author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL B. ALLEN, Defendant-Appellant.
    Third District
    No. 3—92—0434
    Opinion filed August 26, 1993.

      Thomas A. Lilien, of State Appellate Defender’s Office, of Elgin, for appellant.
    James Glasgow, State’s Attorney, of Joliet (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

Following a jury trial, defendant Darryl Allen was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2) and sentenced to 48 years in prison. On appeal, defendant contends that the trial court erred in refusing to instruct the jury on the lesser included offense of robbery. Defendant also argues that the report prepared prior to sentencing was inadequate and that his sentence was excessive. We affirm.

On the evening of October 26, 1990, an armed robbery occurred at the General Store, a gas station and convenience store at the intersection of Briggs Street and Interstate 80 in Will County, Illinois. Wilma Riesbeck testified that she was the owner of the General Store. For security purposes, Riesbeck had a video surveillance camera installed behind the counter in the store. The camera was operating on the night of the robbery.

Cheryl Smithson testified that she was a General Store employee and was working the 3 p.m. to midnight shift on October 26, 1990. At approximately 10 o’clock that evening, while Smithson was assisting another customer, a man whom Smithson identified as the defendant entered the store. He walked to the soft drink cooler at the back of the store, then turned around and left without making a purchase. A short time later, defendant reentered the store and walked to the front counter. Smithson went to the front counter to help defendant. As she got behind the counter, defendant pulled out a gun, leaned across the counter and showed it to Smithson. She was less than a foot away from defendant. Smithson testified that the gun was black, was made of metal, had a slide on the top and had a small opening at the end of the barrel the size of a bullet. She stated that the gun appeared to be real. Defendant then told Smithson to give him the money from the cash register. After she had given him the bills and coins, defendant told Smithson to get down on the floor. She got down behind the counter and defendant left the store. Smithson then pressed an alarm button to alert the police.

The State entered into evidence a video tape taken from the surveillance camera which showed the robbery in progress. Smithson identified the defendant as the robber on the video tape. The gun used in the robbery was never recovered.

Riesbeck returned to the store after the robbery and checked the cash register. A total of $225 in bills and coins had been taken. The jury found the defendant guilty of armed robbery.

On appeal, defendant first contends that the trial court erred in denying his request that the jury be instructed on the lesser included offense of robbery. Defendant argues that since the only eyewitness to the crime could not say with certainty that the gun used in the robbery was real, the jury could conclude that the robbery was not committed with a dangerous weapon.

This same argument was raised in People v. Arnold (1991), 218 Ill. App. 3d 647, 577 N.E.2d 1355. In Arnold, three robbery victims testified that they saw a dark-colored steel handgun at various times during the robbery. The court set out the well-established rule of law that instructions on a lesser included offense are not required in a case where the evidence rationally precludes a finding of the lesser included offense. (See People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.) The court held that because there was no evidence to question the authenticity of the gun, the trial court properly refused to instruct the jury on simple robbery. Arnold, 218 Ill. App. 3d at 652, 577 N.E.2d at 1360.

Similarly, here, the victim testified that the gun was black, made of metal, and looked real. She saw the gun from a- distance of less than one foot. There was no evidence presented to contradict the victim’s testimony or otherwise question the authenticity of the gun. We therefore find that the trial judge correctly viewed the evidence presented as rationally precluding the finding of the lesser charge of simple robbery. See also People v. Reynolds (1983), 116 Ill. App. 3d 328, 451 N.E.2d 1003 (lack of evidence contrary to witnesses’ testimony that defendant used a gun during robbery justified trial court’s refusal to give simple robbery instruction).

Defendant next contends that the presentence investigation report prepared prior to sentencing was inadequate. Defendant argues that the investigator should have contacted more sources to make the report more complete. Initially, we note that defendant failed to object to the alleged deficiencies in the report at the sentencing hearing. Defendant has therefore waived this argument. (People v. Madej (1985), 106 Ill. 2d 201, 478 N.E.2d 392.) Moreover, the record indicates that defendant refused to be interviewed or cooperate in any way with the investigator in the preparation of the presentence investigation report. In such cases a defendant will not be heard to argue on appeal that the report was inadequate. People v. Fortune (1992), 234 Ill. App. 3d 531, 600 N.E.2d 501.

Finally, defendant contends that the trial court abused its discretion in sentencing him to 48 years in prison. Armed robbery is a Class X felony which carries a sentence of 6 to 30 years in prison (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3)). Because of defendant’s prior convictions for armed robbery, he was eligible for an extended sentence of 30 to 60 years (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8— 2(a)(2)).

A reviewing court is not a sentencing court and may not substitute its judgment for that of the trial court merely because it would have imposed a different sentence. (People v. Cox (1980), 82 Ill. 2d 268, 413 N.E.2d 541.) The trial court is charged with the task of imposing a sentence which strikes the appropriate balance between the protection of society and the rehabilitation of the defendant (Cox, 82 Ill. 2d 268, 412 N.E.2d 541), and that determination will not be disturbed absent an abuse of discretion. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

The record reflects that the trial court properly weighed and considered both the mitigating and aggravating factors and determined that an extended sentence was necessary for the protection of the public. The evidence presented at the sentencing hearing established that defendant was convicted of 18 counts of armed robbery in 1983. Testimony was also presented regarding two other armed robberies committed by defendant in 1990, one of which was committed at the same store where the instant offense occurred. Moreover, the instant offense was committed while defendant was on parole. Under these circumstances, we find that the trial court did not abuse its discretion in sentencing defendant to 48 years in prison.

For the reasons stated above, the judgment and sentence of the circuit court is affirmed.

Affirmed.

McCUSKEY, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE BARRY JUSTICE BRESLIN,

license: Public Domain

text:
      In re MARRIAGE OF JOYCE GAIL WEBER, Petitioner-Appellee, and JON MICHAEL WEBER, Respondent-Appellant.
    Third District
    No. 3-92-0804
    Opinion filed August 5, 1993.

      BRESLIN, J., dissenting.
    White, Marsh, Anderson, Brusatte, Vickers & Deobler, of Ottawa (John E Vickers, of counsel), for appellant.
    Hoffman, Mueller, Creedon & Twohey, of Ottawa (George Mueller, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Jon Weber appeals from an order transferring custody of his four-year-old son to the custody of the boy’s mother, Joyce Wright, thereby modifying the agreed custody order that had been entered three years earlier at the time of the dissolution of the parties’ marriage.

The issue on appeal is whether there was clear and convincing evidence that a change had occurred in the circumstances of the child or of his custodian since the prior judgment was entered and, if so, whether the change of custody is necessary to serve the best interests of the child. We reverse the order of the circuit court.

Jon and Joyce were divorced in 1989. The record discloses several hearings on petitions for reciprocal orders of protection prior to the divorce with temporary custody being granted to Jon, who lived with his parents. The first day of the 1989 hearing on the issue of child custody and support included testimony that both Jon and Joyce were drug users, that Jon had pled guilty to the charge of battery against Joyce, and that Joyce had charges for DUI and possession of a hypodermic syringe pending and had a previous burglary conviction.

On the second day of the 1989 custody hearing, the parties presented a settlement agreement which the court agreed to enter after considerable discussion and testimony from both parties. The settlement agreement provided in part as follows:

“The parties agree that Counter Respondent Jon Michael Weber shall have legal custody of the minor child Jon Michael Weber. Counter Respondent and the minor child presently are residing with Counter Respondent’s parents and this agreement as to custody is based upon the representation that Counter Respondent and minor child intend to continue such living arrangements. Should Counter Respondent or the minor child cease to reside with Counter Respondent’s parents, the parties agree that this shall be considered a significant change in circumstances warranting a reconsideration of the issue of custody even if within 2 years of the date of judgement herein.”

In addition, the agreement provided for Joyce to have visitation from 9 a.m. Thursday until 7 p.m. Saturday of each week and for both parties to keep each other advised regarding events affecting the health and welfare of the child.

In April of 1992 Joyce filed a petition to modify the prior custody order, requesting that custody be awarded to her. The father and the minor child continued to reside with the paternal grandparents, as required in the court order. At the hearing on the petition, Joyce testified that she has successfully completed a drug and alcohol rehabilitation program, that she has not used drugs or alcohol to excess for two years, that she is employed at housecleaning, that she will marry Jim Bretag in October, that Jim has also successfully completed drug rehabilitation, that she has “turned her life around,” that she has never missed her scheduled visitation with her son Jon, that she has cared for him at other times as well, that her son Jon gets along well with his nine-year-old half-brother who lives with her, and that she has been treated successfully for cancer and for depression.

Joyce testified that Jon picked up their son at her house about 10 times in three years, with the grandparents picking him up the rest of the time, and that 4 of the 10 times, Jon had seemed to be “high.” A nephew of Joyce also testified as to recent drug use by Jon. Joyce’s fiance, Jim Bretag, testified that Jon had appeared to be “high” when he came to pick up his son one time, and when Jim asked Jon how he was doing, he responded, “Same old thing. Just work and party.”

The paternal grandmother testified that there had been no drug use in her home, but that she had smelled marijuana on Joyce one time. Joyce denied any marijuana use on that occasion. Jon denied using LSD or cocaine since the divorce. When asked whether he had smoked marijuana, he asserted his fifth amendment privilege against self-incrimination. The grandmother and Jon both testified as to Jon’s involvement with his son, that he plays with the boy, reads to him, gives him his bath at night, and pays for his food and health insurance.

A friend of Jon testified that he saw Joyce in a tavern in May of 1992 and that she had two or three beers and “had a buzz on.” He also said that he gave her a ride home. Joyce admitting having one beer in the tavern on her birthday but denied seeing or knowing the witness. She said he may have mistaken her sister Brenda for her since they resemble each other and her sister frequents that tavern.

Three days after the hearing on Joyce’s petition, the trial judge announced her ruling in open court. She stated that she was persuaded that at the time the original custody order was entered, neither parent was capable of providing the child a stable environment and that the supervision and interaction of the paternal grandparents was the key to the award of custody to the father. The judge found that there was some evidence of continued drug use by the father but that the minor child was not affected by it. The court further found that there has been a substantial change in the circumstances of the child in that the mother has rehabilitated herself and can now provide a stable environment for the child. The court also concluded that it was in the best interest of the child to be transferred to the custody of his mother with the father to have liberal visitation each weekend. This appeal followed.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 610(b); 750 ILCS 5/610 (West 1992)) provides that a prior custody judgment may be modified only if a change has occurred in the circumstances of the child or his custodian, if modification is necessary to serve the best interests of the child, and if proven by clear and convincing evidence.

This provision was interpreted in In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E.2d 1385, 1389, as follows:

“Section 610(b) reflects an underlying policy favoring the finality of child-custody judgments and making their modification more difficult. Its effect is to create a legislative presumption in favor of the present custodian, thereby promoting the stability and continuity of the child’s custodial and environmental relationship which is not to be overturned lightly.”

It has also been said that section 610(b) requires that the evidence show the original custodial parent to be unfit to retain custody or that a change of conditions directly related to the needs of the child requires a change of custody in the best interest of the child. (In re Marriage of Bass (1988), 176 Ill. App. 3d 249, 530 N.E.2d 717.) The party seeking modification of custody must prove his or her case by clear and convincing evidence, a higher level of certainty than a preponderance of evidence. In re Custody of Dykhuis (1985), 131 Ill. App. 3d 371, 475 N.E.2d 1107.

The record on appeal clearly establishes that the evidence before the circuit court did not show any change in the circumstances of the custodial parent. The father continues to live with his parents and continues full-time employment. Also, there was no evidence of any change in conditions directly related to the needs of the child. No events or conditions detrimental to the child’s health or welfare were disclosed. There was no evidence that the boy had needs that were not being met or that the home in which he had been living for three years was unsatisfactory in any way. In fact, Joyce testified that she knew her son was well cared for under the present arrangement. The only negative evidence was that the father may have continued to use drugs, but the trial court expressly found that the child was not adversely affected by any such drug use.

The only change in circumstances had occurred in the life of the noncustodial parent, and under section 610(b), custody cannot be changed on that basis alone. A mere recitation by the court that it is in the best interest of the child to award custody to the mother is not sufficient to satisfy the requirement of the Act that specific findings of fact must be made in support of a modification. (In re Marriage of Oliver (1987), 155 Ill. App. 3d 181, 507 N.E.2d 1298.) The circuit court stated that the change in the circumstances of the mother was a change in the circumstances of the child because now the child had a parent that was fit to care for him. Since there was no evidence to show that the child’s present environment was inadequate or harmful in any way, the court’s conclusion was contrary to the requirements of section 610(b).

Joyce’s position, by implication, seems to be that her right as a natural parent is superior to that of the paternal grandparents, whom she considers to be the actual custodians of her son. This court has previously indicated that the natural mother should not prevail where the child has been integrated into the home of its grandparents over a period of time by agreement of the parties and where the child’s best interest would not be served by a change of custody. See Barclay v. Barclay (1978), 66 Ill. App. 3d 1028, 384 N.E.2d 564.

Joyce relies upon In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 512 N.E.2d 52, where by agreement, custody of two daughters was awarded to the mother at the time of the divorce. When the father subsequently filed a petition to modify the custody, the trial court refused to consider evidence relating to the father’s circumstances either at the time of the divorce or subsequently, ruling that the only relevant evidence was that relating to any changes in the condition of the custodial parent or the child. The reviewing court held that ruling to be erroneous under the special circumstances of that case where evidence was introduced for the first time showing that the mother was unfit at the time of the prior judgment. That being so, the evidence concerning the noncustodial parent became relevant, and the cause was remanded for a new hearing.

Joyce contends that she has shown that both she and Jon were unfit at the time of the original order, that the trial court intended that the grandparents have charge of the child, that Jon’s conduct has not changed, that his excessive drug use continues to render him an unfit parent, that her condition has greatly improved, and that she can now provide a stable home for her son. However, the trial court here did not find Jon to be unfit.

Two things distinguish this case from Gibbons. Here it is clear from the record that the trial judge who entered the original custody order was fully appraised of the conduct of both parties. He had heard testimony concerning drinking, drug use, and criminal activity on the part of both parents, and thus approved the custody agreement which involved the paternal grandparents’ presence as essential to the child’s well-being. Such was not the case in Gibbons, where the trial court first heard evidence of possible parental unfitness at the hearing on the petition to modify.

Secondly, the issue in Gibbons concerned the trial court’s exclusion of evidence of the noncustodian’s condition. Here, the court heard extensive evidence concerning Joyce’s condition as well as that of Jon and of the son. The issue here, therefore, is whether the evidence was clear and convincing that a change of circumstance as to either Jon or the boy had occurred. As we have previously indicated, the trial court’s conclusion was contrary to the manifest weight of the evidence, and the petition to modify should have been denied.

For the reasons stated, we reverse the order of the circuit court of La Salle County and direct that an order denying the petition to modify custody be entered.

Reversed with directions.

STOUDER, J., concurs.

JUSTICE BRESLIN,

dissenting:

I respectfully dissent.

My colleagues base their decision on the general rule that in order to modify a custody order a substantial change is needed in the circumstances of the child or the custodial parent. In the traditional case, this is undoubtedly the rule, but the case before us is not the traditional case.

In the case at bar, the evidence clearly indicates that Jon was not fit at the time of the original custody decision. He had a history of drug abuse, run-ins with local law enforcement, and physical violence toward Joyce within earshot of the child. The agreed custody order itself protected against Jon’s unfitness by requiring that Jon would continue to live with his parents. If Jon moved from his parents’ home, that move would constitute a substantial change in circumstances and would warrant a reconsideration of the custody issue. Implicit in these provisions is a recognition of Jon’s unfitness to care for the child on his own. Further evidence reflected little interaction between Jon and his son, with Jon only picking the child up from visitation with Joyce approximately 10 times in three years and Jon’s mother caring for the child primarily during the day and putting the child to bed every night.

Under the circumstances, I believe In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 512 N.E.2d 52, is clearly applicable. In Gibbons the noncustodial parent sought to obtain custody by introducing evidence of the custodial parent’s unfitness at the time of the original custody determination and the noncustodial parent’s fitness at the time of the sought-after modification. The court ruled, in part:

“If the evidence indicates the custodial parent was fit and acceptable at the time of the prior hearing, then modification must rest on subsequent change of circumstances of the child or of the child’s custodian. However, if the evidence indicates a lack of fitness at the time of the prior agreed judgment, then that factor should be considered in determining the propriety of a modification under the provisions of section 610 ***.” (In re Marriage of Gibbons (1987), 158 Ill. App. 3d 998, 1003, 512 N.E.2d 52, 55.)

According to Gibbons, then, because the evidence indicates a lack of fitness on Jon’s part at the time of the prior agreed judgment, it was appropriate for the trial court to consider Joyce’s change in circumstances.

My colleagues distinguish Gibbons because the evidence concerning the unfitness of the mother in that case did not come to light until the time the father moved to change custody. I find this to be a distinction without a difference. Surely it would not be suggested that we provide relief to parties who allow a court to make a decision without fully apprising the court of the facts but deny relief to parties who bring to the court’s attention all relevant facts.

My colleagues further distinguish Gibbons on the grounds that in Gibbons the issue was whether evidence regarding the noncustodial parent’s changed circumstances should be allowed. In the case at bar, the trial court did allow such evidence. However, this case represents the next logical step proceeding from the Gibbons decision. Now that the evidence has been allowed, the issue is whether it can be the basis for a change of custody.

In re Ashley K. (1991), 212 Ill. App. 3d 849, 571 N.E.2d 905, requires that the only consideration in determining custody of a child is the best interests of the child. In the case before the trial court the choice was between the mother, who had overcome drug and alcohol dependency, exercised visitation without fail, demonstrated good parenting for an older child and established a stable relationship with a man she was engaged to marry, and the father, who was still caught up in the “vicious circle” of “working and partying” but whose parents were providing stable care for the child.

I believe this is a close case. The trial court was called upon to choose between continuity of care and care by the child’s natural parent. The court exercised its discretion in reliance on Gibbons in favor of the natural parent. Because I find no evidence that the trial court abused its discretion, I would affirm its decision.


author: JUSTICE GEIGER

text:
    FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, Plaintiff-Appellee, v. WEST SUBURBAN BANK, as Trustee, et al., Defendants-Appellants.
    Second District
    No. 2—92—1247
    Opinion filed August 13, 1993.
    Rehearing denied September 21, 1993.
    Barclay & Damisch, Ltd., of Chicago (John W. Damisch, of counsel), for appellants.
    Scott M. Day, of Helm & Day, of Naperville (David W. Krula, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendants appeal from a preliminary injunction prohibiting the development of their farmland into a parking lot. The injunction was granted on behalf of the plaintiff, the Forest Preserve District of Du Page County, which previously had filed a condemnation action to obtain the property. The defendants argue on appeal that (1) the injunction constitutes an unconstitutional judicial taking; (2) the injunction constitutes an equitable prejudgment attachment of property; (3) the plaintiff failed to prove the requisite elements necessary for injunctive action; (4) the trial judge abused his discretion in granting the injunction; (5) the injunction is unenforceable for vagueness; and (6) the injunction does not preserve the status quo.

On January 15, 1988, the plaintiff filed a condemnation action for the subject property, which was zoned industrial but which was being utilized as farmland. During May 1991, the defendants obtained a permit from the County of Du Page to develop 14 acres of the land into a parking lot. They intended to scrape up the topsoil, hauling it off the site, bring in approximately 45,000 cubic yards of clay from off-site properties, compact the clay, and place a granular surface over the clay. In October 1991, the defendants commenced development by scraping the topsoil off the permitted area and bringing some 5,000 cubic yards of clay onto the property. Allegedly, the plaintiff observed the activity on the property and obtained a temporary restraining order, which remained in effect by agreement until the commencement of the hearing of this matter on September 9, 1991. At that time, the defendants refused to consent to any further extension of the temporary restraining order. From the date of the condemnation filing until September 9, the parties were engaged in negotiations concerning the just compensation to be paid to the defendants for their land.

In the plaintiff’s amended verified motion for a preliminary injunction, it alleged in part (1) that a condemnation lawsuit was pending between the parties; (2) that the purpose of the condemnation was to preserve the flora, fauna, and natural forests on the subject property; (3) that pursuant to the law of eminent domain of Illinois, the value of the property in question would be fixed as of January 15, 1988, the date the condemnation action was filed; (4) that the plaintiff has the right to have the property maintained as it existed on January 15, 1988, or as nearly status quo as possible; and (5) that the defendants’ development was irrevocably altering the naturally occurring top soil, vegetation, topography, and drainage patterns.

At the hearing, there was testimony that the projected parking lot was estimated to cost the defendants $4,000 to $5,000. However, the cost for the plaintiff to correct the work already completed by the defendants was estimated to be approximately $240,000. If the project was completed, the cost to correct or return the parking lot into its preconstruction state would be $460,000. There was also testimony indicating that the harm to the soil, flora, fauna, and water characteristics of the land was irreparable.

In a September 18, 1992, order, following a hearing, the court granted the plaintiff’s motion for a preliminary injunction. In that order, the court made the following findings. First, there was a likelihood of success in the outcome of the case for the plaintiff. The court noted that the plaintiff’s right to obtain the property was undisputed, and that only the issue of the fair-market value remained to be decided. Second, the damage sustained by the defendants’ development was irreversible, and the cost of restoration would exceed the cost of the original purchase price of the land. Third, the defendants’ damage by the proposed injunction is less than the damage caused by allowing the parking lot to be built. The court lastly found that the plaintiff had no adequate remedy at law.

The court ordered the defendants “enjoined from any and all excavation, drainage, filling, dumping, compacting, construction or any other activity that damages or alters the soils, vegetation or topography on the subject property until further order of the court.” The order, however, made exceptions to allow (1) farming and agricultural activities, as long as no trees were removed; (2) the performance of ordinary maintenance; and (3) erection of a soil erosion fence. The order additionally waived the necessity of a bond.

We first address the defendants’ argument that the preliminary injunction constituted an illegal taking in violation of the United States and Illinois Constitutions. The plaintiff has done no more than to make the bare allegation that the issue of a judicial taking “is not ripe,” with no citational support and no substantive response to the defendants’ claim.

It has long been held that the right to take private property for public use is an attribute of sovereignty that is inherent-in the State. (St. Louis Connecting R.R. Co. v. H.F. Blumberg (1927), 325 Ill. 387, 392.) However, the Illinois Constitution prohibits a taking of property for public use without just compensation. (Ill. Const. 1970, art. I, §15.) A “taking” in this context has been defined as an actual physical invasion of the property (La Salle National Bank & Trust Co. v. City of Chicago (1984), 128 Ill. App. 3d 656, 667), or a radical curtailment of the use of an owner’s property or ability to derive income from the property. Towne v. Town of Libertyville (1989), 190 Ill. App. 3d 563, 568, citing Kirby Forest Industries, Inc. v. United States (1984), 467 U.S. 1, 14, 81 L. Ed. 2d 1, 13, 104 S. Ct. 2187, 2196.

The purpose of a condemnation proceeding is to satisfy the constitutional and statutory requirements that property not be taken without due process of the law. (Illinois Cities Water Co. v. City of Mt. Vernon (1957), 11 Ill. 2d 547, 551.) This right of eminent domain, codified in the Code of Civil Procedure, grants the authority by which the State and its agencies may obtain private property for public use. (See Ill. Rev. Stat. 1991, ch. 110, par. 7 — 101 et seq.) However, the right of eminent domain can only be exercised where such grant is specifically conferred by legislative enactment, and then only in the manner and by the agency so empowered. Forest Preserve District v. City of Chicago (1987), 159 Ill. App. 3d 859, 861.

The legislature, recognizing that the element of time is often an extremely important factor in eminent domain cases, and because many cases take a year or more before a final determination of compensation is made, enacted the “quick taking” provisions to expedite the taking. (Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, 776.) The purpose of a “quick-take” proceeding is to place possession and title in the State prior to the determination of just compensation, while protecting the interests of the landowner. (Department of Public Works, 51 Ill. App. 3d at 776.) In the absence of a “quick-take” proceeding, the title to the condemned property does not vest in the condemnor, and no rights of property are transferred until the conclusion of the eminent domain proceedings, including payment by the State to the landowner. See Ill. Rev. Stat. 1991, ch. 110, par. 7 — 103; see also City of Crystal Lake v. La Salle National Bank (1984), 121 Ill. App. 3d 346, 350.

Here, the plaintiff has not exercised or attempted to exercise a “quick-take.” (See Ill. Rev. Stat. 1991, ch. 110, par. 7 — 103.) Rather, it attempted to obtain control over the defendants’ land through the use of a judicial remedy, in a manner exceeding the authority granted to it by the legislature. (See Ill. Rev. Stat. 1991, ch. 110, par. 7 — 101; see also Forest Preserve District v. City of Chicago, 159 Ill. App. 3d at 861.) We therefore find that the injunction here constitutes an unconstitutional taking without just compensation under the Illinois Constitution (see Ill. Const. 1970, art. I, §15; Libertyville, 190 Ill. App. 3d at 568), and we therefore reverse the order of the court granting the injunction.

While we note that the Appellate Court, First District, case of Forest Preserve District v. Mount Greenwood Bank Land Trust 5— 0899 (1991), 219 Ill. App. 3d 524, contains facts which are nearly identical, it is not dispositive as to the case at bar. As noted by the defendants, the Mount Greenwood court did not address the constitutional issue of a “taking” with which we are faced here. To the extent that Mount Greenwood is in conflict, we reject the holding in that decision.

For the above reasons, we reverse the injunctive order of the court of Du Page County.

Reversed.

DOYLE and QUETSCH, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CAROLINA MAURICIO, Defendant-Appellee.
    Second District
    No. 2—91—1044
    Opinion filed September 2, 1993.
    David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      Fred M. Morelli, Jr., of Law Offices of Morelli & Cook, of Aurora, and Vincent C. Argento and Jesse V. Barrientes, both of Law Offices of Vincent C. Argento, of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

This appeal concerns whether double jeopardy arises in the prosecution of a defendant for driving while under the influence of alcohol, after that defendant had admitted in a juvenile proceeding to the unlawful consumption of liquor by a minor. We reverse and remand.

Defendant, Carolina Mauricio, a minor, was arrested on November 18, 1990. The State charged her with the following traffic offenses: driving while under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95½, pars. 11 — 501(a)(1), (a)(2) (now codified, as amended, at 625 ILCS 5/11 — 501(a)(1), (a)(2) (West 1992))), driving without a valid driver’s license (Ill. Rev. Stat. 1989, ch. 95½, par. 6 — 101(b) (now 625 ILCS 5/6 — 101(b) (West 1992))), and improper lane usage (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 709 (now 625 ILCS 5/11-709 (West 1992))).

The State also charged defendant with the following nontraffic offenses: aggravated battery (Ill. Rev. Stat. 1989, ch. 38, par. 12— 4(b)(6) (now codified, as amended, at 720 ILCS 5/12 — 4(b)(6) (West 1992))), resisting a peace officer (Ill. Rev. Stat. 1989, ch. 38, par. 31 — 1 (now 720 ILCS 5/31 — 1 (West 1992))), violation of curfew (Ill. Rev. Stat. 1989, ch. 23, par. 2371(a) (now 720 ILCS 555/1(a) (West 1992))), and consumption of alcohol by a minor (Ill. Rev. Stat. 1989, ch. 43, par. 134a (now 235 ILCS 5/6 — 20 (West 1992))).

Defendant successfully petitioned to transfer the nontraffic charges to juvenile court. In juvenile court defendant admitted to resisting a peace officer and consumption of alcohol by a minor. In exchange, the State dropped the aggravated battery and violation of curfew charges. The juvenile court continued the cause under supervision. After defendant successfully completed her term of supervision, the juvenile court dismissed the State’s petition.

Defendant filed two motions to dismiss the traffic charges that had remained in the criminal court. In the first motion, she alleged that the mandatory joinder provisions of sections 3 — 3 and 3 — 4(b)(1) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, pars. 3-3, 3-4(b)(1) (now 720 ILCS 5/3-3, 3-4(b)(1) (West 1992))) required the State to have joined those charges with the nontraffic charges that were the subject of the juvenile court petition. The trial court denied that motion to dismiss.

In the second motion to dismiss, defendant argued that double jeopardy barred the prosecution of the DUI charge because defendant had already admitted in juvenile court to the charge of consumption of alcohol by a minor. The trial court, relying on Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, granted defendant’s second motion to dismiss. In a letter accompanying the order granting the motion, the trial court reasoned that, in order to establish an essential element of DUI, the State would' need to prove the same conduct that gave rise to the charge of the unlawful consumption of liquor by a minor. Because defendant had already been put in jeopardy for the consumption of alcohol by a minor, the double jeopardy clause barred the DUI prosecution. The State timely appealed.

On appeal, the State first argues that defendant was not put in jeopardy during the juvenile proceeding because the juvenile court dismissed the State’s petition alleging the unlawful consumption of liquor by a minor before it entered any order equivalent to an adjudication of defendant’s guilt or innocence. The State further argues that, even if jeopardy attached to the juvenile proceeding, the trial court erred in determining that the prosecution of a defendant for DUI, after that defendant had already been put in jeopardy for the unlawful consumption of alcohol by a minor, constituted double jeopardy.

We first address the State’s second argument. The fifth amendment provides, in part, that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” (U.S. Const., amend. V.) The double jeopardy clause protects a defendant from: (1) a second prosecution after acquittal; (2) a second prosecution after conviction; and (3) multiple punishments for the same offense. People v. Stefan (1992), 146 Ill. 2d 324, 333.

The Supreme Court has long held that the State cannot prosecute a defendant in successive prosecutions for the same criminal act under different statutes unless each statute “requires proof of an additional fact which the other does not.” (Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182.) The Blockburger test focuses on the statutory elements of each offense. (People v. Hoskinson (1990), 201 Ill. App. 3d 411, 412.) Blockburger prohibits a second prosecution for the same criminal act if one offense has identical statutory elements or is a lesser-included offense of the other. (People v. Astorga (1993), 245 Ill. App. 3d 124, 127.) For example, the State was precluded from prosecuting a defendant for auto theft after the State had already prosecuted that defendant for joyriding, where joyriding was a lesser-included offense of auto theft. Brown v. Ohio (1977), 432 U.S. 161, 166-67, 53 L. Ed. 2d 187, 195, 97 S. Ct. 2221, 2226.

In Harris v. Oklahoma (1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912, defendant was convicted of felony murder for participating in an armed robbery in which the victim was killed. In a per curiam opinion, the Court held that a subsequent prosecution of defendant for the same armed robbery would constitute double jeopardy. (Harris, 433 U.S. at 682, 53 L. Ed. 2d at 1056, 97 S. Ct. at 2913.) Although robbery was not necessarily an element of felony murder because “other felonies could underlie a felony-murder prosecution,” robbery was a “species of lesser-included offense” of felony murder. Illinois v. Vitale (1980), 447 U.S. 410, 420, 65 L. Ed. 2d 228, 238, 100 S. Ct. 2260, 2267, interpreting Harris, 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912.

In Grady v. Corbin (1990), 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084, the Court determined that “ ‘[t]he Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense.’ ” (Grady, 495 U.S. at 519, 109 L. Ed. 2d at 563, 110 S. Ct. at 2092, quoting Brown v. Ohio (1977), 432 U.S. 161, 166-67 n.6, 53 L. Ed. 2d 187, 195 n.6, 97 S. Ct. 2221, 2226 n.6.) According to the Court, “a technical comparison of the elements of the two offenses as required by Block-burger does not protect defendants sufficiently from the burdens of multiple trials.” (Grady, 495 U.S. at 520, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.) “[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” (Emphasis added.) Grady, 495 U.S. at 521, 109 L. Ed. 2d at 564, 110 S. Ct. at 2093.

In Grady, defendant was the driver of a car that was involved in a fatal accident. On the night of the accident, defendant was served with two traffic citations charging him with DUI and failing to keep to the right of the median. The assistant District Attorney who represented the State during these proceedings was unaware that the accident had resulted in a fatality. Defendant pleaded guilty to those charges, and the trial court sentenced him to a fine. Subsequently, defendant was indicted on various homicide and assault charges arising from the same accident. The State alleged, in part, that defendant had caused the victim’s death because he was driving while intoxicated and because he failed to keep to the right of the median. (Grady, 495 U.S. at 511-14, 109 L. Ed. 2d at 557-59, 110 S. Ct. at 2087-89.) The Court determined that the double jeopardy clause barred the homicide and assault prosecutions because, in order to prove up those charges, the. State intended to prove the entirety of the conduct for which defendant had already been convicted when defendant was convicted of DUI and failing to keep to the right of the median. Grady, 495 U.S. at 523, 109 L. Ed. 2d at 565-66, 110 S. Ct. at 2094.

Since the trial court entered its order dismissing the cause, however, the Supreme Court has decided United States v. Dixon (1993), 509 U.S_,125 L. Ed. 2d 556, 113 S. Ct. 2849. Unfortunately for defendant, Dixon overruled Grady and held that the Blockburger test, as interpreted by Harris, Brown, and Vitale, governs what constitutes the same offense for double jeopardy purposes. (Dixon, 509 U.S. at_, 125 L. Ed. 2d at 572-73, 113 S. Ct. at 2859-60.) Under Dixon, the sole guide to evaluating whether offenses are the same for the purposes of double jeopardy is the statutory definition of each offense. Dixon eliminates any inquiry into the conduct giving rise to the offenses.

Dixon was a consolidated case involving two defendants who had first been convicted of criminal contempt for actions which in themselves constituted criminal acts. The State then attempted to prosecute both defendants for the underlying criminal conduct. Defendant Dixon was convicted of violating a court order prohibiting him from committing “any criminal offense.” The offense that Dixon committed was the possession of cocaine with the intent to distribute. A plurality of the Court held that the subsequent prosecution of Dixon for the actual cocaine offense constituted double jeopardy under Blockburger because, like the robbery offense in Harris, “Dixon’s drug offense did not include any element not contained in his previous contempt offense.” Dixon, 509 U.S. at_, 125 L. Ed. 2d at 570, 113 S. Ct. at 2858.

Defendant Foster was subject to a civil protection order (CPO) which prohibited him from assaulting or in any manner threatening his estranged wife. In order to prove that defendant was in contempt for violating this CPO, the prosecution was required to prove (1) that he willfully violated the CPO and (2) that he assaulted or threatened his wife. (Dixon, 509 U.S. at_, 125 L. Ed. 2d at 565-66, 113 S. Ct. at 2854.) In the first prosecution, defendant was found guilty of violating the CPO by physically assaulting his wife; he was acquitted in this prosecution of violating the CPO by threatening his wife. A plurality of the Court concluded that Foster’s subsequent prosecution for assault, based on the same assault that was the subject of his contempt conviction, constituted double jeopardy under Blockburger. Dixon, 509 U.S. at_, 125 L. Ed. 2d at 570, 113 S. Ct. at 2858.

The Court determined, however, that a subsequent prosecution for the assault of his wife with the intent to kill did not constitute double jeopardy under Blockburger, nor did a subsequent prosecution for threatening to kidnap or injure her, even though those charges were based on the same acts of assault for which defendant had previously been put in jeopardy in the contempt proceeding. Each offense in the original and subsequent prosecution required a separate element. (Dixon, 509 U.S. at_, 125 L. Ed. 2d at 572, 113 S. Ct. at 2859.) Assault with intent to kill required intent, which violation of the CPO did not. At the same time, violation of the CPO required the existence and willful violation of a CPO, which assault with intent to kill did not. Similarly, threatening to kidnap or injure any person required a specific type of threat, while violation of the CPO required only “any type of threat.” At the same time, threatening to kidnap or injure his wife did not require a willful violation of the CPO. Dixon, 509 U.S. at_, 125 L. Ed. 2d at 571, 113 S. Ct. at 2858-59.

The Court conceded that the subsequent prosecutions for assault with intent to kill and threatening to kidnap or injure defendant’s wife would constitute double jeopardy under Grady because they would require proof of the same conduct as the contempt prosecution required. (Dixon, 509 U.S. at_, 125 L. Ed. 2d at 572-73, 113 S. Ct. at 2859-60.) The Court concluded, however, that Grady was a “continuing source of confusion” and that adhering to the Grady analysis would “only add chaos to [its] double jeopardy jurisprudence.” (Dixon, 509 U.S. at_, 125 L. Ed. 2d at 577-78, 113 S. Ct. at 2863-64.) Blockburger would provide the only analysis.

Based on the foregoing analysis, we conclude that, under Dixon, the prosecution of defendant for DUI after her earlier admission to the unlawful consumption of liquor by a minor would not constitute double jeopardy. Although both offenses require the consumption of alcohol, each offense requires an element that the other does not. DUI requires the consumption of alcohol to the point of intoxication and the driving of a car, which the unlawful consumption of liquor by a minor does not. The unlawful consumption of liquor by a minor requires that defendant be a minor, which DUI does not. Therefore, DUI and the unlawful consumption of liquor by a minor are not the same offense for purposes of determining double jeopardy.

Because we have concluded that the unlawful consumption of liquor by a minor and DUI are not the same offense for the purposes of double jeopardy, we need not determine whether defendant was put in jeopardy by the juvenile proceeding.

It appears that the trial court dismissed the driving without a license and improper lane usage charges along with the DUI charge, although the trial court only discussed the DUI charge and although defendant did not argue for the dismissal of the driving without a license and improper lane usage charges. It is not clear whether the trial court dismissed those charges inadvertently. Nonetheless, we conclude that the principles of double jeopardy do not bar the prosecution for driving without a license or improper lane usage. Neither of those charges shares any elements with any offenses for which defendant has arguably already been put in jeopardy.

Because we can affirm the trial court on any basis in the record, even if the trial court’s reasoning was faulty (People v. Thompkins (1988), 121 Ill. 2d 401, 428), we next address whether the mandatory joinder provisions of sections 3 — 3 and 3 — 4(b)(1) of the Criminal Code require that the State’s case be dismissed. (Ill. Rev. Stat. 1989, ch. 38, pars. 3 — 3, 3 — 4(b)(1) (now 720 ILCS 5/3 — 3, 3 — 4(b)(1) (West 1992)).) Section 3 — 3 provides as follows:

“(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.
(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.” (Ill. Rev. Stat. 1989, ch. 38, par. 3 — 3 (now 720 ILCS 5/3 — 3 (West 1992)).)

Section 3 — 4(b)(1) provides that a prosecution is barred if the charge should have been brought in a former prosecution under section 3— 3. Ill. Rev. Stat. 1989, ch. 38, par. 3 — 4(b)(1) (now 720 ILCS 5/3— 4(b)(1) (West 1992)).

The statutory language of section 3 — 3 would seem to require the State to have brought all of the charges against defendant in one proceeding. However, our courts have held that sections 3 — 3 and 3 — 4(b)(1) do not apply to offenses that have been charged in a uniform traffic citation, as were the offenses at issue here. (People v. Jackson (1987), 118 Ill. 2d 179, 192, overruled on other grounds by People v. Stefan (1992), 146 Ill. 2d 324, 336-37; People v. Hoskinson (1990), 201 Ill. App. 3d 411, 414; People v. Helt (1988), 175 Ill. App. 3d 332, 334-35.) People v. Crowe (1992), 232 Ill. App. 3d 955, explained the rationale for this rule:

“The Jackson court noted that section 3 — 3 of the Code had been enacted prior to the establishment in this State of a unified court system with the circuit court as the sole court of original jurisdiction in each county. The court further explained that section 3 — 3 of the Code refers to prosecutions in the same court and the General Assembly, at time of enactment, would not have envisioned a citation where informal traffic complaints would be filed in a court having felony jurisdiction.” Crowe, 232 Ill. App. 3d at 960, citing Jackson, 118 Ill. 2d at 193.

Therefore, the trial court correctly decided that the compulsory joinder provisions of sections 3 — 3 and 3 — 4(b)(1) do not require that the charges of DUI, improper lane usage, or driving without a license be dismissed.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARMANDO PEREZ, JR., et al., Defendants-Appellants.
    Second District
    Nos. 2—92—0002, 2—92—0003 cons.
    Opinion filed September 7, 1993.
    G. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Elgin, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton, Brian L. Buzard, of Mt. Morris, and Teresa Berge, of Ottawa (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendants, Armando Perez and Norman Campbell, were found guilty of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18 — 2(a) (now 720 ILCS 5/18 — 2(a) (West 1992))) and aggravated battery (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 4(b)(1) (now codified, as amended, at 720 ILCS 5/12 — 4(b)(1) (West 1992))). The sole issue raised on appeal is whether the trial court erred in denying defendants’ motion to quash arrest and suppress evidence, finding that the police personnel investigating this case had a reasonable and articulable basis for executing a stop of defendants’ vehicle.

At the suppression hearing, Brian L. De Young, a police officer for the Village of Burr Ridge, testified that at approximately 12:35 a.m. on May 31, 1991, he was parked in his squad car at the Burr Ridge police station when he received a dispatch call of an armed robbery in progress at the Best Western Hotel. De Young stated that the Burr Ridge station is located on County Line Road approximately 200 yards south of the intersection of Frontage Road and County Line Road. The Best Western Hotel was located on Frontage Road about one-fourth mile, or two blocks, west of that same intersection. De Young testified that two office buildings and a funeral home were also located in that area, but the hotel was the only business open at that time of night.

As he was leaving the station, De Young spotted a Toyota/Nissan-type vehicle stopped at the intersection of Frontage Road and County Line Road. This vehicle had come from the direction of the Best Western Hotel. The vehicle turned from eastbound Frontage Road onto northbound County Line Road. De Young lost sight of the vehicle as it travelled north. This vehicle was the only one De Young saw on the road as he drove to the hotel. DeYoung testified that an entrance ramp to southbound 1-55 is located on County Line Road just to the north of the Frontage Road intersection.

De Young proceeded on to the Best Western Hotel, arriving within a minute or two after he received the initial dispatch. De Young did not see anyone inside the office through the front windows. He was then told by the dispatcher that she had the victims on the telephone and the perpetrators had just left.

De Young responded by turning his vehicle around and proceeding back to County Line Road. He informed dispatch of the vehicle he had seen earlier, describing it as a Toyota or Nissan-type vehicle, possibly gray in color, believed headed northbound on County Line Road to southbound 1-55. De Young testified that the vehicle could not have headed northbound on 1-55 because that exit had been blocked. De Young proceeded northbound on County Line Road in an attempt to locate the vehicle in case it had not gotten onto southbound 1-55. While he drove north on County Line Road to Plainfield Road, De Young encountered only one other vehicle.

The dispatcher obtained and radioed a general description of the robbery suspects: one male black and one male Hispanic. At approximately 12:34 a.m. on May 31, 1991, Patty Pasakamis, police officer for the City of Darien, received a dispatch concerning the robbery in progress in Burr Ridge. She knew that southbound 1-55 was easily accessible from the hotel, and she parked along the shoulder of 1-55 so she could monitor passing traffic. The location she chose was five to seven miles from the County Line Road entrance to 1-55 and was well lit by artificial lighting. She was radioed the description of the vehicle seen leaving the area and the general description of the suspects, and she watched for a vehicle and suspects that matched that description.

Approximately 10 minutes after she had taken up her position, she spotted a Nissan with a male black driver and a male Hispanic passenger. Pasakarnis proceeded after the vehicle. Pasakarnis testified that the color of defendants’ Nissan was actually brown instead of gray, but she noted that “due to the night time and the glare from the lights, you can’t really tell the color, unless it is say a bright red or yellow, until you get directly up to it.” She also testified that during the period of time she was parked on 1-55 one car passed her position every 10 to 15 seconds. Pasakarnis stated that she had observed a possible total of 30 to 50 cars before seeing defendants’ car.

Pasakamis followed the vehicle southbound on 1-55 toward northbound 1-355, and then onto northbound 1-355. During this time she pulled up next to the suspect vehicle and verified that the occupants of the vehicle matched the general description she had received. Pasakarnis then backed off and activated her squad’s Mars lights and spotlight in an attempt to stop the suspect vehicle. As she did this, she observed the passenger reach over and make a lot of movements towards the backseat of the car. Defendants disputed this observation during their testimony. The vehicle finally pulled over on 1-355 just past Broughton Road. Guns and money were eventually discovered under the backseat of the vehicle, and De Young identified the vehicle as the one he had seen leaving the area of the hotel.

The trial court noted in its findings of fact that an armed robbery occurred at the Best Western Hotel, and within one minute the police arrived. At the time the officer approached the hotel, it was very late and there was little traffic. Officer De Young made a note of the only vehicle he saw in the area and that its direction of travel would take it either southbound on 1-55 or farther north on County Line Road. A very generic description of the robbery suspects was sent out by the dispatch as well as a description of the vehicle. A few minutes later, Officer Pasakamis observed a similar sedan whose occupants matched the general description of the suspects. The court concluded that at that point there were articulable facts which, taken together with reasonable inferences, justified an investigatory stop of defendants’ vehicle. The trial court accordingly denied defendants’ motions to quash arrest and suppress the evidence. Defendants were subsequently found guilty of the charges at a bench trial.

On appeal defendants challenge the trial court’s ruling that there was a reasonable, articulable basis for stopping defendants’ vehicle. Defendants assert that the stop was based merely on “a lucky guess” and was not the product of reasonable suspicion.

As a general rule, the law provides that each case must be decided on its own facts, and a trial court’s ruling on a motion to suppress will not be disturbed unless it was manifestly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162; People v. Clark (1982), 92 Ill. 2d 96, 99; People v. Frazier (1993), 248 Ill. App. 3d 6, 12; People v. Bujdud (1988), 177 Ill. App. 3d 396, 401.) A police officer may stop and temporarily detain an individual for the purpose of a limited investigation if the officer is able to point to specific, articulable facts which, taken together with reasonable inferences drawn from the officer’s experience, would reasonably justify the investigatory intrusion. (Terry v. Ohio (1968), 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884-85; see also 725 ILCS 5/107-14 (West 1992).) To determine whether an investigatory stop was based upon a reasonable, articulable suspicion of criminal activity, an objective standard must be applied (Bujdud, 177 Ill. App. 3d at 401), and a mere hunch or general suspicion is insufficient (People v. Eyler (1985), 132 Ill. App. 3d 792, 800). (Frazier, 248 Ill. App. 3d at 13.) A stop is proper only if the facts available to the officer would warrant a person of reasonable caution to believe that the action taken was appropriate. (Frazier, 248 Ill. App. 3d at 13-14; Bujdud, 177 Ill. App. 3d at 401.) When viewed as a whole, the facts and inferences relied upon must lead to the conclusion that the situation is so far removed from the ordinary that any competent police officer would be expected to act quickly to maintain the status quo, rather than observe the situation further. People v. McGowan (1977), 69 Ill. 2d 73, 78; Frazier, 248 Ill. App. 3d at 14.

Defendants initially argue that the “furtive” movements Pasakamis observed after she activated her Mars lights and floodlight cannot be considered as supporting the asserted reasonable, articulable suspicion for the traffic stop because a “seizure,” within the meaning of the fourth amendment (U.S. Const., amend. IV), had already occurred when she activated the lights. “It is only at the point a seizure occurs that the fourth amendment is implicated (People v. Clark (1989), 185 Ill. App. 3d 231, 235-36 ***) and when the police officer is required to have a particularized and objective basis for suspecting the person of criminal activity (Michigan v. Chesternut (1988), 486 U.S. 567, 576, 100 L. Ed. 2d 565, 573, 108 S. Ct. 1975, 1981).” People v. Erby (1991), 213 Ill. App. 3d 657, 661-62.

Not all personal interaction between the police and a citizen constitutes a seizure, and only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen has a seizure occurred. (Chesternut, 486 U.S. at 573, 100 L. Ed. 2d at 571, 108 S. Ct. at 1979, citing Terry, 392 U.S. at 19 n.16, 20 L. Ed. 2d at 905 n.16, 88 S. Ct. at 1879 n.16; People v. Long (1983), 99 Ill. 2d 219, 229; People v. Graves (1990), 196 Ill. App. 3d 273, 277.) As recognized by the United States Supreme Court, a show of authority alone does not always constitute a seizure if the subject refuses to yield to that authority:

“The word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. *** It does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure. *** An arrest requires either physical force *** or, where that is absent, submission to the assertion of authority.” (Emphasis in original.) California v. Hodari D. (1991), 499 U.S. 621, 626, 113 L. Ed. 2d 690, 697, 111 S. Ct. 1547, 1550-51.

This is not to say that a show of force alone can never constitute a seizure; the question is one of degree. As noted by the United States Supreme Court in Brower v. County of Inyo (1989), 489 U.S. 593, 103 L. Ed. 2d 628, 109 S. Ct. 1378, a show of authority, such as the pursuit of a car with flashing lights or a police officer on the roadway signalling an oncoming car to stop, which is merely designed to induce a voluntary stop, differs markedly from a show of authority, such as a roadblock, which is designed to produce a stop if voluntary compliance does not occur. The latter constitutes a fourth amendment “seizure” while the former will not, absent a submission to authority. (See Brower, 489 U.S. at 598-99, 103 L. Ed. 2d at 636-37, 109 S. Ct. at 1382; accord Erby, 213 Ill. App. 3d at 661-63; Graves, 196 Ill. App. 3d at 277-78.) If, in the present case, defendants did not immediately yield to Pasakarnis’ signal, and the vehicle continued on its course for a period of time while defendant Perez made various “furtive” movements, then no seizure occurred until the vehicle began to yield and Pasakarnis’ observations during that time could be properly considered in determining the validity of the stop.

Officer Pasakarnis had set up a surveillance on a main highway leading away from the scene of a recent crime. She had been informed by dispatch of the suspects’ general description as well as that of the only vehicle seen leaving the area. Police officers are entitled to act upon information received in official communications. (People v. Taggart (1992), 233 Ill. App. 3d 530, 548; People v. Brown (1980), 88 Ill. App. 3d 514, 519.) Additionally, the suspect vehicle was believed to be headed either southbound on 1-55 or northbound on County Line Road. Officer De Young’s unsuccessful attempt to locate the suspect vehicle on County Line Road reinforced the investigative team’s suspicion that the car had turned onto southbound 1-55. (See People v. Fenner (1989), 191 Ill. App. 3d 801, 806 (information collectively received by officers acting in concert in investigating a crime may be used to establish reasonable suspicion to stop even if not known to the officer initiating the stop).) It was approximately 10 minutes after Pasakarnis received the dispatch concerning the armed robbery and took up her position along the roadside when she spotted defendants’ vehicle. Given Pasakarnis’ distance from the hotel, the suspect vehicle could reasonably have been expected to pass her location approximately at the time she observed defendants’ vehicle if it had in fact gone south on 1-55. This, coupled with the facts that the vehicle type matched the one described and its occupants matched the general description of the perpetrators, provided Pasakarnis with a sufficient basis for the minimal intrusion of an investigatory stop even if the passenger’s furtive or suspicious movements were not considered. It is well established that a reasonable suspicion supporting an investigatory stop can be derived, in part, from observing suspects similar to those believed fleeing from a recent crime when the observed suspects are located in the general area where the fleeing suspects would be expected to be given the time of the crime and the distance from the crime scene. See, e.g., People v. Lippert (1982), 89 Ill. 2d 171; People v. Starks (1989), 190 Ill. App. 3d 503; People v. Jackson (1986), 145 Ill. App. 3d 789; Brown, 88 Ill. App. 3d at 519-20; People v. Grice (1980), 87 Ill. App. 3d 718.

Defendants argue that there was no articulable basis for Pasakamis to conclude that their vehicle was the same one spotted leaving the area of the crime scene because its color varied from that indicated by De Young. Pasakamis offered the explanation, however, that it was difficult accurately to discern a vehicle’s color at night from a distance. It is the function of the trial court on a motion to suppress to evaluate the credibility of the witnesses, weigh their testimony, and determine the inferences to be drawn therefrom. (Galvin, 127 Ill. 2d at 163; Taggart, 233 Ill. App. 3d at 547.) Officer Pasakarnis was entitled to act upon reasonable, articulable suspicions. The fact that she was given only a general description of the vehicle and the suspects did not preclude the trial court, having heard the testimony and viewed the demeanor of the witnesses, from concluding that she had acted in accordance with the law given the entirety of the circumstances. The evidence provided support for the trial court’s decision.

For the foregoing reasons, we hold that the trial court’s ruling was not manifestly erroneous, and the judgment of the circuit court of Du Page County is hereby affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE BRESLIN

text:
    COURT STREET STEAK HOUSE, INC., Plaintiff-Appellant, v. TAZEWELL COUNTY, Defendant-Appellee.
    Third District
    No. 3—92—0865
    Opinion filed June 25, 1993.
    Modified on denial of rehearing August 31, 1993.

      Gerald L. Hall, of Pekin, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin (Stewart J. Umholtz, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE BRESLIN

delivered the opinion of the court:

The defendant, Tazewell County (County), advertised for competitive bid proposals for supplying food to prisoners in the Tazewell County jail. The plaintiff, Court Street Steak House, Inc., was the low bidder. The County Board (Board) awarded the food service contract to a second bidder. Thereafter, the plaintiff filed a petition for a writ of mandamus in the circuit court of Tazewell County seeking damages and an order compelling the County to award the project to the plaintiff. The trial court dismissed the plaintiff’s complaint, finding that the Board’s determination of “lowest responsible bidder” was the performance of an official act involving the exercise of judgment or discretion and therefore not subject to a mandamus action. The plaintiff appeals. We reverse.

The record shows that the plaintiff submitted a bid of $6.22 per day. The Tazewell County Resource Center (TCRC) submitted a bid of $6.29 per day. These were the only two bids on the project. The TCRC had provided food to the prisoners for the past seven years. About 60% of the TCRC’s food training program for handicapped persons was based on the prison food contract.

The County property committee initially voted to recommend to the Board that the plaintiff’s bid be accepted. Thereafter, the Board rejected the plaintiff’s bid. The property committee met again and this time voted to recommend that the TCRC’s bid be accepted. The Board subsequently accepted the TCRC bid. An amendment to that resolution stated that the Board accepted TCRC’s “low” bid because of its past performance.

The sole issue presented on appeal is whether the trial court erred in finding that the plaintiff could not maintain a mandamus action to compel the County to award it the contract.

Section 5 — 1022 of the Illinois Counties Code provides in relevant part that any purchase by a county for services in excess of $10,000 shall be contracted for “by a contract let to the lowest responsible bidder after advertising for bids in a newspaper published within the county.” Ill. Rev. Stat. 1991, ch. 34, par. 5 — 1022.

The plaintiff argues that it was undisputably the low bidder on the project. It further argues that there was nothing in the record indicating that it was not a responsible bidder and therefore the board had no discretion other than to award the plaintiff the contract.

In response, the County argues that Illinois courts have repeatedly held that the factual determination of “lowest responsible bidder” is wholly within the discretion of the governmental body charged with reviewing the bids. (See Kelly v. City of Chicago (1871), 62 Ill. 279; McGovern v. City of Chicago (1917), 281 Ill. 264, 118 N.E. 3; Board of County Commissioners v. People ex rel. Collins (1898), 78 Ill. App. 586.) The County suggests that in the absence of fraud a reviewing court cannot interfere with the determination of the “lowest responsible bidder.”

We note that it is well settled that the award of a contract to a bidder involves the exercise of discretion on the part of the Board, which discretion will not normally be interfered with by the courts. (See Kelly v. City of Chicago (1871), 62 Ill. 279; McGovern v. City of Chicago (1917), 281 Ill. 264, 118 N.E. 3; Board of County Commissioners v. People ex rel. Collins (1898), 78 Ill. App. 586.) However, the Board’s suggestion that the courts will only interfere where fraud or lack of jurisdiction is shown is mistaken. (See Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 289 (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546; Kermeen v. City of Peoria (1978), 65 Ill. App. 3d 969, 382 N.E.2d 1374.) This court has previously noted that a lack of fraud does not end the inquiry. If a discretionary power is exercised with manifest injustice or if a palpable abuse of discretion is clearly shown, mandamus will issue. (Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 289 (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546.) Moreover, the supreme court has noted that a public officer may be guilty of so gross an abuse of discretion or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law; in such a case, mandamus will issue. Illinois State Board of Dental Examiners v. People ex rel. Cooper (1887), 123 Ill. 227.

In Cardinal Glass Co., the plaintiff brought a mandamus action against a school board to compel the award of a window replacing contract on a school district building, as the lowest responsible bidder on the project pursuant to section 10 — 20.21 of the Illinois School Code (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.21). The plaintiff’s complaint revealed that it was the low bidder and that the Board did not consider the plaintiff’s responsibility but awarded the contract to another bidder to keep the money in the community. The court found that such action would indicate a clear favoritism, without adequate and sufficient justification, and would constitute arbitrary and capricious action and a clear violation of the statutory mandate.

In the instant case, the record contains some indication that the Board awarded TCRC the contract because it was concerned about TCRC’s ability to survive if it were not awarded the contract. The Board also cited TCRC’s past performance as a reason for awarding it the contract. However, the record contains nothing indicating that the plaintiff, as the low bidder, was not responsible. We are aware that compared to the statutory language involved in Cardinal Glass Co., the statutory language in the instant case has significantly more criteria for the County to consider, i.e., quality, conformity, suitability, and delivery terms, in determining the lowest responsible bidder. However, there is no indication from the record that the plaintiff was deficient in any of these areas as compared to TCRC. If, as the pleadings suggest, the plaintiff is able to establish itself as the low bidder and a responsible bidder based on the statutory criteria, it should be entitled to the contract.

Since, at this stage, it is impossible to award the contract to the plaintiff, we must address the issue of whether the plaintiff would be entitled to recover money damages should it prevail on remand.

In that regard, we note that the Appellate Court, Second District, has held that money damages are not available in such a case. (Beaver Glass & Mirror Co. v. Board of Education of Rockford School Dis trict No. 205 (1978), 59 Ill. App. 3d 880, 376 N.E.2d 377.) The Beaver Glass holding was followed in Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785, and Premier Electrical Construction Co. v. Board of Education (1979), 70 Ill. App. 3d 866, 388 N.E.2d 1088. However, this court, in Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 289 (1983), 113 Ill. App. 3d 442, 447 N.E.2d 546, criticized and declined to follow the reasoning in Beaver Glass.

The issue in Beaver Glass was whether the plaintiff was entitled to money damages in a mandamus action. The Beaver Glass court held that the plaintiff could not recover money damages because if such damages were awarded taxpayers would be forced to pay twice whenever a school board awarded a contract to someone who was not the lowest responsible bidder, once through the unjustified additional expenditure on the awarded contract and a second time paying the lost profits of the aggrieved low bidder. The court found that the statute was not designed to create a private remedy. The court also stated that money damages were generally not available in a mandamus action where the amount of the debt is unascertained.

In Cardinal Glass the issue was whether the low bidder even had standing to bring a mandamus action in light of the holding in Beaver Glass that the low bidder was not within the class the statute was designed to protect. In Cardinal Glass, the plaintiff did not seek money damages but rather brought a mandamus action seeking to compel the school district to award the plaintiff the contract. In declining to follow the reasoning of Beaver Glass, the Cardinal Glass court noted that the duty to award the contract to the lowest responsible bidder is owed both to the taxpaying public and to the bidders, who are made an integral part of the statutory scheme, and that the statutory measures directly benefit and protect the bidders themselves. The court further noted:

“As a practical matter, securing compliance with the statute, and thereby the benefits to taxpayers, will be more effectively handled by unsuccessful bidders, who for the most part have a greater stake in such matters, and greater resources, than an individual taxpayer. In the long run, permitting such suits by bidders will work to advance the public interest behind the statute by securing the goal of tax savings. In an individual case, it may have the effect of causing additional expenditure by a board which has violated the statute [citation], but in a broader picture, giving standing to the bidders where the statute has been violated will advance the object of the statute. We find that unsuccessful lowest responsible bidders are within the zone of protection afforded by [the statute], and where the Board violates the [statute] by awarding a contract to another bidder, the unsuccessful lowest responsible bidder has standing to challenge that action. *** We respectfully disagree with the decision in Beaver Glass. Cardinal has standing, as the alleged unsuccessful lower responsible bidder, to challenge a violation of the statute by the Board.” Cardinal Glass Co. v. Board of Education of Mendota Community Consolidated School District No. 289 (1983), 113 Ill. App. 3d 442, 447, 447 N.E.2d 546, 549.

We find that the same rationale for standing enunciated in Cardinal Glass applies to an award of money damages. Since the crux of the decision in Beaver Glass was based on reasoning which we later rejected, we decline to follow that case and hold that money damages are appropriate in these types of cases where the contract period has passed and it is impossible to award the contract to the low bidder. Precluding an unsuccessful low bidder from recovering money damages where the contract period has expired would leave the bidder without an effective remedy. (See L.E. Zannini & Co. v. Jenkins & Boiler Co. (1987), 159 Ill. App. 3d 227, 512 N.E.2d 89.) Thus, we conclude that the plaintiff may recover money damages should the trial court find that the Board wrongly determined that TCRC was the lowest responsible bidder considering the statutory elements of quality, conformity, suitability and delivery terms.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

LYTTON and BARRY, JJ., concur.


author: PRESIDING JUSTICE McCUSKEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED COLLINS, Defendant-Appellee (The Department of Corrections, Intervenor-Appellant).
    Third District
    No. 3-93-0291
    Opinion filed September 3, 1993.
    Roland W. Burris, Attorney General, of Springfield (Michael A. Hurst, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Martin Abrams, of Chicago, for appellee Fred Collins.
    James Glasgow, State’s Attorney, of Joliet, for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

On April 5, 1993, the circuit court of Will County issued an order directing the Illinois Department of Corrections (IDOC) to transport the defendant, Fred Collins, to Will County for a hearing on his petition for post-conviction relief. The order further directed IDOC to remand custody of the defendant to the Will County sheriff for the duration of the hearing. IDOC appeals, arguing that the trial court abused its discretion in ordering the defendant brought to Will County.

For reasons which follow, we affirm that portion of the order requiring IDOC to transport the defendant to Will County for the hearing. However, we vacate that portion of the order directing IDOC to remand custody of the defendant to the Will County sheriff. Finally, we remand this case to the circuit court of Will County with the following directions: (1) set a new hearing date for the defendant’s petition; and (2) issue a new order of habeas corpus ad testificandum stating that the defendant will remain in the custody of IDOC during the post-conviction proceedings.

The defendant and two others were convicted of the murder of George Bailey. The murder occurred in Stateville prison. All three defendants were sentenced to imprisonment for natural life. (See People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) The defendant brought a petition for post-conviction relief for which the trial court appointed counsel. During several changes in counsel appointments, IDOC moved the defendant among several different correctional facilities pursuant to the Interstate Corrections Compact (730 ILCS 5/3— 4 — 4 et seq. (West 1992)). At all times relevant to this appeal, the defendant was incarcerated in a facility in Stillwater, Minnesota.

On March 5, 1993, the trial court ordered IDOC to produce the defendant in the circuit court of Will County on March 30, 1993, so that a hearing date could be set on the petition and to allow a meeting between the defendant and his newly appointed counsel. IDOC refused to produce the defendant on March 30. Instead, it filed motions seeking leave to intervene and asking the court to reconsider its order of March 5. The court granted IDOC leave to intervene but denied its motion to reconsider. The court again ordered IDOC to transfer the defendant to a facility in the vicinity of Will County for the purpose of allowing the defendant to confer with counsel. IDOC then moved for an emergency stay of the trial court’s orders of March 5 and March 30.

On April 5, the trial court held a hearing on IDOC’s motion to stay the previous orders of March 5 and March 30. IDOC argued that our decision in People v. Lego (1991), 212 Ill. App. 3d 6, 570 N.E.2d 402, prohibited the court from ordering IDOC to produce the defendant unless his presence was necessary for a hearing. Rather than rule on IDOC’s motion, the court again ordered IDOC to produce the defendant. The defendant was to be produced on April 22, 1993. The court also remanded the defendant to the custody of the Will County sheriff. The court additionally set the defendant’s post-conviction petition for hearing on April 23, 1993. Finally, the court vacated its previous orders to the extent of their inconsistency with its April 5 order.

On April 20, 1993, IDOC filed a notice of interlocutory appeal and a motion asking this court to stay the trial court’s order. We granted IDOC’s motion that same day. We note that the State is not a party to this appeal.

As a preliminary matter, the defendant argues that we have no jurisdiction over this appeal because the trial court’s order was not a “final and appealable order.” We disagree. We conclude that the order was in the nature of an injunction and, therefore, an interlocutory appeal was proper. Supreme Court Rule 307(a)(1) provides that “[a]n appeal may be taken to the Appellate Court from an interlocutory order of court *** granting, modifying, dissolving, or refusing to dissolve an injunction.” (134 Ill. 2d R. 307(a)(1).) To determine whether an act of the circuit court operates as an injunction under Rule 307(a)(1), the court must look to the substance of the action and not its form. (Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177, 180, 303 N.E.2d 1.) In Illinois, “[ajctions of the circuit courts having the force and effect of injunctions are still appealable even if called something else.” (In re A Minor (1989), 127 Ill. 2d 247, 260, 537 N.E.2d 292, 297.) The courts have a policy of broadly construing the meaning of the term “injunction.” (Minor, 127 Ill. 2d at 261, 537 N.E.2d at 298.) In H.T.A., Ltd. v. Luxion (1991), 211 Ill. App. 3d 739, 570 N.E.2d 599, the court held that a temporary restraining order requiring one of the parties to accept replacement letters of credit was in the nature of an injunction and thus appealable. The order required the party to “ ‘do a particular thing *** which operates as a restraint upon a party in the exercise of his real or supposed rights.’ ” H.T.A., 211 Ill. App. 3d at 743, 570 N.E.2d at 602, quoting Minor, 127 Ill. 2d at 261, 537 N.E.2d at 298.

In the instant case the trial court ordered IDOC to transport the defendant to Will County for a hearing on his post-conviction petition. The court’s order had the effect of requiring IDOC to do a particular thing under penalty of law and in contravention of IDOC’s apparent authority. Thus, we conclude that the April 5 order was substantively an injunction and was therefore appealable under Rule 307(a)(1).

We now turn to the merits of the appeal. IDOC contends that the court abused its discretion in requiring the defendant to be brought to Will County. We disagree. Secondarily, IDOC argues that the court’s action in setting a hearing for the defendant’s post-conviction petition was merely a “pretense.” IDOC asserts that the court’s true motive for ordering the defendant’s transportation to Illinois was for the convenience of the defendant’s counsel. In support of its position, IDOC argues that our decision in Lego voids the court’s order of April 5, 1993. Again, we disagree.

First, we will consider whether the trial court abused its discretion in the April 5 order. A court may order a defendant petitioning for post-cónviction relief to be brought before the court for the hearing. (725 ILCS 5/122 — 6 (West 1992).) This may be accomplished by the issuance of an order of habeas corpus ad testificandum. (735 ILCS 5/10 — 135 (West 1992).) The decision to have an inmate present at his post-conviction hearing is within the sound discretion of the hearing judge. (People v. Stovall (1970), 47 Ill. 2d 42, 47, 264 N.E.2d 174, 176.) Where the trial court has discretion, only a clear abuse of that discretion or the application of impermissible legal standards will justify reversal. A court of review must look to criteria on which the trial court should rely in determining whether the trial court abused its discretion. (Boatmen’s National Bank v. Martin (1993), 155 Ill. 2d 305, 314, 614 N.E.2d 1194, 1198-99.) The trial court must determine in its discretion whether the inmate’s interest in being present in court outweighs the State’s interest in security and handling the inmate. Some relevant considerations include how substantial the matter is and whether the inmate’s testimony is necessary. In re Marriage of Allison (1984), 126 Ill. App. 3d 453, 459, 467 N.E.2d 310, 314, citing Moeck v. Zajackowski (7th Cir. 1976), 541 F.2d 177, 181.

In Lego, we reversed an order which required IDOC to move a defendant from one facility to another solely for the convenience of the defendant’s attorney, psychiatrist and investigator. Based on those facts, we held that the court had no authority to order IDOC to move the defendant from one facility to another. However, we also stated that the trial court always retains its power to “order the transfer of an inmate within the control of the IDOC *** when an inmate is scheduled to testify or otherwise has a right to be present for hear ing.” (Emphasis added.) Lego, 212 Ill. App. 3d at 8, 570 N.E.2d at 404.

Here, we cannot say that the trial court abused its discretion when it ordered IDOC to bring the defendant to Will County for a hearing on the post-conviction petition. We can discern no clear abuse of discretion, nor did the trial court apply any impermissible legal criteria. The court’s April 5 order on its face complies with our decision in Lego, regardless of the substance of its prior orders. The text of the April 5 order indicates that it was issued solely for the purpose of ensuring the defendant’s presence at the hearing on the post-conviction petition. The court’s order clearly complies with our holding in Lego. Therefore, we conclude that the trial court did not abuse its discretion in ordering IDOC to secure the defendant’s presence at the hearing on the post-conviction petition.

Finally, we turn to that portion of the April 5 order requiring IDOC to surrender the defendant to the Will County sheriff. We vacate this portion of the order because we hold that the trial court’s action exceeded its authority.

When a court issues an order of habeas corpus ad testificandum, the court is without authority to order the prisoner taken from the warden’s custody and remanded to the county sheriff. (People v. Turney (1916), 273 Ill. 546, 559, 113 N.E. 105.) Rather, the warden has a duty to retain custody and return the inmate to a penitentiary after his testimony has concluded. (People ex rel. Lucey v. Kersten (1915), 269 Ill. 597, 601, 109 N.E. 1012.) The assignment, location and housing of inmates is a matter within IDOC’s discretion, into which courts may not intervene. (People v. Fowler (1958), 14 Ill. 2d 252, 259, 151 N.E.2d 324, 328.) Here, the trial court’s April 5 order required IDOC to remand custody of the defendant to the Will County sheriff. As our supreme court has indicated, the courts are without power to transfer inmates from one facility to another and may not remove an inmate from IDOC’s lawful custody. Accordingly, we vacate that portion of the April 5 order.

In sum, (1) that portion of the court’s order requiring IDOC to transport the defendant to Will County for the hearing on his post-conviction petition is affirmed; and (2) that portion of the order remanding the defendant to the custody of the Will County sheriff is vacated.

We remand this case to the circuit court of Will County with directions that it set a new hearing date for the defendant’s post-conviction petition and issue another order of habeas corpus ad testificandum. The new order must state that the defendant will remain in the custody of IDOC during the post-conviction proceedings. As a result of our holding, we find it unnecessary to address the other contentions raised by the parties in this appeal.

Affirmed in part; vacated in part and remanded with directions.

STOUDER and LYTTON, JJ., concur.