN, Defendant-Appellant, 316 Ill. App. 3d 14

JUSTICE RAPP delivered the opinion of the court: Defendant, Wesley A. Coan, was committed as a sexually dangerous person on July 1, 1998. Defendant appealed, and this court affirmed the trial court’s commitment order in People v. Coan, 311 Ill. App. 3d 296 (2000). On January 7, 1999, defendant filed an application for discharge or conditional release. On March 2, 1999, the State filed a motion for

summary judgment, which the trial court granted on April 1, 1999. Defendant timely appealed. On appeal, defendant contends that the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 1998)) violates his constitutional rights to due process and equal protection because it (1) does not permit the court to consider whether defendant may be treated in a less restrictive setting than the Department of Correetions; and (2) does not set a maximum period of commitment as is the case for those found not guilty by reason of insanity.

These exact issues were considered and rejected in defendant’s direct appeal, the opinion for which was issued subsequent to the briefing in this case. See Coan, 311 Ill. App. 3d 296. We will not revisit these issues. Defendant also contends that the trial court erred in granting

summary judgment in favor of the State because

summary judgment is improper when a defendant petitions for discharge or conditional release pursuant to the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 1996)). This argument was specifically rejected by the Appellate Court, Fourth District, in People v. Savage, 277 Ill. App. 3d 63 (1995), appeal denied, 166 Ill. 2d 551 (1996). However, we note that the Appellate Court, Third District, has recently held that

summary judgment proceedings are improper in sexually dangerous person proceedings. People v. Trainor, 312 Ill. App. 3d 860 (2000), appeal allowed, 189 Ill. 2d 678 (2000). We decline to follow Savage and elect to follow Trainor. Proceedings under the Act are civil, rather than criminal, in nature. 725 ILCS 205/3.01 (West 1998); People v. McVeay, 302 Ill. App. 3d 960, 964 (1999). However, because of the possible loss of liberty, certain protections available to criminal defendants are granted to persons under the Act. McVeay, 302 Ill. App. 3d at 964.

One of these protections is the right to demand a jury trial for hearings on applications showing recovery under the Act. 725 ILCS 205/5 (West 1998); People v. Capoldi, 37 Ill. 2d 11, 18 (1967). In Trainor, the court reasoned: “Here,

summary judgment is a civil remedy that has no place in sexually dangerous person proceedings because it deprives a defendant of his statutory method of regaining his liberty. Through such a motion, the State can seek to circumvent the defendant’s right to a jury trial ***. That was the result here when the defendant demanded a jury trial and the trial court dismissed his petition by

summary judgment without holding such a trial.” Trainor, 312 111. App. 3d at 862-63. The only statutory route to freedom from confinement is to establish defendant’s recovery under

section 9 of the Act (725 ILCS 205/9 (West 1998)). People v. Olmstead, 32 Ill. 2d 306, 314 (1965). It is our determination that the trial court should have impaneled a jury pursuant to defendant’s jury demand, to determine if defendant has recovered from the disability responsible for his original commitment. “To hold otherwise would be to permit the State to forever hold in confinement a defendant found to be sexually dangerous at the sole discretion of the officers of the State.” Olmstead, 32 Ill. 2d at 314. We therefore hold that

summary judgment is improper when a defendant files an application for discharge or conditional release under the Act. For the foregoing reasons, the judgment of the circuit court of De Kalb County is reversed, and the cause is remanded for further proceedings. Reversed and remanded. INGLIS, J., concurs.