author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN D. GOODEY, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0248
    Opinion filed December 30, 1991.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On January 22, 1991, following a stipulated bench trial in the circuit court of Macon County, defendant Stephen Goodey was convicted of unlawful possession of cannabis. He was subsequently sentenced to 30 months’ intensive probation supervision, assessed a street-value fine of $424 and a statutory lab fee of $50. He was ordered to pay a $25-per-month probationary service fee and to reimburse the county $150 for the value of the public defender’s services. Defendant appeals, contending the trial court erred in denying his motion to suppress the evidence of the cannabis taken from him upon his arrest. We agree and reverse.

At the January 2, 1991, hearing on defendant’s motion to suppress evidence, defendant testified he was walking down Warren Street near the intersection of Condit Street in Decatur at approximately 3 a.m. on October 1, 1990. Defendant was on foot — because he had experienced car trouble — when he was approached by two Decatur police officers. Defendant testified the two officers walked up to him, asked him if he was lost and told him he was the wrong color to be in the neighborhood. Defendant is white and the neighborhood he was in is predominantly black. Defendant started to tell the officers he was not lost but had car trouble and that was why he was in the area. Defendant further testified one officer moved him away from several black people standing on a street corner and asked him to empty his pockets. Defendant testified the police officer did not ask him his name or ask for identification until after he had emptied his pockets. Defendant was never told he was under arrest, nor was he presented with any warrant, and he did not consent to the search.

Defendant further testified he reached for his wallet when the police officer asked him to empty his pockets, but the officer indicated he wished to see the contents of his coat pockets. Each coat pocket contained a soft, mushy plastic bag with a leafy material inside, later determined to be cannabis. Defendant was then told to put his hands on the car, and was handcuffed and placed in the squad car.

Officer Larry Butler, an eight-year veteran of the Decatur city police department, testified the area of Warren and Conduit streets is a high drug-activity area and that hundreds of arrests for drugs had been made there. Butler testified that on October 2, 1990, he observed a blue pickup truck pull over to the east side of Warren Street. He watched defendant get out of the truck, walk to the corner, and start a conversation with several black males standing on that corner. Butler approached defendant, asked him what he was doing in the area, and asked for identification. Butler testified defendant stated he was looking for a friend and produced a driver’s license. Butler testified that as he was reading defendant’s driver’s license, he observed defendant place both hands in his coat pockets and start to back away from him.

Butler stated at that point he decided to conduct a pat-down search of defendant. Defendant was placed against the squad car and Butler patted the exterior of defendant’s clothing. Butler felt a mushy package in one of defendant’s coat pockets but testified he could tell it was not a weapon. Butler then reached into that pocket and pulled out a clear plastic bag containing a green leafy material. Butler then reached into defendant’s other coat pocket and pulled out a similar package. These packages were the objects on which the charges were based and for which suppression was sought.

Defendant contends (1) the initial stop by the officers was an unreasonable seizure because there was no reason to believe he was engaged in criminal activity; and (2) even if the initial stop was valid, the police officer exceeded his authority when he reached into defendant’s coat pockets and removed the objects. We need not address defendant’s first contention because we believe the trial court’s determination that the frisk was proper was against the manifest weight of the evidence.

“Under the doctrine of Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, when, as contended by the State here, a valid stop has been made, an officer is permitted to conduct a limited search for weapons only where he reasonably suspects that he or another is in danger of attack. Section 108 — 1.01 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 108 — 1.01) is in conformity with Terry and specifically authorizes peace officers to make such a limited search under those circumstances.” (People v. Morgan (1985), 138 Ill. App. 3d 99, 101, 484 N.E.2d 1292, 1293.)

In Morgan, this court held the trial court erroneously failed to suppress evidence of cannabis found on the defendant when “[i]t [was] difficult to see how a bag of cannabis could produce a bulge in defendant’s coat which would resemble a weapon.” Morgan, 138 Ill. App. 3d at 101-02, 484 N.E.2d at 1293.

This court’s opinion in People v. Ricksy (1990), 206 Ill. App. 3d 302, 564 N.E.2d 256, is dispositive of this issue. There, the defendant was lawfully stopped by the police because of a defective brake light. Upon approaching the defendant’s vehicle, the police officer noticed the butt of a hunting knife protruding from the back of the driver’s seat on the right side of the vehicle. The officer ordered the defendant out of the car and proceeded to pat him down. During this pat-down, the officer felt a small, thick paper package in the defendant’s front right pants’ pocket. This package was approximately two inches by one inch in size. The officer removed the package, which turned out to be a manila envelope containing cocaine.

This court held the trial court erred in denying the defendant’s motion to suppress the evidence as the search of the defendant was a violation of the fourth amendment to the U.S. Constitution. (Ricksy, 206 Ill. App. 3d at 310, 564 N.E.2d at 261.) Noting nothing in the record supported the officer’s claim that he removed the package because he believed it was a weapon, and that its removal was for his own safety, this court stated:

“Simple curiosity is not a sufficient basis to justify the removal of such an object from a person’s clothing.” (Ricksy, 206 Ill. App. 3d at 309, 564 N.E.2d at 261.)

This court then held that in order for an officer to lawfully remove an object the officer feels during a pat-down search from a person’s clothing, that officer must believe the object might be a weapon and articulate a basis for that belief. Ricksy, 206 Ill. App. 3d at 309, 564 N.E.2d at 261.

In the instant case, nothing in this record supports the proposition that Butler felt the object in defendant’s coat pocket was any sort of weapon. In fact, Butler’s own testimony at the hearing on the motion to suppress evidence was that he knew the soft, mushy package was not a weapon. Butler testified that based on his experience as a police officer and other pat-down searches he had conducted, soft, mushy packages usually contain drugs, but he knew this package could not be a weapon.

This case is factually distinguishable from our decision in People v. Day (1990), 202 Ill. App. 3d 536, 560 N.E.2d 482, where the officer seized an object he believed to be a razor blade. In fact, the object seized there was a small, white envelope, known as a “druggist fold,” utilized to hold loose drugs. This court held it was reasonable for the trial court to find that a piece of paper could be folded in such a manner as to produce a tactile sensation similar to that of a razor blade. (Day, 202 Ill. App. 3d at 545, 560 N.E.2d at 488.) Here, the packages found in defendant’s pockets could in no way have created a tactile sensation similar to any kind of weapon. Butler testified the package was soft and mushy and he did not believe it was a weapon. Therefore, Butler had no basis to remove the packages from defendant’s pockets.

While the erroneous failure to suppress evidence usually requires only a reversal and remandment for a new trial, here the required suppression of the cannabis and the evidence of its taking from defendant would destroy any opportunity for the State to prevail on a new trial. Accordingly, we reverse the conviction and sentence but make no order for remandment.

Reversed.

GREEN, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    WILLIAM R. AYERS, a/k/a Will Ayers, Plaintiff-Appellant, v. DAVID B. MARTIN et al., Indiv. and as Members of the Educational Officers Electoral Board of Bement Community Unit School District No. 5, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 91—0733
    Opinion filed December 30, 1991.

      James L. Ayers, of Monticello, for appellant.
    Merry C. Rhoades, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Carbondale, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

The Board of Education (School Board) of Bement Community School District No. 5 adopted a resolution which would have authorized the issuance of working cash bonds in the amount of $515,000. (See Ill. Rev. Stat. 1989, ch. 122, pars. 20 — 1 through 20 — 9.) Plaintiff William R. Ayers filed petitions seeking to require a public referendum on the question of issuance of the bonds. The School Board directed the filing of challenges to the petitions. A hearing on these challenges was held before an electoral board which consisted of three members of the School Board. (See Ill. Rev. Stat. 1989, ch. 46, par. 10 — 9(5).) Sufficient objections were sustained to prevent placing the working cash bond issue on the ballot. Pursuant to section 10 — 10.1 of the Election Code (Code) (Ill. Rev. Stat. 1989, ch. 46, par. 10 — 10.1), plaintiff sought administrative review in the circuit court of Piatt County. That court upheld the electoral board. Plaintiff appeals. We affirm.

Plaintiff’s only contention on appeal is denial of a fair and impartial hearing before the electoral board because of an alleged conflict of interest. The electoral board consisted entirely of members of the School Board which was seeking issuance of the working cash bonds. Two members of the electoral board had voted as School Board members to authorize challenges to the petitions. Plaintiff does not claim error in the court’s affirmance of the electoral board’s decision sustaining sufficient challenges to void the petitions. However, we point out that the challenges stated the petitions (1) were signed by nonregistered voters, (2) contained three forged signatures, (3) were missing addresses, (4) were improperly executed by circulators, (5) had circulators witnessing their own signatures, (6) contained illegible signatures, and (7) were improperly bound and lacked consecutive numbers. We emphasize that most objections dealt with questions of law.

Basically, plaintiff bases his claim on lack of due process. The court decision in In re Objection of Cook to Referendum Petition of Pierce (1984), 122 Ill. App. 3d 1068, 462 N.E.2d 557, determined that venue should not be changed from a duly constituted electoral board when the statute designated the composition of the board and did not provide for a procedure for changing venue. In Cook, the circuit court, sitting in administrative review, considered the nature of the challenges to the board members and found the board’s decision to be correct.

Even more on point is Ryan v. Landek (1987), 159 Ill. App. 3d 10, 512 N.E.2d 1. In Ryan, a newly formed political party filed nominating petitions for political offices in the Village of Bridgeview. Two of the officers of the party were members of the electoral board. They had also circulated the party’s petitions. Plaintiff filed objections to the petitions, which were heard by the electoral board. Plaintiff moved for the recusal of the two party officers at the outset of the hearing because of their potential bias and interest in the proceedings. The board overruled the motion and then rejected plaintiff’s objections to the nominating petitions. The circuit court affirmed the board’s decision.

On appeal, plaintiff contended the board did not afford him a fair, impartial, and unbiased hearing. The court found no merit in plaintiff’s claims. It found the case analogous to Cook. The court said that even if it agreed with plaintiff that he could not receive a fair hearing because of political bias, the Code does not provide for substitution when an objector alleges political bias. The statute specifies the instances in which a substitution must be made, and the court declined to rewrite the statute. These protections, together with the remedy of administrative review, adequately ensure an objector a fair hearing. Ryan, 159 Ill. App. 3d at 12-13, 512 N.E.2d at 2-3.

Plaintiff seeks to distinguish these cases. He points out that Cook and Ryan dealt with allegations of political bias as a disqualification to serve on the electoral board. In the instant case, plaintiff notes that two of the electoral board members had voted as members of the School Board to authorize the preparation of the objections to his petitions that they, as members of the electoral board, would review. He also claims the School Board has a pecuniary interest in the outcome, which was not present in Cook and Ryan. However, this argument is without merit. As defendants point out, none of the electoral board members have any personal financial interest in this matter.

In effect, plaintiff asks us to rewrite the statute and allow for recusal of electoral board members in this case. We decline this invitation, as did the courts in Cook and Ryan.

The due-process protection in cases of this type, where conflicts of interest appear present, is based upon circuit court administrative review. Here, the circuit court reviewed the petitions as to irregularities. The administrative review “hearing and determination shall extend to all questions of law and of fact presented by the entire record before the court.” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110.) While section 3 — 110 of the Code of Civil Procedure also provides “findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct” (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 110), we hold that where, as here, the issues are basically questions of law and the trial court has reviewed them de novo, due process is provided.

Regardless of our decision, we recognize the appearance of impropriety where the advocates of a position end up ruling on procedures involving the adoption or defeat of the position. The General Assembly might find it advisable to adopt corrective legislation.

Affirmed.

GREEN, P.J., and COOK, J., concur.


author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD NASSER, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0389
    Opinion filed December 30, 1991.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a bench trial, the trial court found defendant, Richard Nasser, guilty of arson (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1), perjury (Ill. Rev. Stat. 1989, ch. 38, par. 32 — 2), and violating the secured creditor criminal provisions of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1989, ch. 26, par. 9 — 306.01(l)(b)) and sentenced him to four years and one month of probation, on the conditions (among others) that he serve six months in jail and pay restitution of approximately $35,000. Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt of arson, and (2) the trial court erred in ordering him to pay restitution. We affirm.

I. Facts

Defendant and Albert Clark, a passive investor, owned American Termite and Pest Control (American Termite). Defendant served as president of American Termite while Clark owned and operated a Chevrolet dealership in Cayuga, Indiana. In order to start American Termite, Clark cosigned a $57,000 note in January 1988 for American Termite from the Palmer American National Bank (Palmer Bank). In March 1988, defendant and Clark rolled this note over and added $108,500 to the total loan. Defendant made no payments on this loan, and in May 1988, Clark and defendant borrowed another $10,000 from the Palmer Bank. Defendant used part of the $108,500 to lease three trucks from Clark’s Chevrolet dealership for American Termite. He also bought other equipment assets for the business that served as collateral for the bank loans.

After the May 1988 loan, defendant still could not make the loan payments. In June 1988, Clark personally loaned defendant $15,000 to cover the first payments on the loan. The loan payments still went completely unpaid. On August 25, 1988, defendant wrote a check to Clark for the $15,000 loan plus interest; he also wrote another check for $300 for a broken windshield. Both checks bounced.

Before Clark could repossess the trucks, defendant sold one to another Chevrolet dealership. Defendant also sold other assets of the business that served as security for the bank loans.

Amidst this financial turmoil, a fire broke out at American Termite’s office building on the morning of September 8, 1988, shortly after 6 a.m. Earlier that same morning, around 5:50 a.m., defendant and Richard Winslow met at American Termite’s office to pick up some equipment from a pole barn adjacent to the office building. Defendant was already present when Winslow pulled up to the building. After they loaded the equipment onto a truck, Winslow entered the small office building to get a tissue. Defendant followed him into the building. When Winslow left, sometime between 5:55 to 6 a.m., defendant told Winslow to meet him at a gas station in about 15 minutes. Defendant intended to pick up a friend there. Defendant remained in the building when Winslow left the area and was thus the last person in the building prior to the fire. Defendant and Winslow later met at the gas station around 6:30, when defendant pulled up with another man in his truck.

At approximately 6:14 that same morning, an employee of a neighboring business reported the fire at American Termite after noticing smoke coming out of the American Termite office building. Firefighters arrived at about 6:30 and stopped the blaze at about 7:15, before it could cause serious damage. Michael Hill, a certified fire inspector, testified that he did not find a possible accidental cause for the fire, such as an electrical short or a mislaid cigarette. Hill further testified that the burn patterns and temperature of the fire, along with the speed at which the fire spread in the short time between defendant’s leaving the building (sometime after 6 a.m.) and the report of the fire (6:14), led him to believe that somebody had intentionally started the fire by using an accelerant.

The fire caused only about $10,000 in damage. Defendant had insured the building and its contents for $85,000 with the Travelers Insurance Company. The Travelers immediately paid defendant $1,000 under the policy but made no further payment because of the investigation into the cause of the fire.

In June 1989, a grand jury indicted defendant for 13 counts of perjury, two counts of violating the UCC secured creditor provisions, one count of theft, and two counts of arson. Defendant waived a jury trial. After the State presented its case, the trial court directed verdicts of not guilty on the first two counts of perjury, the theft charge, and the second arson count. At the end of trial, on May 11, 1990, the court entered a written order finding defendant not guilty of all but one of the remaining counts of perjury but guilty of the UCC criminal violations and of one count of arson. The court then sentenced defendant as previously described.

II. Sufficiency Of The Evidence

Defendant first challenges the sufficiency of the evidence to prove him guilty of arson beyond a reasonable doubt. The following standard of review applies to this argument:

“When presented with a challenge to the sufficiency of the evidence, it is not the function of [a reviewing] court to retry the defendant. *** [Rather,] ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

The evidence shows that defendant was the only person with both a strong motive and a clear opportunity to set the fire. Even Clark, defendant’s business partner, had repossessed two of the three trucks defendant leased from Clark. On the morning of the fire, only 15 to 20 minutes elapsed between the time Winslow left defendant at the office and the time neighbors reported the fire there. Finally, the testimony of Hill regarding the pattern of the bums, the temperature at which the fire burned, the speed at which it spread, and that he could find no accidental cause for the fire support the conclusion that someone intentionally set it.

Defendant argues that we should reverse his conviction because only circumstantial evidence linked him to starting the fire and because others had an opportunity and motive to start it. We are not persuaded. We agree with the following observation from People v. Dukes (1986), 146 Ill. App. 3d 790, 794, 497 N.E.2d 351, 354:

“The opportunity for [committing] an arson, the motive inducing an arson and the identity of a person accused of arson may all be established through circumstantial evidence because the crime of arson is, by its very nature, secretive and usually incapable of direct proof.”

Further, guilt beyond a reasonable doubt can be proved by purely circumstantial evidence. (People v. McKinney (1990), 193 Ill. App. 3d 1012, 550 N.E.2d 604.) Finally, as the supreme court has noted, “[speculation that another person might have committed the offense *** does not necessarily raise reasonable doubt as to the guilt of the accused.” People v. Herrett (1990), 137 Ill. 2d 195, 206, 561 N.E.2d 1, 6.

Viewing the evidence in the light most favorable to the prosecution, we conclude that it is sufficient to enable the trial court to find defendant guilty of arson beyond a reasonable doubt.

III. The Order Of Restitution

Defendant next argues that the trial court erroneously ordered him to pay restitution of approximately $35,000 based upon his convictions for arson and the secured creditor violations of the UCC. Citing People v. Stocke (1991), 212 Ill. App. 3d 547, 571 N.E.2d 192, and People v. Sharp (1989), 185 Ill. App. 3d 340, 541 N.E.2d 689, two decisions of the Fifth District Appellate Court, defendant argues that because neither of the crimes of which he was convicted is a crime of violence, the trial court had no authority to order him to pay restitution. We agree with defendant that both Stocke and Sharp support defendant’s position, but because we believe those cases were wrongly decided, we reject his argument and affirm the trial court’s order of restitution.

Defendant’s argument requires us to construe the word “victim,” as used in section 5 — 5—6(b) of the Unified Code of Corrections (Code), to determine whether that term must be limited to victims of violent crime, thereby barring trial courts from ordering defendants convicted of nonviolent crimes to pay restitution to the victims of those crimes. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(b).) The cardinal rule for courts in construing statutes is to ascertain legislative intent and give it effect. (People v. Scharlau (1990), 141 Ill. 2d 180, 192, 565 N.E.2d 1319, 1324-25.) Further, “[w]hen construing a statute, a court should additionally consider the purposes to be achieved by the law.” In re Estate of Callahan (1991), 144 Ill. 2d 32, 43, 578 N.E.2d 985, 989.

In Sharp, the Fifth District Appellate Court (hereinafter Fifth District) noted — possibly based on the parties’ arguments there — that the definition of “victim” in the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 1—22) incorporated the definition of “victim” contained in section 3(a) of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 1403(a)). (Sharp, 185 Ill. App. 3d at 344, 541 N.E.2d at 691.) That latter definition defined “victim” as follows:

“ ‘Victim’ means (1) a person physically injured in this State as a result of a violent crime perpetrated or attempted against that person or (2) a person who suffers injury to or loss of property as a result of a violent crime perpetrated or attempted against that person or (3) the spouse, parent, child or sibling of a person killed as a result of a violent crime perpetrated against the person killed or the spouse, parent, child or sibling of any person granted rights under this Act who is physically or mentally incapable of exercising such rights, except where the spouse, parent, child or sibling is also the defendant or prisoner or (4) any person against whom a violent crime has been committed or (5) any person who has suffered personal injury as a result of a violation of Section 11 — 501 of The Illinois Vehicle Code, or of a similar provision of a local ordinance, or of Section 9 — 3 of the Criminal Code of 1961, as amended.” Ill. Rev. Stat. 1987, ch. 38, par. 1403(a).

The Sharp court seemed to apply this definition of “victim” as if it were limited to victims of violent crimes. The court also implied that because this definition applied throughout the Code, including the provisions on restitution, the trial court could order restitution only where the defendant committed a violent crime. (Sharp, 185 Ill. App. 3d at 344, 541 N.E.2d at 691.) Because Sharp involved a violent crime, the Fifth District affirmed the trial court’s decision that restitution could be ordered.

In Stocke, the Fifth District vacated the trial court’s order of restitution because the defendant in that case did not commit a violent crime. Instead, the defendant was convicted of driving too fast for conditions. The vehicle defendant was driving collided with another vehicle, and several occupants of the other vehicle were seriously injured as a result. (Stocke, 212 Ill. App. 3d at 549, 571 N.E.2d at 193.) The trial court found defendant guilty and sentenced him, in part, to pay cash restitution in the amount of $95,309 to the occupants of the other vehicle whom he had seriously injured. The amount of restitution was to be reduced by the amount paid by insurance or other payments to the victims of the accident. (Stocke, 212 Ill. App. 3d at 550, 571 N.E.2d at 193.) Defendant appealed the order of restitution, and the court wrote the following:

“Section 5 — 5—6(b) provides that cash restitution may be paid only for actual out-of-pocket expenses, losses, damages and injuries, and only to ‘victims’ or insurance companies who have indemnified ‘victims.’ (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 6(b).) In People v. Sharp (1989), 185 Ill. App. 3d 340, 344, 541 N.E.2d 689, 691, we held that the term ‘victim’ as used in the restitution statute means any person physically injured in this State as a result of a violent crime perpetrated or attempted against that person. We further held that the term ‘violent crime’ means any felony in which force or threat of force was used against the victim or any misdemeanor which results in death or great bodily harm to the victim ***.
The offense for which defendant was convicted in the instant case was a petty offense. As such, it clearly does not fall within the definition of ‘violent crime,’ and the parties to whom defendant was ordered to make restitution do not qualify as ‘victims’ within the meaning of the restitution statute. Accordingly, the trial court erred in ordering defendant to make restitution in cash to those parties.” Stocke, 212 Ill. App. 3d at 553-54, 571 N.E.2d at 195-96.

In People v. Strebin (1991), 209 Ill. App. 3d 1078, 1084, 568 N.E.2d 420, 423, this court also construed section 5 — 5—6(b) of the Code and noted that the provisions in that subsection were added to the restitution statute by Public Act 83 — 1061 (Pub. Act 83 — 1061, eff. July 1, 1984 (1983 Ill. Laws 7226, 7227)). The language added to that section by Public Act 83 — 1061 reads as follows:

“ ‘(b) In fixing the amount of restitution to be paid in cash, the court shall allow credit for property returned in kind, for property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant; and after granting such credit, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim or other victims for such out-of-pocket expenses, losses, damages, or injuries, provided that in no event shall restitution be ordered to be paid on account of pain and suffering.’ (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-6(b).)” (Strebin, 209 Ill. App. 3d at 1084, 568 N.E.2d at 423-24.)

In Strebin, we construed the above subsection as follows:

“The [pertinent] language of section 5 — 5—6(b) of the Code has not been changed since 1984 ***. We view Public Act 83 — 1061 (Pub. Act 83 — 1061, eff. July 1, 1984 (1983 Ill. Laws 7226)) as a comprehensive change in the law governing restitution, reflective of an intention by the Illinois General Assembly, in every criminal case where possible, to achieve two goals: (1) to make victims whole for any injury received at the hands of the criminal to be sentenced; and (2) to make criminals pay all of the costs which arise as a result of injuries the victims suffered.” (Emphasis in original.) Strebin, 209 Ill. App. 3d at 1084, 568 N.E.2d at 424.

Public Act 83 — 1499—which added section 5 — 1—22 to the Code, incorporating by reference section 3 of the Act (quoted earlier) — and Public Act 83 — 1061, discussed by this court in Strebin, were both enacted by the same session of the Illinois General Assembly. (See Pub. Act 83 — 1061, eff. July 1, 1984 (1983 Ill. Laws 7226); Pub. Act 83— 1499, eff. Dec. 27, 1984 (1984 Ill. Laws 3942).) We mention this point because, according to the positions taken by the Fifth District Appellate Court in Stocke and Sharp, a trial court may order restitution only in cases in which the defendant has been convicted of a violent crime as that term is defined in the Act. Thus, the Fifth District views the definition of “victim” in the Act as a term that limits the trial court’s authority to order restitution. This interpretation necessarily means that prior to the enactment of the Act in 1984, this limitation upon the trial court’s authority was not present in section 5— 5 — 6(b) of the Code, or (for that matter) anywhere else in the Code. Therefore, according to the Fifth District, a trial court sentencing a defendant in 1983 for his conviction of nonviolent crimes, such as theft (Ill. Rev. Stat. 1983, ch. 38, par. 16 — 1), forgery (Ill. Rev. Stat. 1983, ch. 38, par. 17 — 3), burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1), deceptive practices (Ill. Rev. Stat. 1983, ch. 38, par. 17 — 1), or the like, could order that defendant to pay restitution to the victims of his crimes (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6(b)), but after 1984, the trial court has been statutorily barred from doing so. Furthermore, under this interpretation, trial courts áre barred from ordering restitution no matter how great the resources of the convicted (nonviolent) criminal may be (including stolen funds the location of which is known only to the criminal) and how bereft of funds the victim may have been rendered by the defendant’s criminal behavior. But see People v. Lambert (1990), 195 Ill. App. 3d 314, 332-34, 552 N.E.2d 300, 312-13 (discussing factors which a trial court may consider in ordering restitution).

With all due respect to our colleagues in the Fifth District Appellate Court, we disagree with their interpretation of legislative intent regarding the subject of restitution. The construction on the law of restitution given by the Fifth District simply cannot be what the legislature intended.

As further support for our position that the term “victim” in section 5 — 5—6(b) of the Code cannot be limited to victims of violent crimes for purposes of restitution, we note that the legislature has added subsection (g) to section 5 — 5—6 of the Code by Public Act 85— 1194 (Pub. Act 85-1194, eff. Aug. 19, 1988 (1988 Ill. Laws 1495, 1505 — 06)). That subsection reads in pertinent part as follows:

“The court shall, after determining that the defendant has the ability to pay, require the defendant to pay for the victim’s counseling services if:
(1) the defendant was convicted of an offense under Sections 11-19.2, 11-20.1, 12-13, 12-14, 12-15 or 12-16 of the Criminal Code of 1961 ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-6(g)(l).)

New subsection (g), which was enacted prior to the criminal conduct in the present case leading to defendant’s conviction, twice uses the term “victim,” yet the offenses specified, for which restitution is mandatory, are not in all instances crimes of violence as the Act defines that term. Most of the offenses listed in subsection (g) are sex offenses which involve sexually abusing children without using any force or threat of force.

In People v. Gaytan (1989), 186 v. App. 3d 919, 542 N.E.2d 1163, the Second District Appellate Court confronted a similar argument that because the defendant was convicted of various drug offenses, the trial court erred in ordering him to pay restitution because his conviction was not for a crime of violence. The court in response wrote the following:

“The focus of section 5 — 5—6 of the Code of Corrections under which restitution may be ordered to a victim is on the criminal acts the defendant is convicted of, such as where property was taken, property damage incurred, or personal injury suffered. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 5—6(a), (b).) The victim of such crimes is entitled to restitution in the court’s discretion. Rather than looking solely at the definition of ‘victim’ in section 5 — 1—22, which adopts the meaning of ‘victim’ in section 3 of the Victim’s Bill of Rights Act and is limited to victims of violent crimes only, we believe section 5— 5 — 6 applies more broadly to victims other than from violent crimes, and, accordingly, we further look to whether property was taken, property damage was incurred, or personal injury sustained.” Gaytan, 186 Ill. App. 3d at 929, 542 N.E.2d at 1170-71.

We find Gaytan to be consistent with the views we thereafter expressed in Strebin. We adhere to those views and reject defendant’s argument that the trial court may impose an order of restitution only when the defendant has been convicted of a violent crime. To hold otherwise would bar the trial court from ordering restitution in cases like People v. Powell (1990), 199 Ill. App. 3d 291, 295, 556 N.E.2d 896, 899, in which this court affirmed an order of restitution of $5,710 entered against a defendant convicted of State benefits fraud.

In contrast to the goals of restitution we discussed in Strebin, the Fifth District Appellate Court in Sharp wrote the following:

“The general purpose of the Code of Corrections is to rehabilitate the offender, if possible, and to restore him to useful citizenship. (Ill. Rev. Stat. 1987, ch. 38, par. 1001 — 1—2; People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267.) We are concerned that in the instant case, the probation system is not being used for rehabilitative purposes, but comes close to imposing civil liability. In interpreting California’s restitution statute, the California Supreme Court stated:
‘Disposing of civil liability cannot be a function of restitution in a criminal case. To begin with, the criminal justice system is essentially incapable of determining that a defendant is in fact civilly liable, and if so, to what extent. *** A party sued civilly has important due process rights, including appropriate pleadings, discovery, and a right to a trial by jury on the specific issues of liability and damages. The judge in the criminal trial should not be permitted to emasculate those rights by simply declaring his belief that the defendant owes a sum of money.’ People v. Richards (1976), 17 Cal. 3d 614, 620, 552 P.2d 97, 101, 131 Cal. Rptr. 537, 541.”
Sharp, 185 Ill. App. 3d at 347, 541 N.E.2d at 693.

We quote the above language to emphasize our disagreement with it. As we stated in Strebin, the Illinois General Assembly intended, in every criminal case where possible, to achieve two goals: (1) to make victims whole for any injury received at the hands of the convicted criminal; and (2) to make criminals pay all of the costs which arise as a result of injuries the victim suffered. (Strebin, 209 Ill. App. 3d at 1084, 568 N.E.2d at 424.) We do not share the views of the Fifth District Appellate Court in Sharp, wherein that court expresses concern for the civil due process rights of convicted criminals when trial courts assess orders of restitution.

First, by any standard, the hoops the State must jump through before convicting a criminal defendant — the criminal due process rules — provide more protection to criminal defendants than the civil due process rules provide civil defendants when determining whether a civil defendant is liable to a plaintiff.

Second, as opposed to typical civil litigation, there is no moral equivalence between the two parties before the court. The criminal, through his own volition, committed the criminal act which caused the damage suffered by the crime victim for which restitution is to be ordered.

A criminal defendant becomes subject to an order of restitution only after he has been convicted. We acknowledge that the niceties of civil litigation (as discussed in the Richards case from California), such as discovery and the right to a jury determination of both liability and damages, are not provided to a criminal defendant at his sentencing hearing when the trial court decides what order of restitution to impose upon him. However, we regard the loss of these civil rights as part of the costs of being a convicted criminal. We note that the Code is filled with provisions whereby convicted criminals lose one or more of their civil rights: section 5 — 8—1 (imprisonment) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1); section 5 — 7—1 (periodic imprisonment) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—1); and section 5— 6 — 3 (probation and conditional discharge, providing for 24 separate conditions that the court can impose, such as a fine, restitution, public service work, home confinement, et cetera) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—3). Indeed, the loss of the due process rights provided to defendants in civil cases is one of the less significant losses that convicted criminals suffer.

We emphasize that the trial court should satisfy itself of the legitimacy of any claim for restitution, as well as the amount of the claim. Normally, the information provided to the court by the probation office in the presentence report should suffice. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—2(a)(3); see also Powell, 199 Ill. App. 3d at 294, 556 N.E.2d at 898.) However, if that information is disputed by some specific claim of inaccuracy (Powell, 199 Ill. App. 3d at 295, 556 N.E.2d at 899), then the trial court should conduct such further proceedings as it deems necessary to obtain trustworthy and reliable information upon which to base its order of restitution.

Consistent with the views we expressed in Strebin, we believe trial courts have a duty, to the extent possible, to order restitution to benefit victims so that they can avoid the bother, expense, and delay too often present in the civil justice system. This duty is mandated by the legislative intent underlying section 5 — 5—6 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6). The focus of concern for the courts ought to be that victims of crime, who have been forced to endure the suffering, inconvenience, and hardship frequently associated with that status, receive remuneration for the damages they have suffered. (See Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board (1991), 502 U.S._,_, 116 L. Ed. 2d 476, 488-89, 112 S. Ct. 501, 509 (“There can be little doubt *** that the State has a compelling interest in ensuring that victims of crime are compensated by those who harm them”).) Courts should be more concerned with the need to make whole the victims of crime rather than with the civil interests of convicted criminals.

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

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
    ROBERT G. RAUSCHENBERGER et al., Petitioners-Appellees v. BOARD OF EDUCATION, HERITAGE COMMUNITY UNIT SCHOOL DISTRICT No. 8, Successor to ABL Community School District No. 6, Respondent-Appellant (Regional Board of School Trustees of Champaign and Ford Counties et al., Defendants-Appellees).
    Fourth District
    No. 4 — 91—0101
    Opinion filed December 31, 1991.
    John T. Taylor and Merry C. Rhoades, both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Decatur, for appellants.
    Daniel J. Walsh, pro se, of Urbana, for appellees Daniel J. Walsh et al.

   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Our decision here is controlled by the well-accepted legal principles that (1) in determining finality of decisions, civil law standards are applicable to administrative review (Wilkey v. Illinois Racing Board (1983), 96 Ill. 2d 245, 249-50, 449 N.E.2d 843, 844-45); and (2) where a higher court renders a final decision and remands to another tribunal and a subsequent appeal is taken from the decision of that tribunal, the new appeal concerns only the question of whether the new disposition conforms to the mandate and the propriety of any decisions on issues left open by the mandate. (Serbian Eastern Orthodox Diocese v. Milivojevich (1979), 74 Ill. 2d 574, 387 N.E.2d 285; People ex rel. Maeras v. Chicago, Burlington & Quincy R.R. Co. (1967), 36 Ill. 2d 585, 224 N.E.2d 248.) Application of these principles prevents us, at this stage, from passing upon the merits of the dispute between the parties.

The case involves confusing questions of school law, administrative procedure, and appellate procedure. The State Board of Education approved a petition for Homer Community Consolidated School District (Homer) and Allerton-Broadlands-Longview School District (ABL) to seek voter approval to consolidate to form Heritage Community School District No. 8 (Heritage). The proposition met voter approval and the consolidation was set to begin with the 1989-90 school year. Prior to the election of a governing board for Heritage, petitioners, acting pursuant to section 7 — 2 of the School Code (Code) (Ill. Rev. Stat. 1989, ch. 122, par. 7 — 2), filed four petitions with the Regional Board of School Trustees of Champaign County on January 24, 1989. They sought detachment of certain land from Homer (and thus from Heritage). They requested the land be annexed to St. Joseph-Ogden High School District and one of two districts providing elementary schools. As Heritage was not yet fully organized, ABL filed objections to those petitions.

As we later explain, the provisions of section 7 — 2 of the Code required the petitions to be heard before the four regional boards of school trustees (regional boards) who are respondents here. Before that was done, one of the petitions was withdrawn. A majority of the members of each of the boards voted to grant the petitions. However, as subsequently explained, such a vote did not constitute a granting of the petitions, but an order mistakenly was entered granting the three petitions. On April 19, 1989, Heritage filed a petition in administrative review before the circuit court of Champaign County pursuant to section 7 — 7 of the Code (Ill. Rev. Stat. 1987, ch. 122, par. 7— 7). On December 13, 1989, the circuit court entered a judgment directing the regional boards to deny the petitions. Acting pursuant to the mandate of that order, the regional boards entered an order on January 29, 1990, denying the petitions. Then, on March 5, 1990, petitioners filed a petition in administrative review from that order in the circuit court of Champaign County. After a hearing, that court entered an order on November 16, 1990, setting aside the order entered by the regional boards on January 29, 1990, pursuant to the circuit court’s earlier mandate. The circuit court then directed the regional boards to grant the requested change of boundaries.

The circuit court’s decision of November 16, 1990, was based upon its consideration of the evidence before the regional boards and the court’s determination their decision was contrary to the manifest weight of the evidence. Petitioners have appealed contending that the earlier December 13, 1989, judgment of the circuit court precluded its later consideration of the manifest weight of the evidence. We agree with petitioners. We conclude that in the second appeal, the circuit court was precluded from considering anything other than whether the regional boards had followed the mandate of its earlier judgment and entered the required order denying the petitions. Accordingly, we reverse.

The first confusing aspect of the case arises from the unique provisions of section 7 — 2 of the Code. Here, the boundaries of ABL go into four educational service regions. Section 7 — 2 of the Code requires that when a change of boundary is requested as to a district having land in multiple-educational service regions, the issue shall be decided by the regional boards for those regions and that change can be allowed only upon “concurrent action of *** the regional boards *** of each region affected.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 122, par. 7 — 2.) The parties do not dispute that each of the regional boards involved had to separately approve the boundary change.

Section 6 — 18 of the Code states that “[ujnless otherwise provided a majority vote of all [of a regional] board shall be required to decide a measure.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 122, par. 6— 18.) In Calvert v. Board of Education of Elementary School District No. 14 (1963), 41 Ill. App. 2d 389, 190 N.E.2d 640, this court held that section 6 — 18 of the Code required a majority vote of an entire county board of school trustees to approve a boundary change. On this appeal, petitioners do not challenge that a majority vote of the entire membership of each regional board was required to approve the proposed boundary change and that vote was not achieved.

Here, a majority of the entire membership of three of the four respondent regional boards approved the proposed boundary change. The Regional Board of School Trustees of Vermilion County had only four of its seven members present to vote on the petition and only three voted in favor of the change. Accordingly, the proposed boundary change failed to pass that regional board (Calvert, 41 Ill. App. 2d at 395, 190 N.E.2d at 643) and, thus, under the provisions of section 7 — 2 of the Code, the effect of the action of the combined regional boards was to deny the request for boundary change. The legislative format indicates a likely legislative intent that boundary changes not be granted easily, but misunderstanding as to the majority required may well have accounted for the fact that although a substantial majority of those voting in regard to the proposed boundary change approved the proposition, it did not pass. The confusion was compounded when the educational service region’s superintendent acting as secretary for the regional boards interpreted the vote as being sufficient to allow the boundary change and entered an order on January 30, 1989, approving the boundary change. This is the order from which the first administrative review was taken.

On the first administrative review, Heritage maintained the order of the regional board granting the change (1) was contrary to the manifest weight of the evidence; (2) “contrary to law”; and (3) erroneous because the relief granted had not been approved by a majority vote by the entire membership of each of the regional boards. After a hearing, the circuit court entered an order on December 13, 1989, which contained the following decretal paragraph:

“Accordingly, the joint orders of the various Regional Boards of School Trustees of Champaign and Ford Counties; Clark, Coles, Cumberland, Edgar, Moultrie and Shelby Counties; Douglas and Piatt Counties, and Vermilion County, granting Petition 1989, No. 1 (89 — L—473); Petition 1989, No. 2 (89 — L— 475), and Petition 1988, No. 4 (89 — L—474) are hereby REVERSED. These causes, and each of them, are hereby REMANDED to the Regional Board of School Trustees of Champaign and Ford Counties, with instructions that that Board enter an Order denying the petitions in each of these cases.”

In another portion of its order, the circuit court explained its reasoning in these words:

“The Administrative Review Act confers powers of considerable breadth upon circuit courts, including the power to realign parties. (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 111.) However, this power of realignment does not extend so far as to permit a total transmutation of the procedural posture of a cause of review. Circuit Court jurisdiction under the Act extends to review of final decisions, in this case the joint orders entered below. To reverse the orders on review, and then proceed to review the evidentiary basis of the resultant constructive denial of the petitions, would usurp the powers of the regional boards delegated by the legislature, and would far exceed the scope of those powers conferred upon me by the Act. In short, reversal of the orders on the instant grounds leaves the court nothing to review further. ’ ’

Under the court’s theory, it was precluded from considering the petitioners’ argument that the mistakenly entered order of the regional board granting which purported to grant the boundary change was correct because that outcome was required by the manifest weight of the evidence. By the court’s reasoning, petitioners would have been better off if the form of the regional board’s order had been against them, for then, clearly, they could have argued that decision was contrary to the manifest weight of the evidence. Illinois law is clear that a court order may be upheld on any grounds required by the record even though those grounds were not the ones which were the basis of the court’s decision. (Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1953), 414 Ill. 275, 111 N.E.2d 329; Harrison v. Kamp (1946), 395 Ill. 11, 69 N.E.2d 261.) The foregoing rule is applicable also to review of administrative decisions. Illinois Bell, 414 Ill. 275, 111 N.E.2d 329; 2 Am. Jur. 2d Administrative Law §756, at 657 (1962).

We conclude that on the first judicial review, the circuit court did have jurisdiction (1) to consider whether the regional board’s decision which actually denied the boundary change was contrary to the manifest weight of the evidence, and (2) to uphold that order on that basis if that was so.

The December 13, 1989, judgment of the circuit court was a final judgment appealable pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301). The decretal portion thereof clearly disposes of the entire proceeding by directing an entry of an order denying the boundary change. The task left to be performed on remand was purely ministerial. In determining the finality and appealability of such an order on judicial review of an administrative decision “ ‘[t]he ultimate question to be decided in each case is whether the judgment fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined.’ ” Wilkey, 96 Ill. 2d at 249, 449 N.E.2d at 844, quoting Cory Corp. v. Fitzgerald (1949), 403 Ill. 409, 415, 86 N.E.2d 363, 366.

Accordingly, when the regional boards later entered the mandated order and a new judicial review was taken to the circuit court, that court could then only consider whether the mandate of its earlier order had been followed. (Wilkey, 96 Ill. 2d 245, 449 N.E.2d 843; Milivojevich, 74 Ill. 2d 574, 387 N.E.2d 285; Maeras, 36 Ill. 2d 585, 224 N.E.2d 248.) On the second judicial review, the circuit court erred in considering whether the denial of the boundary changes was against the manifest weight of the evidence. Right or wrong, in the first judicial review the circuit court had indicated it did not have jurisdiction to consider the matter and no appeal was taken from that appealable judgment. The instant appeal cannot be deemed as being from the earlier circuit court judgment because the time for appeal from that judgment had long expired when the instant appeal was taken.

Petitioners maintain the original order of the regional boards was void because it was not responsive to the statutory requirement that the petitions could be allowed only upon a vote of a majority of all the members of each of the regional boards. We recognize that the jurisdiction of an administrative agency is limited by the authority granted by statute. (Business & Professional People for the Public Interest v. Illinois Commerce Comm’n (1989), 136 Ill. 2d 192, 243, 555 N.E.2d 693, 716.) However, not every deviation from statutory requirements deprives the agency of jurisdiction. (Newkirk v. Bigard (1985), 109 Ill. 2d 28, 485 N.E.2d 321.) In any event, here, regardless of whether the original order of the regional board was void, the circuit court had power to pass upon its validity and entered a judgment setting that order aside and directing the entry of an order conforming to the vote. That judgment of the circuit court was not void and that judgment and not the original regional boards’ order is what prevents the circuit court from plenary review of the regional boards’ mandated decision.

For the reasons stated, we reverse the November 16 judgment of the circuit court of Champaign County from which appeal is taken.

Reversed.

STEIGMANN and KNECHT, JJ., concur.


text:
    JOSEPH WILLIAM SPENCER, Plaintiff-Appellant, v. KATHERYN SCOTT, Indiv. and as Ex’r of Estate of David L. Scott, Deceased, Defendant-Appellee (Ben Ray Scott et al., Defendants; Magna Millikin Bank of Decatur, N.A., as Successor in Interest to Northtown Bank of Decatur and Northtown Bank and Trust, Counterplaintiff-Appellee; Katheryn Scott Mauk, Indiv. and as Ex’r of the Estate of David L. Scott, Deceased, et al., Counterdefendants; Scott State Bank, Counterdefendant-Appellee; Joseph William Spencer et al., Counterdefendants-Appellants).
    Fourth District
    No. 4 — 91—0410
    Opinion filed December 30, 1991.

      David C. Nelson, of Dilsaver, Nelson & Winter-Black, and David Y. Eberspacher, of Heller, Holmes, Hefner & Eberspacher, Ltd., both of Mattoon, for appellants.
    Richard L. Heavner, of Heavner, Handegan & Scott, of Decatur, for appellee Katheryn Scott Mauk.
    Darrel F. Parish, of Roberts, Parish & Castleman, Ltd., of Decatur, for appellee Scott State Bank.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal by Joseph William Spencer, Joseph Wayne Spencer, and Anna Marie Owens (the Spencers and Owens) from the order of the circuit court of Moultrie County dated January 14, 1991, granting the motion of defendants Scott State Bank (Scott Bank) and Katheryn Scott (Katheryn) to dismiss plaintiffs’ complaint to foreclose mortgages, and the order of May 6, 1991, denying the motion for reconsideration.

Facts

Katheryn’s deceased husband, David L. Scott, had executed mortgages to the Spencers and Owens, Magna Millikin Bank of Decatur (Magna), and the Federal Land Bank (FLB). For priority purposes, FLB was first; the Spencers and Owens, while having separate mortgages, agreed to be treated equally and were second; and Magna was third. After David died, FLB foreclosed and joined all the interested parties as defendants. The subject real estate was left to Katheryn by David’s will, and she was made a party defendant, both individually and as executor of David’s estate. The foreclosure orders granted FLB a judgment of $99,636.27, plus attorney fees and expenses. The lien of Joseph William Spencer was established in the amount of $24,669.99. Joseph Wayne Spencer’s lien was established and found to be $12,334.99. Anna Marie Owens’ lien was found to be $12,335. Magna failed to appear and was defaulted. The real estate was ordered sold, and the amount of liens of all the parties was ordered paid in the order of priority, subject to the sufficiency of sale proceeds. Rents during the redemption period were also to go toward deficiencies. While the priorities of the Spencer mortgages and their respective amounts were determined, there were no specific words foreclosing them. The Owens’ mortgage was foreclosed in the FLB proceeding.

On December 1, 1986, a judicial sale was held and the real estate was sold to a separate party for $73,900. Shortly before the expiration of the redemption period, Katheryn, in her individual capacity, redeemed the property and subsequently conveyed a mortgage on the premises to Scott Bank, securing a loan made for the purposes of furnishing funds for the redemption.

Evidently, after Katheryn’s redemption, the question was raised as to whether the redemption gave her clear title. She sought to foreclose what she thought to be an equitable lien created by making the redemption payment. The action seeking that relief was dismissed by the trial court, and the trial court decision was affirmed by this court in Scott v. Scott (1989), 179 Ill. App. 3d 489, 534 N.E.2d 174. Appellants’ contention that that opinion has res judicata effect in the present case will be discussed later.

I

We first address whether the foreclosure action brought by FLB and the subsequent judicial sale resulted in the real estate being freed from the liens of the junior mortgages, absent a redemption by the original mortgagor. The redemption by Katheryn was authorized by section 12 — 122 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 12 — 122). That section specifically allows redemption by heirs, executors, administrators, and assigns of a mortgagor. Junior lienholders are authorized to redeem within three to six months after the sale, in the absence of a redemption pursuant to section 12 — 122 of the Code. (See Ill. Rev. Stat. 1985, ch. 110, par. 12— 122.) A redemption under the provisions of section 12 — 122 of the Code can also follow a redemption under section 12 — 132 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 12 — 132). (See Ill. Rev. Stat. 1989, ch. 110, par. 12 — 137.) Nothing in the statute prohibits lienholders from bidding at the judicial sale ordered by the court.

To determine the question now before us, we look at the basic rules relating to redemptions and mortgage liens. When the mortgagor redeems, the same property may again be subject to the unpaid balances of various mortgages and liens — not because of the right to enforce the mortgage lien, but because the law subjects all property of a debtor to the payment of his or her unsatisfied debt. (Ogle v. Koerner (1892), 140 Ill. 170, 179-80.) When one not liable on the debt redeems after the mortgage lien is exhausted, the real estate is free from the lien. (Koerner, 140 Ill. at 180.) While the dispute in Koerner was between the senior mortgagees, with a deficiency and the redeeming junior lienholder against whom they sought recovery, it would appear the same principle enunciated applies in the present case.

The Spencers and Owens were made parties to the foreclosure action, and their interests and priorities were determined by the court’s order. If the sale proceeds had been adequate, their claims would have been paid pursuant to the order of the court — that order being binding upon the mortgagor and the various lienholders. The order was, in effect, a judgment.

The statement in Koerner that the senior mortgagee “was a competent bidder at such sale, and therefore had it in his power to bid the property up to its fair cash value, and if he failed to do so, a presumption arises from which he can not escape, that the property sold for what it was reasonably worth” (Koerner, 140 Ill. at 180), equally applies to the junior lienholders now appealing in the present case.

The decision in Hack v. Snow (1929), 338 Ill. 28, 169 N.E. 819, is cited in Scott (179 Ill. App. 3d at 491, 534 N.E.2d at 176) for the following proposition: “A redemption made by the debtor or his grantee leaves the property subject to all other liens existing at the time of the sale which are not ordered paid by it.” The Hack opinion states:

“This, of course, is true where the decree orders the payment of all the liens and a sale is ordered for all such liens, the sale made, a certificate of purchase issued, no redemption made and deed issued. In that case, no redemption having been made, all the title which the mortgagor had at the time of the making of the mortgage, and all liens subsequent to the making of the mortgage, are wiped out and the purchaser takes the fee in the property unencumbered of such liens. In the instant case the decree did not order Liesik’s judgment paid nor order the sale of the property for the payment thereof. The property was redeemed, and by virtue of the statute the mortgage, its foreclosure, the sale and the certificate of purchase became null and void and the property freed from the lien thereof but subject to Liesik’s judgment lien. Liesik having a valid judgment lien upon the property was entitled to have the property sold in satisfaction thereof.” Hack, 338 Ill. at 32, 169 N.E. at 820.

We conclude that the determinative words relate to the failure to order the junior liens paid, not the presence of the redemption. Any contrary determination necessarily requires an inequitable result. The statutory redemption provisions we have cited allow the junior lienholder the possibility of a right of redemption. The court proceedings provided the junior lienholders with ample opportunity to litigate their interests. Their rights were established, and payments ordered made to them if funds were available. They had the opportunity to purchase at the judicial sale. They did not seek to redeem from that sale. If we now allow foreclosure on the mortgages as primary lien-holders, we put an innocent third party in a position of contributing $77,000 of new money to those whom the decedent died owing. A decision contrary to the contentions of the Spencers and Owens appears consistent with most authorities. (See G.E. Osborne, Osborne’s Handbook on the Law of Mortgages, ch. 12, par. 309, at 641-42 (2d ed. 1970).) We therefore conclude the trial court’s orders, which dismissed claims of the Spencers and Owens and denied the motion for reconsideration, were proper.

II

In their motion to dismiss the Spencers’ and Owens’ present action for foreclosure, Katheryn and Scott Bank contend the foreclosures are barred as a result of FLB’s foreclosure action. The Spencers and Owens contend Katheryn’s action in seeking to foreclose her “redemption lien” (see Scott, 179 Ill. App. 3d at 490, 534 N.E.2d at 175) has a res judicata effect on the question of whether their junior mortgages are now valid and enforceable liens that can be foreclosed. Katheryn’s 1987 complaint to foreclose, based upon her alleged lien created by the redemption payment, listed the Spencers’ and Owens’ mortgages as junior liens to her alleged equitable lien. Katheryn’s complaint to foreclose was dismissed by the trial court, and the trial court’s decision was affirmed in Scott.

A decree operates as res judicata of the claim presented in a later case when the facts and relief sought in both actions are substantially the same. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 254, 461 N.E.2d 959, 963.) The 1987 action by Katheryn was terminated based upon the determination that Katheryn, as the devisee under the mortgagor’s will, took title as a grantee from the mortgagor and would not be able, based upon the redemption, to claim an equitable lien which would be superior to other existing liens. (Scott, 179 Ill. App. 3d at 491-92, 534 N.E.2d at 176.) The status of the alleged junior liens was not litigated because Katheryn’s complaint was dismissed before an evidentiary hearing. Because the trial court decision, and the appellate decision affirming it, did not determine the viability of the junior liens, the 1987 action cannot be considered a prior adjudication of the issue. Furthermore, for the reasons set forth in this opinion, it appears that the FLB proceedings were res judicata as to the issue of current ability to foreclose the junior liens.

The trial court’s dismissal and subsequent denial of the motion to reconsider are affirmed.

Affirmed.

STEIGMANN and KNECHT, JJ., concur.