                           No. 3--09--0902

Filed October 22, 2010-Correction
                              IN THE

                    APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2010

GREGORY A. WHITE,               )    Appeal from the Circuit Court
                                )    of the 14th Judicial Circuit
     Plaintiff-Appellant,       )    Rock Island County, Illinois
                                )
           v.                   )    No. 08--MR--118
                                )
LARRY PHILLIPS, Director of     )
Rushville Treatment and         )
Detention Facility,             )
                                )    Honorable Michael F. Meersman,
     Defendant-Appellee.        )    Judge, Presiding.


     JUSTICE SCHMIDT delivered the opinion of the court:


     Appellant, Gregory White, is a sexually violent person

and subject to treatment in a secure facility.         The

Department of Human Services transferred White to the

Department of Corrections to serve criminal sentences twice.

The Department of Corrections returned White to the

Department of Human Services at the completion of each

sentence

     White alleges that he is not lawfully subject to cus-
tody by the Department of Human Services because of these

transfers from the Department of Human Services to the

Department of Corrections.    He requested habeas corpus

relief from the circuit court.       The circuit court dismissed

his application on motion of defendant Larry Phillips,

Director of the Rushville Treatment and Detention Facility.

White appeals that dismissal.       We affirm.

                              FACTS

    White was convicted of aggravated criminal sexual

abuse.   The State petitioned to commit White under the

Sexually Violent Persons Commitment Act (the Act) (725 ILCS

207/1 et seq. (West 2008)).     The court found White to be a

sexually violent person (SVP) and ordered him into the

custody of the Department of Human Services until he is no

longer an SVP.

    White committed aggravated battery twice while in the

custody of the Department of Human Services.       Each time he

was found guilty in a circuit court proceeding and was

transferred to the Department of Corrections to serve his

sentence.


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    At the completion of each sentence, White was returned

to the Department of Human Services without a court order.

White claims that his release to the Department of

Corrections either conditionally released or fully

discharged him, terminating his civil commitment.     As such,

the Department of Human services could not regain custody of

White without a new court order finding him to be an SVP.

    White also alleged two violations of the United States

Constitution, a double jeopardy claim and a due process

claim.   White recognizes in his brief to this court that

these allegations cannot stand unless this court finds for

him on the first issue.

                             ANALYSIS

    A motion to dismiss challenges the legal sufficiency of

a complaint.     Beacham v. Walker, 231 Ill. 2d 51, 57, 896

N.E.2d 327, 331 (2008).     This court reviews de novo a

circuit court decision on a motion to dismiss.     Beacham, 231

Ill. 2d at 57.     All well-pleaded facts and reasonable

inferences from those facts are accepted as true and are

viewed in the light most favorable to the plaintiff.


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Beacham, 231 Ill. 2d at 58.

      Application for habeas corpus relief is statutory in

nature. 735 ILCS 5/10--101 et seq. (West 2008).    Habeas

corpus provides relief to those who are wrongfully

imprisoned or restrained. 735 ILCS 5/10--102 (West 2008).

But, relief under habeas corpus is limited in nature.

Beacham, 231 Ill. 2d at 58.   The supreme court has said

repeatedly that habeas corpus is available only to a

plaintiff that is restrained by the judgment of a court that

did not have subject matter or personal jurisdiction, unless

something has occurred after the court entered judgment that

entitles the plaintiff to release.   Beacham, 231 Ill. 2d at

58.   Habeas corpus does not provide relief from a judgment

that is merely voidable and does not suffer from

jurisdictional defects.   Beacham, 231 Ill. 2d at 58; People

v. Gosier, 205 Ill. 2d 198, 205, 792 N.E.2d 1266, 1269-70

(2001).

      White does not argue any defect exists with the court

order that declared him to be an SVP.   He asserts that when

the Department of Human Services transferred him to the


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Department of Corrections, it was an implied, tacit, or

actual finding by the Department of Human Services that

White was no longer an SVP.   Alternatively, he argues that

it was a conditional or full release that terminated his

civil commitment.

    The Act (725 ILCS 207/1 et seq. (West 2008)) allows the

State to seek civil commitment of someone who has been

convicted of a sexually violent offense.   725 ILCS 207/15

(West 2008).   After a proper petition is filed, the court

holds a probable cause hearing to determine whether probable

cause exists that the person named in the petition is a

sexually violent person.   725 ILCS 207/30 (West 2008).     The

person is taken into custody if the court finds probable

cause exists, otherwise the petition is dismissed.     725 ILCS

207/30 (West 2008).   After a finding that probable cause

exists, a trial is held to determine if the person is a

sexually violent person.   725 ILCS 207/35 (West 2008).     At

the conclusion of the trial, if it is determined that the

person named in the petition is an SVP, the court must issue

an order committing the person to the custody of the


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Department of Human Services "until such time as the person

is no longer a sexually violent person."     725 ILCS 207/40(a)

(West 2008).

    The Act provides only one way for an SVP to be

discharged from the custody of the Department of Human

Services: by court order.     725 ILCS 207/65 (West 2008).   A

hearing to request a discharge order can be obtained in two

ways.     First, the Secretary of the Department of Human

Services authorizes a person whom he believes is no longer a

sexually violent person to petition the court for discharge.

725 ILCS 207/65(a)(1) (West 2008).     Second, a sexually

violent person can apply for discharge at the time of

periodic reviews conducted by the Department of Human

Services.     725 ILCS 207/65(b)(1) (West 2008).   Upon a proper

petition, a hearing is held to determine whether the person

is still sexually violent.     A person is entitled to

discharge upon a finding that he is not a sexually violent

person.

    Discharge from the custody of the Department of Human

Services can be obtained in no other way.     The legislature


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has created a comprehensive system to protect the public

from sexually violent people.       That system states that a

discharge is obtained when a court or jury finds that an SVP

is no longer sexually violent.       This reading of the statute

is in keeping with the canon of construction, expression of

one thing is the exclusion of another.       People v. Roberts,

214 Ill. 2d 106, 117, 824 N.E.2d 250, 256 (2005).       The

legislature, by providing a clear method for release from

custody, denied all others.

    White has not attacked the original order that found

him to be a sexually violent person and placed him in the

custody of the Department of Human Services.       He alleges

that his transfer to the Department of Corrections

terminated his custody by the Department of Human Services.

Only a court order can discharge White from the custody of

the Department of Human Services.       White has not challenged

the original order and the only thing that can authorize his

release has not happened; habeas corpus relief is not

available.   Since White has pled no facts upon which he is

entitled to relief, we affirm the decision of the circuit


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court dismissing his application for habeas corpus.

    From a commonsense standpoint, the theory urged by

plaintiff is a dangerous one: to terminate a civil

commitment, one need only attack a Department employee or

fellow detainee.   We are not inclined to declare an open

season on employees and detainees of the Department of Human

Services.   See People v. Webb, 393 Ill. App. 3d 478, 913

N.E.2d 1074 (2009).

    This court need not reach the constitutional issues

raised by White in his brief.       White conceded that his

second and third issues cannot stand without a finding that

his commitment to the Department of Human Services has been

lawfully terminated.

                          CONCLUSION

    For the foregoing reasons, the judgment of the circuit

court of Rock Island County is affirmed.

    Affirmed.

    HOLDRIDGE, P.J., and O'BRIEN, J., concur.




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