source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    TODD R. MILLS, Plaintiff-Appellee, v. JIM EDGAR, State of Illinois, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4-88-0559
    Opinion filed February 2, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Respicio F. Vazquez and Stephen J. Rotello, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    Michael H. Vonnahmen, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiff Todd R. Mills sought review in the circuit court of Sangamon County of an administrative decision by defendant Jim Edgar, Secretary of State, denying plaintiff’s petition for rescission of its previous order revoking plaintiff’s driver’s license. The circuit court reversed defendant’s decision, finding it was contrary to law, and subsequently ordered defendant to rescind the revocation of plaintiff’s driver’s license. Defendant appeals from that decision. We reverse.

The evidence in this matter indicates that, on July 27, 1987, the circuit court of Lake County in Leadville, Colorado, entered judgment on plaintiff’s plea of guilty to the offense of driving while ability impaired. (Colo. Rev. Stat. §42 — 4—1202(l)(b) (1984).) Upon learning of this conviction, the defendant entered an order revoking plaintiff’s Illinois driver’s license pursuant to section 6 — 205(d) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(d)). That section authorizes defendant to revoke the driving privileges of any person under the age of 21 who is convicted of driving under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 11 — 501.) Plaintiff petitioned defendant to rescind that order, but defendant denied his request as aforementioned.

By enactment of article VII of chapter 6 of the Code, Illinois entered into an agreement with various States creating a “driver license compact.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 700 et seq.) Through this compact, the licensing authority of a party State notifies the licensing authority of a home State whenever a licensee from the home State receives certain types of convictions for motor vehicle offenses in the party State. (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 702.) Colorado is also a party to this compact. Colo. Rev. Stat. §24 — 60— 1101 et seq. (1988).

For purposes of revoking a driver’s license, section 6 — 703(a) of the Code mandates the licensing authority in a home State to “give the same effect to the conduct reported [by a party State] *** as it would if such conduct had occurred in the home state,” in regard to various criminal convictions, including those for “[d]riving a motor vehicle while under the influence of intoxicating liquor.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 6 — 703(a)(2).) Section 6 — 703(c) of the Code states:

“If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in paragraph (a) of this Section, such party state shall construe the denominations and descriptions appearing in paragraph (a) hereof as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provision as may be necessary to ensure that full force and effect is given to this Section.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 703(c).

We conclude that the offense of driving while ability impaired, for which plaintiff was convicted in Colorado (Colo. Rev. Stat. §42— 4 — 1202(l)(b) (1984)), results from conduct “substantially similar” to conduct which would constitute driving while “under the influence of alcohol” as prohibited by section 11 — 501(aX2) of the Code. We reach this conclusion by a comparison of the statutory format of the two States in regard to penal provisions for persons who drive after having consumed alcoholic beverages.

Illinois law provides for a single offense of driving under the influence of alcohol or other drugs. Absent exceptional aggravating circumstances not applicable here, the offense is a misdemeanor. A person commits the offense when he ingests alcohol and drives with an alcohol concentration in blood or breath of 0.10 or more- of described units (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501(a)(1)) or when he drives while “[u]nder the influence of alcohol” (Ill. Rev. Stat. 1987, ch. 95V2, par. 11 — 501(a)(2)).

Colorado law, on the other hand, recognizes three offenses involving driving after consuming alcohol: (1) driving under the influence; (2) driving while impaired; and (3) driving with excessive alcoholic content. (Colo. Rev. Stat. §§42 — 4—1202(l)(a), (l)(b), (1.5)(a) (1984).) All are misdemeanors. The first occurs when a person drives “under the influence of intoxicating liquor.” (Colo. Rev. Stat. §42 — 4— 1202(l)(a) (1984).) The second offense occurs when a person drives “while such person’s ability to operate a vehicle is impaired by the consumption of alcohol.” (Emphasis added.) (Colo. Rev. Stat. §42 — 4— 1202(lXb) (1984).) The final offense occurs when “the amount of alcohol in [the blood of a person driving] is 0.15 or more.” Colo. Rev. Stat. §42-4-1202(1.5Xa) (1984).

The Colorado Supreme Court has concluded that the standard of proof for the offense of driving under the influence is impairment to a “substantial degree” (emphasis added) (Thompson v. Colorado (1973), 181 Colo. 194, 201-02, 510 R2d 311, 314), while the standard of proof for the offense of driving while impaired is impairment to the “slightest degree” (emphasis added) (Thompson, 181 Colo, at 199, 510 P.2d at 313). An Illinois pattern jury instruction defines the term “under the influence of intoxicating liquor” as follows: “A person is under the influence of intoxicating liquor when as a result of drinking any amount of intoxicating liquor his mental and/or physical faculties are so impaired as to reduce his ability to think and act with ordinary care” (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, No. 23.05, at 530 (2d ed. 1981).

Comparison of the two definitions indicates that one guilty of driving while impaired under Colorado law is guilty of driving under the influence in Illinois. When one’s ability to perform a function is impaired, it is reduced. If the ability is only slightly impaired, it is only slightly reduced. If it is substantially impaired, it is substantially reduced. The Illinois pattern instruction appears to state that any reduction in the ability of a motorist to drive is sufficient to support a conviction. Thus, a slight impairment which leads to a slight reduction in the motorist’s ability to drive is sufficient to support a conviction.

In both States, proof of a 0.05 or less concentration of alcohol gives rise to a conclusive presumption that the accused is not guilty of any of the offenses involved here. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 501.2(bXl); Colo. Rev. Stat. §42-4-1202(1.5Xa) (1984).) In Illinois, if the proof shows an accused drove with an alcohol content in his breath or blood of between 0.05 and 0.10, no presumption arises as to whether that person was under the influence of alcohol. On the other hand, under Colorado law a person with a 0.05 to 0.10 concentration is presumed to be guilty of driving while impaired. Thus, a person could be presumed guilty of driving while impaired in Colorado under circumstances where that person’s guilt of driving under the influence would be a question for the trier of fact in Illinois. This gives some indication that the Colorado driving while impaired provision covers some conduct which would not be considered driving under the influence in Illinois. However, Illinois permits convictions of driving under the influence when the accused has a blood-alcohol content of only 0.05.

Despite the difference between the lowest level of alcohol content at which a presumption arises, we find the minimum conduct giving rise to the offenses of the lesser Colorado offense and the driving under the influence offense in Illinois to be “substantially similar” within the meaning of section 6 — 703(c) of the Act. Ill. Rev. Stat. 1987, ch. 95V2, par. 6-703(c).

Plaintiff maintains that, if he were charged with driving under the influence in Illinois, and his impairment was no worse than that which would have merely constituted driving while impaired under Colorado law, he would likely have been placed on supervision (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—1(c); compare Colo. Rev. Stat. §16 — 7—403 (1986)), no conviction would have been obtained, and he would not have lost his driving privileges. This supposition is too speculative to be of assistance in deciding the issue before us. Moreover, section 6— 703 of the Code, which provides for reciprocal powers of license revocation, indicates the “conduct” giving rise to the offenses in the various States is the element to compare and not the penalties.

The defendant seeks to support the action revoking plaintiff’s driver’s license by evidence that a test made of plaintiff’s blood immediately after the Colorado offense indicated a blood-alcohol concentration of 0.153. We need not decide whether such evidence is properly before us. The defendant is permitted to act under sections 6 — 702 and 6 — 703 of the Code upon the basis of a conviction in another State. As we have indicated, the comparison with Illinois law which must be made to determine whether the person’s driver’s license is subject to revocation is the conduct inherent in the offense for which the conviction was obtained and not conduct which might indicate the commission of a more serious offense. Defendant’s case is not enhanced by this evidence.

As we have indicated, we reverse the judgment of the circuit court which reversed the decision of defendant to revoke the plaintiff’s driver’s license. The decision of the defendant is affirmed.

Circuit court reversed, Secretary of State affirmed.

McCULLOUGH, P.J., and SPITZ, J., concur. .


author: JUSTICE WOMBACHER

text:
    BENJAMIN GATLIN, by his Mother and Next Friend, Marla Gatlin, Plaintiff-Appellant, v. BERNARD RUDER, Defendant-Appellee (Riverside Medical Center, Defendant).
    Third District
    No. 3-87-0809
    Opinion filed January 31, 1989.
    Stephen Masters, of Stephen Masters & Associates, of Joliet, and Leonard M. Ring, of Leonard M. Ring & Associates, of Chicago (Margaret A. McGuire, of counsel), for appellant.

      J. Dennis Marek, of Ackman, Marek, Boyd & Simutis, of Kankakee (Robert W. Boyd, of counsel), for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

On July 29, 1974, the plaintiff, Benjamin Gatlin, was delivered as a live birth by caesarean section at Riverside Medical Center by Dr. Bernard Ruder.

Subsequent to the birth it was discovered that the plaintiff had scratches and a bruise on his head. A small abrasion was later noted on his right ear. Today the plaintiff suffers from cerebral palsy.

The plaintiff, through his mother, filed a medical malpractice cause naming the hospital and Dr. Ruder as defendants.

Based upon the testimony of the plaintiff’s expert, a pediatric neurosurgeon, a motion for summary judgment was granted in Dr. Ruder’s favor. The expert had stated that the plaintiff had sustained his injuries while in the care of the hospital personnel, and not during the birth process.

Six months later the plaintiff deposed Dr. Kenneth Niswander, a professor of clinical obstetrics at the University of California at Davis. Dr. Niswander, testifying as the hospital’s expert, stated that the probable cause of the plaintiff’s head injury would be the • hands of the obstetrician. Based upon the statements of Dr. Niswander, the plaintiff filed a motion to vacate the summary judgment entered in Dr. Ruder’s favor. The motion was denied and this appeal ensued.

In his affidavit submitted to the trial court, Dr. Niswander stated that Dr. Ruder performed his services within the standard of care required of such obstetricians. He specifically noted:

“[I]t would be my testimony at trial that, in my opinion, Dr. Ruder was well within the area of the standard of care and that nothing that he would have done prior to handing the child to the anesthesiologist would have been below the required standard of care. The anesthesiologist received the child in excellent condition, according to the medical records and at that point, Dr. Ruder’s duties with regard to the birth of Benjamin Gatlin would have been completed.”

There is lack of evidence as to the abrogation of Dr. Ruder’s duty to provide competent medical services. Dr. Niswander’s statements fail to raise an issue of material fact regarding the necessary elements required to maintain a malpractice cause against Dr. Ruder. In a medical malpractice case, the plaintiff must prove that it is more probably true than not true that the defendant’s negligence was a proximate cause of the plaintiff’s injury. (Russell v. Subbiah (1986), 149 Ill. App. 3d 268, 500 N.E.2d 138.) The proffered testimony lacks evidentiary value to sufficiently support a vacatur order.

The plaintiff next asserts that his complaint pled that the injury gave rise to an inference of negligence on Dr. Ruder’s part pursuant to the doctrine of res ipsa loquitur. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1113.) He asserts that the summary judgment order should have been barred by the inference of negligence suggested under the doctrine.

Res ipsa loquitur is applicable in medical malpractice cases where the conduct of the doctor is grossly remiss or so contrary to acceptable and customary medical practices and standards shown of record that results or injuries complained of would not have occurred but for negligence. Estell v. Barringer (1972), 3 Ill. App. 3d 455, 278 N.E.2d 424.

The doctrine of res ipsa loquitur is a rule of evidence. It is not to be invoked to overcome evidence, but is to be applied in its absence. The doctrine is an exception to the general rule that negligence is not to be presumed, but must be affirmatively proved.

The plaintiff has failed to establish that it is more probable that Dr. Ruder caused his injuries, and not the hospital personnel. The application of the doctrine has been foreclosed regarding the instant defendant and summary judgment was properly extended.

For all of the foregoing reasons, the judgment of the circuit court of Kankakee County is affirmed.

Affirmed.

SCOTT and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE

text:
    JAMES R. PAGLIS et al., Plaintiffs-Appellants, v. AUGUST BLACK et al., Defendants-Appellees.
    Third District
    No. 3-88-0430
    Opinion filed February 3, 1989.
    George M. Stuhr, of Rudman & Subuco, of Joliet, for appellants.
    James R. Fabrizio, of Garrison, Fabrizio & Hanson, Ltd., of Joliet, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

The trial court dismissed with prejudice the plaintiffs’ claim against the defendants, August Black, George Black, Frank Black, Donald Black, and Black & Black, on the ground that the plaintiffs were not diligent in obtaining service of process on the defendants. The plaintiffs, James R. Paglis, James P. Paglis, and Paglis Buick Cadillac, Inc., appeal. We affirm.

On September 30, 1987, the plaintiffs sued the defendants on two counts of legal malpractice. On April 19, 1988, the defendants moved to dismiss the lawsuit with prejudice on the ground that the plaintiffs were not diligent in obtaining service of process. In their motion, the defendants alleged the following facts: (1) that the two counts of the cause of action occurred on October 1 and October 26, 1982; (2) that the cause of action had a five-year statute of limitations period; (3) that the complaint was filed shortly before the running of the statute of limitations; (4) that the plaintiffs did not obtain issuance of the summonses until March 15, 1988; (5) that the plaintiffs knew that the defendants had a law office in the Grundy County National Bank building in Morris, Illinois; and (6) that after the plaintiffs obtained issuance of the summonses, the defendants were served process within nine days.

In their answer to the motion, the plaintiffs conceded all of the foregoing facts. At the hearing on the motion, the plaintiffs offered no explanation for the delay in obtaining service of process, but argued that under the circumstances they were reasonably diligent in obtaining service. The trial court granted the defendants’ motion.

On appeal, the plaintiffs argue that the trial court abused its discretion in dismissing the complaint with prejudice. The plaintiffs reiterate their argument made at trial that under the circumstances they were reasonably diligent in obtaining service of process. They also emphasize that the 51/2-month period of delay between the filing of the complaint and the issuance of the summonses was shorter than the periods of delay in other cases where the court found the plaintiff to be reasonably diligent. See, e.g., Dupon v. Kaplan (1987), 163 Ill. App. 3d 451, 516 N.E.2d 727.

Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)) provides that an action shall be dismissed with prejudice if a plaintiff’s failure to exercise reasonable diligence to obtain service of process occurs after the expiration of the statute of limitations. The purposes of the rule are to protect defendants from unnecessary delays in the service of process, to prevent the circumventing of the statute of limitations, and to expedite the handling of lawsuits. (Viking Dodge Inc. v. Hofmann (1987), 161 Ill. App. 3d 186, 514 N.E.2d 248.) The factors to be considered in determining whether a plaintiff has exercised reasonable diligence are: (1) the length of time used to obtain service; (2) the activities of the plaintiff; (3) the plaintiff’s knowledge of the defendant’s location; (4) the ease with which the defendant could be located; (5) the defendant’s actual knowledge of the action; and (6) special circumstances which would affect the plaintiff’s efforts. North Cicero Dodge v. Victoria Feed Co. (1987), 151 Ill. App. 3d 860, 503 N.E.2d 868.

The standard for determining reasonable diligence is an objective one, and the burden is on the plaintiff to show that he was diligent. (North Cicero Dodge, 151 Ill. App. 3d at 863, 503 N.E.2d at 870.) The decision to dismiss for lack of diligence is within the sound discretion of the trial judge. North Cicero Dodge, 151 Ill. App. 3d at 863, 503 N.E.2d at 870.

In the instant case, the plaintiffs filed suit shortly before the statute of limitations expired. They then waited SMz months before attempting to obtain service of process on the defendants. The plaintiffs conceded that they knew where the defendants’ offices were located, but offered no explanation for the delay. These facts establish a lack of reasonable diligence in obtaining service of process. We therefore find that the trial court did not abuse its discretion in dismissing the plaintiffs’ action with prejudice.

The judgment of the circuit court of Will County is affirmed.

Affirmed.

STOUDER, P.J., and WOMBACHER, J., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. WOLF, Defendant-Appellant.
    Third District
    No. 3-87-0384
    Opinion filed February 3, 1989.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The trial court declared a mistrial after finding that the jury was deadlocked. On retrial, a second jury convicted the defendant, Thomas E. Wolf, of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3). The trial court then sentenced him to five years in prison. The defendant appeals.

On appeal, the defendant first contends that his retrial was barred by the double jeopardy clauses of the United States and Illinois Constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10.) Specifically, he argues that the trial court abused its discretion by declaring a mistrial after less than two hours of deliberations and without giving a Prim instruction to the deadlocked jury. People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601.

When in the trial court’s opinion a jury is hopelessly deadlocked, it may properly discharge the jury. (People v. Howard (1984), 121 Ill. App. 3d 938, 460 N.E.2d 432.) In determining how long a jury should be permitted to deliberate before a mistrial is declared and the jury is discharged, no fixed time can be prescribed, and great latitude must be accorded to the trial court in the exercise of its informed discretion. (People v. Preston (1979), 76 Ill. 2d 274, 391 N.E.2d 359.) In the absence of an abuse of discretion by the trial court when it discharges a jury because of its failure to reach a verdict, reprosecution is not barred. People v. Bean (1976), 64 Ill. 2d 123, 355 N.E.2d 17.

The instant record shows that the defendant’s original trial was declared a mistrial when the jurors agreed, under questioning from the court, that they could not reach a verdict. While the jurors had deliberated just under two hours, the foreman stated that the jury was not likely to reach a verdict and the individual jurors agreed that there was no possibility of their reaching a verdict. Under the circumstances, we find no abuse of discretion in the trial court’s declaration of a mistrial. Additionally, the mere failure to give a Prim instruction to a deadlocked jury is not reversible error. (People v. Palmer (1984), 125 Ill. App. 3d 703, 466 N.E.2d 640.) Accordingly, the defendant was not placed in double jeopardy by the subsequent retrial.

The defendant’s second argument on appeal is that the prosecutor’s gross misconduct requires this court to reverse the defendant’s conviction.

The incident in question arose out of the defendant’s impeachment of a key State witness, who claimed that the defendant had admitted committing the charged crime and had stated that he gained access to the victim’s residence by throwing a brick or rock through a window. Peoria police officers Dennis Galloway and Walter Jatkowski both testified for the defense that they had not found any rock or brick used to gain entry. In his closing arguments, defense counsel noted that the State had failed to produce a brick or rock from the crime scene. During his rebuttal argument, the prosecutor placed a brick on his counsel table. However, before the prosecutor made any comment concerning the brick, defense counsel objected and asked for a hearing outside the presence of the jury. After the jury was removed, defense counsel moved for a mistrial because the brick had not been introduced into evidence. The State explained that the brick was to be used as demonstrative evidence. The court denied defense counsel’s motion and ordered the brick removed. After recalling the jury, the court admonished the jury that the brick had been removed, that it had nothing to do with the case, that it was not evidence, and that it was to be totally disregarded.

Initially, the State replies that the prosecutor’s conduct was not improper, because the brick could have been used as demonstrative evidence. We note that at trial the prosecutor never requested that the brick be admitted into evidence, nor did he object when the judge ordered the brick removed from sight. We therefore find the State’s argument unpersuasive. Vinke v. Artim Transportation System, Inc. (1980), 87 Ill. App. 3d 400, 408 N.E.2d 1112.

Second, the State argues that the error was cured by the judge's immediately sustaining the defense counsel’s objection and admonishing the jury to disregard the brick. Generally, a timely objection, followed by the court’s sustaining the objection and instructing the jury to disregard the improper evidence, will cure the error. (People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233.) In some instances, however, the prejudicial effect of inadmissible evidence cannot be cured by the court’s sustaining the objection and giving a cautionary instruction. People v. Gregory (1961), 22 Ill. 2d 601,177 N.E.2d 120.

In the instant case, the prosecutor displayed the brick after defense counsel noted in his closing argument that the two police officers involved in the case had testified that they never found any brick or rock which was used to gain entry. The prosecutor’s displaying the brick was highly prejudicial given its connection to the defendant’s impeachment of a key State witness and the fact that it occurred just prior to the jury’s deliberation. Under the circumstances of this case, we find that the prejudicial effect of the prosecutor’s conduct was not cured by the trial court’s instructions to the jury. We further find that the error was not harmless beyond a reasonable doubt. People v. Suane (1987), 164 Ill. App. 3d 997, 518 N.E.2d 458.

For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County and remand this cause for a new trial.

Reversed and remanded.

WOMBACHER and HEIPLE, JJ., concur.


author: JUSTICE HEIPLE WOMBACHER, J., JUSTICE BARRY,

text:
    THE ROCK ISLAND BANK, Plaintiff-Appellee, v. TIMOTHY O. ANDERSON et al., Defendants (First Federal Savings and Loan Association of Davenport, Defendant-Appellant).
    Third District
    No. 3-88-0184
    Opinion filed February 3, 1989.
    BARRY, J., dissenting.

      Conway & Shoemaker, of Aledo (Dwight L. Shoemaker, of counsel), for appellant.
    Michael J. Galvin, of Rock Island, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This case presents a controversy between two financial institutions, each of whom claim a preferred security interest in a mobile home. For purposes of clarity, we do not discuss extraneous and immaterial details appended to the dispute. The simple scenario is that the Andersons purchased a mobile home from the defendant, First Federal Savings and Loan Association of Davenport, Iowa (First Federal), on October 28, 1982. Pursuant to statute, First Federal perfected its security interest in the mobile home by filing same with the Illinois Secretary of State and obtaining a notation on the title document to that effect. Ill. Rev. Stat. 1987, ch. 951/2, par. 3 — 202(b).

Some three months later, the Andersons placed the mobile home on leased ground in Mercer County, Illinois. They next proceeded to place it on a cinder block foundation, add a room to it and build an attached garage.

Almost three years later, in August of 1985, the Andersons borrowed money from the Rock Island Bank (Bank). For its security, the Bank took a trust deed along with an assignment of the leasehold interest where the mobile home was situated. What next occurred was that the Andersons defaulted on their loan with the Bank and the Bank filed a complaint to foreclose their trust deed.

At a hearing on that foreclosure suit, the trial court found a priority lien in favor of the Bank and against First Federal, assigning as a reason that First Federal was required to make a second filing of its security claim once the mobile home became attached to the real estate. (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 313(7).) We disagree.

The trial judge also ruled that the Bank could not pursue its foreclosure because the Bank possessed only a leasehold interest and not the fee interest in the real estate. Again, we disagree.

An analysis of the statutory language relied on by the trial judge causes us to conclude that those statutory directives pertain only to persons who seek to obtain a security interest in a chattel which has not as yet been perfected. In the case at hand, however, the security interest of First Federal had been perfected some three years earlier. The statute relied on by First Federal provided that its security interest could be perfected by proceeding as it did. The statute uses the word “perfected.” Black’s Law Dictionary defines “per-feet” as “complete, finished, executed, enforceable, without defect, merchantable and marketable.” (Black’s Law Dictionary 1351 (3d ed. 1933).) It goes on to define a “perfect instrument” as “one that is good as to all the world.” (Black’s Law Dictionary 1351 (3d ed. 1933).) In short, having perfected its security interest according to statute, there was nothing further that First Federal need do. Its security interest was perfect as defined in Black’s Law Dictionary. That is to say, it was complete, finished and enforceable. It was good as to all the world.

Knowing that a mobile home already on the premises was to serve as security for a loan, the Bank could have protected itself by asking to see the title document and by checking with the Illinois Secretary of State. Had it done so, the prior lien of First Federal would have been discovered. First Federal, on the other hand, or any financial institution for that matter, is not in a position to continuously monitor and track the peregrinations of a mobile home. Nor are they required to do so.

Finally, we know of no reason why the Bank could not foreclose its trust deed whether or not it possessed the fee interest in the real estate. Of course, its interest would be no greater than the mortgagor could convey and that interest was, as we have indicated, inferior to the lien of First Federal.

For the reasons stated, the judgment of the circuit court of Mercer County is reversed and the cause is remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

WOMBACHER, J.,

concurs.

JUSTICE BARRY,

dissenting:

The issue we are asked to determine is whether a prior perfected security interest in a mobile home is entitled to priority over a later recorded lien on real estate to which the mobile home became affixed. The issue we are not asked to review is the extent of the Bank’s present foreclosure rights in the subject property. As I see it, the majority has chosen to second-guess a purely advisory opinion gratuitously decided by the trial court on the former issue. The majority then proceeds to express its disagreement with the trial court’s determination of the latter issue from which neither party has appealed. Under the circumstances, and for the further reason that I disagree with my colleagues on the merits, I respectfully dissent.

Although neither party has chosen to discuss appellate jurisdiction and the majority rejects the question of jurisdiction as extraneous and immaterial, a review of the procedural posture of this case readily reveals that the parties to this appeal have no right to appellate review.

It appears to me that the majority raises the question of the extent of the Bank’s foreclosure rights sua sponte and finds error as a predicate for reaching the “merits.” In my opinion, the circuit court correctly determined from the documents of record that the Bank’s present interest, in the leased property is merely possessory. In Illinois the law is well settled that a mortgagee’s right to actual possession and control of the mortgaged property upon default is not “automatic,” but must be invoked by a motion by the mortgagee in the foreclosure action. (Marcon v. First Federal Savings & Loan Association (1978), 58 Ill. App. 3d 811, 374 N.E.2d 1028, 1030, citing Ill. Rev. Stat. 1975, ch. 95, par. 22b.53 (now Ill. Rev. Stat. 1985, ch. 110, par. 15 — 303).) As noted by the Marcon court, “after a default and until [the mortgagee exercises its right to actual] possession, a mortgagee may discard the mortgage entirely.”

In the case before us, the Bank has not moved for an order entitling it to exercise its possessory right. By the terms of the lease, the Bank may acquire an option to purchase the subject real estate for $15,000 (credit given for all prior rent payments) after January 1, 1989. On the other hand, the Bank may choose never to acquire a greater interest in the real estate. Unless and until the Bank exercises its rights based on its present interest or acquires a title interest in the property the Bank is not entitled to an order of foreclosure, judicial sale and other relief as sought in its complaint, and there is no actual conflict between the interests of the Bank and First Federal. Without a present, actual controversy between the parties, the issue we are asked to review is premature, or “moot” (In re Matter of Creager (1944), 323 Ill. App. 594, 56 N.E.2d 649, 652), and further discussion is merely advisory.

Nevertheless, in view of the positions assumed by the majority I am constrained to express my views on the “merits” of this appeal as well. The circuit court ruled that First Federal lost its priority by failing to make a fixture filing in the county office of the recorder of deeds pursuant to section 9 — 313 of the Uniform Commercial Code-Secured Transactions (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 313). Citing only to the authority of Black’s Law Dictionary (3d ed. 1933) and in direct defiance of section 9 — 313 of the Code, the majority has determined that First Federal’s 1982 perfection of its security interest in the mobile home as a motor vehicle gave it priority over all subsequent interests for all time.

The Code does not define “perfection” as such, but does require fixture filing for goods which are to become a fixture if a secured party is to maintain priority over conflicting interests of an encumbrancer or owner of real estate. (Ill. Rev. Stat. 1987, ch. 26, pars. 9— 302(l)(d), 9 — 313(4), (7).) The Code clearly contemplates changes in collateral and provides a simple solution for perfecting a security interest in a mobile home that the secured party contemplates will become affixed to land. The wary lender is advised to prefile its financing statement or mortgage in the county where the home is to become affixed, and this “fixture filing” will protect the secured party’s priority status as against subsequent encumbrancers of the real estate. Ill. Rev. Stat. 1987, ch. 26, pars. 9 — 313, 9 — 402.

Notwithstanding the foregoing statutory authority, I might agree that the Bank was precluded from denying First Federal’s priority lien if, in fact, (a) First Federal could not have contemplated that the mobile home would become affixed to realty; and (b) the Bank had knowledge that the residence on the subject property in 1985 had been a 1974 “double-wide” Fuqua mobile home prior to its attachment in 1983. (See Township of Commercial v. Block 136, Lot 2, Now Lot 13 (1981), 179 N.J. Super. 307, 431 A.2d 862 (citing New Jersey equivalent of Ill. Rev. Stat. 1987, ch. 26, par. 9 — 401).) But such facts are inapposite to this case.

According to defendant Tim Anderson, he apprised First Federal’s loan officer of his plans to affix the “double-wide” mobile home during negotiations for its sale in 1982. There is no evidence of record to the contrary. Yet the majority declares an iron-clad rule absolving First Federal of any duty to inspect its collateral or to give reasonable notice of its interest after the mobile home became affixed to the land.

The record establishes that when the Andersons moved the home to the subject real estate around January of 1983, they placed it on a cinder block foundation. They removed the tongue, re-sided it, re-roofed it, attached a garage and added a room. These improvements were completed in 1984 and were financed primarily by a “master loan” made by Rock Island Bank to the Andersons’ business operation known as Progressive Farms, Inc. There is no issue in this case as to when the home became a fixture. The parties agree that it was affixed to the land well before 1985 when the Andersons applied for the $22,500 loan which gave rise to this suit. Further, there is no indication of record that the home bore any resemblance whatsoever to a mobile home when the Andersons applied for the $22,500 loan. Nor is there any support of record for the majority’s conclusion that the Bank knew that its security had ever been on wheels. Yet the majority assumes that the Bank knew that a “mobile” home was on the subject real estate when it approved the loan in 1985 and places upon the Bank a duty to search the records of the Secretary of State.

In my opinion, a mobile home such as the one here at issue — that gives every appearance that it will become affixed to realty, and that the purchasers tell the financing officer they intend to affix to realty, and that in fact is thereafter affixed and never again “mobilized” — is precisely the type of “goods which are to become fixtures” for which a fixture filing is required for proper perfection under section 9 — 313 of the Code. Lacking any legal, factual or equitable support for the majority’s result, I would agree with the circuit court that, pursuant to section 9 — 313(7), First Federal’s chattel interest in the home in this case is subordinate to the Bank’s interest.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT W. PAULSGROVE, Defendant-Appellee.
    Third District
    No. 3-88-0032
    Opinion filed February 7, 1989.

      Greg McClintock, State’s Attorney, of Monmouth (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Robert W. Paulsgrove, was indicted in the circuit court of Warren County on the charge of obstruction of justice. The defendant filed a petition for discharge based on a violation of his statutory right to a speedy trial. The trial court granted the petition and ordered the charge against the defendant dismissed. It is from this order that the State appeals.

On June 2, 1987, the defendant filed a demand for a speedy trial. On July 27, 1987, a bill of indictment was returned charging the defendant with obstruction of justice. The next day notice was sent to defense counsel informing him of the arraignment scheduled for August 5, 1987. The defendant appeared with counsel on August 5 but refused to be arraigned until he was provided with discovery. The defense counsel argued that should the defendant be arraigned, that day he would be forced to waive any defects in the indictment or in the indictment process. The State asked the trial court judge to proceed with arraignment or to continue the case on the defendant’s motion. On that same day, the trial court judge granted the continuance on the court’s own motion.

On August 6, 1987, the defendant filed a motion for discovery. On August 12, 1987, an order was entered granting the defendant’s motion and giving the State 21 days to provide the defendant with discovery. On August 25, 1987, the State filed a response to the defendant’s motion for discovery and the case was set for arraignment on September 16, 1987. On September 9, 1987, the defendant filed a motion for additional discovery which was subsequently granted. On September 16, 1987, the defendant appeared with counsel, pleaded not guilty and demanded a jury trial. On October 26, 1987, the defendant filed a second motion for additional discovery which was also granted. On November 16, 1987, a pretrial hearing was held and the case was placed on the December 1987 jury trial calendar. On November 19, 1987, the State filed a motion for discovery which was granted. On December 2, 1987, the defendant filed a response to discovery. The next day, the defendant filed a motion to dismiss alleging that more than 160 days had elapsed since he filed his motion for a speedy trial on June 2. Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(b).

On December 23, 1987, a hearing was held on the defendant’s motion to dismiss. The prosecutor argued that the defendant’s refusal to be arraigned on August 5 resulted in a continuance of the arraignment until September 16, a delay of 42 days.. The prosecutor further argued that the defendant had no right to discovery prior to arraignment and that the delay resulting from the defendant’s refusal to be arraigned was time chargeable to the defendant, thereby tolling the speedy trial statute for a period of 42 days.

The defendant argued that, under Hlinois law, upon arraignment he would waive any defects in the indictment process. He further argued that the discovery rules become applicable following indictment and therefore he was entitled to discovery before arraignment.

The trial court granted the defendant’s motion, discharging the defendant. The court characterized the delay caused by the defendant’s refusal to proceed without discovery as a simple discovery request, which “in and of itself” is not delay chargeable to the defendant.

On appeal, the State argues that the trial court erred in granting the defendant’s motion to dismiss and in refusing to charge the defendant with the instant 42 days of delay. The State argues that although discovery rules become applicable after indictment, a defendant is not entitled to discovery before arraignment. The State also contends that a defendant is not entitled to discovery until he makes a written request for it.

In determining whether the defendant has occasioned a pretrial delay, the criterion used is whether the defendant’s acts in fact caused or contributed to the delay. (People v. Nunnery (1973), 54 Ill. 2d 372, 376, 297 N.E.2d 129, 130.) The defendant has the burden of affirmatively establishing a speedy trial violation. (People v. Jones (1984), 104 Ill. 2d 268, 472 N.E.2d 455.) A defendant’s refusal to proceed may constitute delay occasioned by the defendant. People v. Too-late (1977), 48 Ill. App. 3d 1038, 363 N.E.2d 640.

We find that any delay occasioned by the defendant’s refusal to proceed with arraignment should have been charged to the defendant. We are unaware of any cases which suggest that a defendant is entitled to refuse arraignment until discovery is carried out. The purpose of discovery is to prevent production of surprise evidence or testimony which would serve to prejudice the defendant’s case at trial, not to prepare the defendant for pleading at the arraignment. (See People v. Howard (1984), 121 Ill. App. 3d 938, 460 N.E.2d 432.) Furthermore, the State is required to provide discovery only “upon written motion of defense counsel” (107 Ill. 2d R. 412(a)); the defendant presented no written motion prior to the initially scheduled arraignment.

Additionally, we find no merit to the defendant’s argument that if he had entered a plea to the indictment prior to discovery, he would thereby have waived any complaint about irregularities in the grand jury proceedings. Objections to grand jury proceedings which provide a basis for dismissing the charge are not waived upon a plea of not guilty; rather, they may be brought prior to trial, either before or after a plea has been entered. Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1; People v. Jameson (1944), 387 Ill. 367, 56 N.E.2d 790.

The defendant contends on appeal that any delay attributable to him was at most 20 days and not 42 days as the State suggests. The defendant argues that only 20 days elapsed from the time he filed his discovery motion on August 6 until the State provided discovery on August 25. He argues that arraignment could have been set at this time and any delay beyond this point should not be attributed to the defendant.

When a defendant files a pretrial motion, he is responsible for the time naturally associated with processing the motion. (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.) A defendant cannot escape responsibility for delay where his action caused the rescheduling. People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.

In the instant case the defendant was responsible for the entire 42 days of delay. Obviously, a defendant who is out on bond must be given notice of criminal proceedings. (See Ill. Rev. Stat. 1987, ch. 38, pars. 110 — 10, 110 — 12.) Thus, when the State provided discovery on August 25, the 20th day of delay, it could not have expected that the defendant would appear on that day for arraignment. Instead, the State properly sent notice to the defendant of the arraignment, which was immediately scheduled for September 16. The entire 42-day delay was chargeable to the defendant.

For the foregoing reasons, the judgment of the circuit court of Warren County is reversed. We remand the cause to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

SCOTT and WOMBACHER, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    JOHN COLEY et al., Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee.
    Third District
    No. 3-88-0182
    Opinion filed February 9, 1989.

      Andrew J. Kleczek, of Kelley & Kleczek, of Joliet, for appellants.
    Robert Jackson and John A. Kendrick, both of Westervelt, Johnson, Ni-coll & Keller, of Peoria, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This case comes to us on appeal from a declaratory judgment action in the circuit court of Peoria County. The question presented is whether the deceased grandson of John Coley was a relative as that term is defined in an insurance policy. The definition of “relative” in the policy required that decedent “live with” the named insured, here John Coley. The trial court found the grandson did not “live with” his grandfather at the time of his death and was not covered by the underinsured motorist provision of the policy. We agree.

The deceased grandson, Robert Coley, was killed in a traffic accident in St. Clair County, Illinois, on May 3, 1985. Plaintiff John Coley had purchased insurance from the defendant State Farm Mutual Automobile Insurance Company. John Coley’s policy contained an under-insured motorist clause under which defendant was liable for bodily injury to John Coley’s relatives caused by an underinsured motorist. The driver of the vehicle which struck the decedent was insured, and his insurance carrier paid to the limit of its liability. Defendant was potentially liable for the difference between its liability limit and the damages paid by the other insurance carrier.

The defendant’s policy provided coverage for the named insured, his spouse, and their relatives. The term “relative” was defined as, “[A] person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child at school.” After Robert Coley’s fatal accident, plaintiffs filed a claim with the defendant. On February 10, 1986, plaintiffs were informed the defendant had denied the claim because the decedent did not conform to the definition of “relative” in the policy. On April 18, 1986, Robert Coley’s grandfather, John Coley, and father, Thomas Coley, filed a declaratory judgment action against the defendant.

The evidence adduced at trial showed the decedent had left his father’s home and moved in with his grandfather two years prior to graduating from high school. He moved most of his clothing and personal possessions to his grandfather’s house and from that time the grandfather provided him with food and clothing as well as a room.

After graduation from high school, the decedent enlisted in the Air Force for a four-year period. He received his basic training in Texas and afterwards was stationed at several locations throughout the United States and overseas. The Air Force furnished living quarters at each base where he was assigned. The decedent was financially self-supporting and was not dependent on his parents or grandparents. He was still serving in the Air Force at the time of his death.

The evidence showed the decedent had kept some of his belongings at his grandfather’s house, had continued to use it as his address on official documents and to receive mail there. He returned to his grandfather’s home during leaves to visit his family. However, at the time of his enlistment, the plaintiff John Coley altered his insurance policy by removing the decedent as a named insured, and his premiums were reduced as a result. When the decedent pm-chased a motorcycle he obtained his own insurance, but this had lapsed at the time of his death.

Plaintiffs argued defendant has waived its argument on appeal by its admissions that decedent was a relative of the named insured, John Coley. The record shows that in all proceedings in the circuit court defendant carefully distinguished between the word “relative” as it is commonly used and “relative” as that word is defined in the insurance contract. While freely admitting decedent was a “relative,” i.e., a blood relation, it consistently denied the decedent was a “relative” as that word is defined in the contract. The plaintiffs’ argument is not well-taken and waiver is not an issue here.

The single issue presented here is the meaning of the term “live with” in the policy. In applying the rules of interpretation to an insurance contract, the words of the policy should be given their plain and ordinary meaning and the court should not search for ambiguity where there is none. (United States Fire Insurance Co. v. Schnackenberg (1981), 88 Ill. 2d 1, 429 N.E.2d 1203.) Here, the contract defines a relative as one that “lives with” the named insured. To be covered by the policy, the decedent would have to be living with his grandfather at the time of his death. Questions of applicable coverage can be determined only as of the time of the accident creating potential liability. (Hawkeye Security Insurance Co. v. Sanchez (1984), 122 Ill. App. 3d 183, 460 N.E.2d 873.) At the time of his accident, the decedent was an airman in the Air Force stationed in southern Illinois. He lived on the air base. Plaintiffs have repeatedly stressed the deep emotional ties between the decedent and his grandparents, a room was kept for his use in his grandparents’ home, he kept some of his personal possessions there, his frequent visits to the home, and his receipt of mail at his grandparents’ address. All of this, however, begs the issue of what the term “lives with” means. The dictionary supplies two definitions of “live” which relate to this inquiry. The first is “to dwell, i.e., to remain for a time, to live as a resident” and second, to “cohabit, i.e., to live together.” (Webster’s Ninth New Collegiate Dictionary 699 (1986).) Under either of these definitions, the decedent did not live with his grandfather. He was not visiting, going to, or coming from his grandfather’s house at the time of the accident.

“The construction to be given to insurance contracts, like other contracts, should be a natural and reasonable one. [Citation.] In order not to lead to unreasonable results, or to defeat the intention of the parties to a contract of insurance, the construction thereof must not be strained, arbitrary, irrational, unnatural, or forced, or strictly technical; rather, it must be fair, natural, reasonable, logical, and practical, having reference to the risk and the subject matter and the purposes of the entire contract.” (Yarbert v. Industrial Fire & Casualty Insurance Co. (1978), 56 Ill. App. 3d 1034, 1036, 372 N.E.2d 886, 887.)

In Yarbert, the court was faced with much the same question presented here, but the contract language was “a resident of the same household.” There, the court held that since the two parties involved, a mother and son, lived at separate addresses there was no coverage. Unless it is obvious that the language in a policy is used in a technical connotation, the language is accorded the meaning which common experience imparts. (Robinson v. Hertz Corp. (1986), 140 Ill. App. 3d 687, 489 N.E.2d 332.) In this case, the decedent lived on the Air Force base where he was assigned for duty. Under the common understanding of the expression “live with,” he did not live with his grandfather at the time of his death.

Plaintiffs have argued Illinois law requires an insurance policy be construed against the insurer and cites Hawkeye. In that case, the court found the phrase “resident of the named insureds’ household” had no fixed meaning and should be construed against the insurer. Hawkeye correctly stands for the proposition that an ambiguous insurance contract should be construed against the insurer. The court in Hawkeye nevertheless found plaintiffs were not entitled to an automatic finding in their favor and found for the defendant on the facts. The definition of a “relative” contained in this policy has been considered before by Illinois courts. Though not interpreted, the definition has been held to be unambiguous for the purpose of construing an insurance contract. (See State Farm Mutual Automobile Insurance Co. v. Byrne (1987), 156 Ill. App. 3d 1098, 510 N.E.2d 131.) When the parties’ insurance agreement is clear and unambiguous, it is to be enforced as written, without going behind the language to speculate on the purposes underlying the provision. (Van Vleck v. Barbee (1983), 115 Ill. App. 3d 936, 451 N.E.2d 25.) Here we find no ambiguity which would require us to construe the contract against defendant or go behind the contract to consider its underlying purpose.

Plaintiffs go on to argue that Illinois courts have expressly held that “live” and “reside” are synonymous. They cite Hanson v. P.A. Peterson Home Association (1962), 35 Ill. App. 2d 134, 182 N.E.2d 237, which contains language to this effect. There, the court interpreted contract language based on the contract taken as whole and the past conduct of the parties. It was not called upon to render a precise interpretation of the word “live” nor did its decision rely on the interpretation of this word. In People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197, also cited by plaintiffs, the Illinois Supreme Court was called upon to decide whether a convict imprisoned in Missouri could have been a resident at his Chicago address for purposes of the statute of limitations. The court distinguished between a technical legal residence and the common understanding of the word “reside” to be employed in statutory construction. It wrote:

“Plaintiff in error was not a resident of the address he claimed as his legal residence, in the sense that he occupied it in the manner in common use, nor in the ordinary conception of the use of a residence, according to common practice, or in the ordinary course of events. He did not make the ordinary use of such residence or occupy it according to common practice. *** On the contrary, his relation, if any, to the place which he claims was his legal residence, was purely technical. It was uncommon, extraordinary and abnormal. If we assume that some address in Chicago constituted his technical legal residence, to which he intended to return after his release, by no stretch of imagination can it be said that he was usually resident at that address during the time here involved.” Carman, 385 Ill. at 28, 52 N.E.2d at 199.

Although this case does not involve statutory construction, we, like the court in Carman, must employ the common understanding of the words in question, not a technical, legal one.

The plaintiffs have cited Cincinnati Insurance Co. v. Argubright (1986), 151 Ill. App. 3d 324, 502 N.E.2d 868, and argued the deceased was unemancipated and intended to return to his grandparents’ house when discharged from the Air Force. They have failed to show how the decedent here could have been unemancipated from his grandfather where there had been no severance of ties with his natural father. In addition, there exists in Illinois law a long-standing rule that a child in the military service is emancipated for the term thereof. (Iroquois Iron Co. v. Industrial Comm’n (1920), 294 Ill. 106, 128 N.E. 289.) Students and unemancipated persons in military service are considered to be relatives even though they may not actually reside in the household, but emancipated children are not covered. 12A G. Couch, Insurance §45:637, at 140-41 (rev. 2d ed. 1981).

The court in Argubright also considered where the defendant’s unemancipated son had spent the majority of his time. In that case, the court determined that the family maintained two residences and the son had spent all of his time in one or the other of the family residences. The fact that the son did not live exclusively at the insured residence did not allow the insurer to avoid liability. In this case, the decedent was emancipated and did not spend a substantial portion of his time living in his grandfather’s house. It is necessary, of course, that the various persons actually reside in the same household, and this test ordinarily is not met by a son who is independent of the household even though he still receives some financial assistance. 8C J. Appleman & J. Appleman, Insurance Law & Practice §5080.35, at 249-50 (1981).

Plaintiffs have repeatedly mentioned the decedent’s intention to return to his grandfather’s house after his discharge, that he used his grandfather’s address to receive mail, and listed his grandfather’s address as his legal residence on official documents, et cetera. These arguments go to the issue of intent related to the deceased’s legal residence or domicile. The question here is not one of legal residence or domicile but rather one of contract construction, and this court will interpret the contract’s language in its ordinary plain meaning, not in a technical legal sense. Considering the decedent was a young, emancipated man serving in the armed forces, where he could have only an occasional, transitory presence in his grandfather’s home, he did not “live with” his grandfather for the purposes of this insurance policy. For this reason the finding of the circuit court was not against the manifest weight of the evidence and is affirmed.

Affirmed.

LUND and KNECHT, JJ., concur.


text:
      In re DAVID DEAN STONE, Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. David Dean Stone, Respondent-Appellant).
    Third District
    No. 3-88-0358
    Opinion filed February 9, 1989.

      Guardianship & Advocacy Commission, of Peoria (Cynthia Z. Tracy, of counsel), for appellant.
    John A. Barra, State’s Attorney, of Peoria (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This action was brought to involuntarily commit the respondent, David Dean Stone. A petition to involuntarily commit Stone was filed on May 9, 1988. A hearing was conducted on May 11, 1988. The court found Stone to be subject to involuntary admission and ordered him hospitalized in the Department of Mental Health and Developmental Disabilities.

On appeal Stone argues the following: (1) the petition supporting commitment and its accompanying certificates were insufficient; (2) the trial court erred in not considering an alternative treatment report; (3) he was denied effective assistance of counsel; and (4) the trial court’s decision was not supported by clear and convincing evidence. In light of the view we take with regard to Stone’s first contention, it is unnecessary to discuss his remaining arguments.

Stone first contends the petition supporting commitment and its accompanying certificates were insufficient. Specifically the medical certificates submitted by the State fail to indicate that Stone was examined by a psychiatrist. The Mental Health and Developmental Disabilities Code (Mental Health Code), section 3 — 703 (Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 703), provides in relevant part, that if a certificate executed by a qualified examiner, clinical psychologist or physician who is not a psychiatrist has been filed, then the respondent is to be examined by a psychiatrist.

David Stone was examined by Everett Lyons, a qualified examiner, and by Dr. Maria Aranas, a physician. The State does not dispute that section 3 — 703 has not been complied with. However, the State argues the reason no error resulted from the failure to file a certificate by a psychiatrist in conformity with section 3 — 703 is that said section is inapplicable to the instant situation.

The record indicates respondent had voluntarily admitted himself on July 1, 1987. Sometime thereafter the respondent signed a five-day request for discharge pursuant to section 3 — 403 of the Mental Health Code. (Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 403.) Under section 3— 403, all that need be filed to obtain a court hearing on the matter is a petition and two certificates conforming to the requirements of section 3 — 601 and section 3 — 602 of the Code. (Ill. Rev. Stat. 1987, ch. 9IV2, pars. 3 — 601, 3 — 602.) Section 3 — 602 requires the petition be accompanied by a certificate executed by a physician, qualified examiner or a clinical psychologist stating that respondent is subject to involuntary admission and requires immediate hospitalization.

The State contends that as a result of respondent’s status as a voluntary admittee at the time the petition for involuntary admission was filed, the procedures to be followed were those contained in section 3 — 403 and not section 3 — 700 et seq. Thus, under the circumstances of this case, the certificates filed by the qualified examiner and physician under section 3 — 602 were sufficient to satisfy the requirements of section 3 — 403. Without citing any authority in support of its position, the State contends Stone’s reliance upon section 3— 703 is misplaced.

This argument is incorrect. A search of authority reveals that section 3 — 403 has been used to involuntarily admit an individual in emergency situations. (See, e.g., In re Wheeler (1987), 152 Ill. App. 3d 371, 504 N.E.2d 524; In re Crenshaw (1978), 62 Ill. App. 3d 260, 378 N.E.2d 1260; People v. Ralls (1974), 23 Ill. App. 3d 96, 318 N.E.2d 703.) This proceeding was to admit Stone by court order, not by emergency certification. In addition, sections 3 — 601 and 3 — 602 both contain the phrase “subject to involuntary admission,” indicating separate and distinct requirements need to be fulfilled before a person is admitted by court order. Thus, section 3 — 703 applies and requires a psychiatric examination to complement the petition’s nonpsychiatric certificate. Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 703.

Involuntary commitment proceedings affect important liberty interests; thus, the need for strict compliance with statutory procedures is essential. (In re King (1986), 148 Ill. App. 3d 741, 499 N.E.2d 1032.) The Code is clear in its requirements when involuntarily admitting a party by court order. The State failed to follow the prescribed statutory requirements. Consequently, David Stone should not have been involuntarily admitted.

A second response to Stone’s noncompliance argument advanced by the State is that Stone has waived any error concerning the sufficiency of the certificates by failing to object to the errors at trial. Where, as here, the failure of compliance with statutory requirements is readily apparent of record, the circuit court’s judgment is erroneous (Martin v. Schillo (1945), 389 Ill. 607, 60 N.E.2d 932), and the error may be considered on appeal under a doctrine analogous to the plain error doctrine (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.), despite the respondent’s failure to call it to the attention of the trial court.

For the foregoing reasons the judgment of the circuit court of Peoria County is reversed.

Reversed.

WOMBACHER and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    SHAY SMITH, a Minor by Laura Smith, his Mother and Next Best Friend, Plaintiff-Appellant, v. ANNA GEORGE et al., Defendants-Appellees.
    Third District
    No. 3-88-0311
    Opinion filed February 10, 1989.

      Joseph C. Polito, of Kozlowski, Polito & Feeley, of Joliet (Mary E. Rosiek, of counsel), for appellant.
    E. Kent Ayers, of Murphy, Timm, Lennon, Spesia & Ayers, of Joliet (Neil T. Goltermann, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Shay Smith, by his mother Laura Smith, appeals from summary judgment entered in favor of defendants Anna George and Matthew George in a suit for personal injuries incurred when Shay was burned while pouring gasoline on a leaf fire.

The facts of this case are not in dispute. On April 8, 1986, Matthew George invited Shay to play at his home after school. Both boys were in second grade, and they lived five or six blocks apart. Anna George, mother of Matthew, was at home working in the kitchen. After shooting baskets for a while in the driveway, the boys surreptitiously obtained some matches and a cigarette lighter from the George home and then gathered some leaves and grass, which they set on fire behind a board fence situated on the property line at the rear of the yard.

The boys then went into the unlocked garage, poured some gasoline from a 21/2-gallon container into a coffee can, carried it back to the fire, and poured the gasoline on the fire to make it blaze up again. The boys made three or four trips for gasoline, each time climbing the fence one at a time and handing the coffee can of gasoline over the fence. Matthew poured the gasoline each time until the last time. When Shay poured the gasoline, an explosion followed which set fire to his hat and jacket and burned his face and hand.

Plaintiff filed a two-count complaint. One count charged Anna George with failure to properly supervise and control her son Matthew so as to prevent him from harming plaintiff and for negligently permitting matches and gasoline to be within reach of her minor son. The second count alleged Matthew’s negligent conduct in failing to exercise reasonable care for the protection of plaintiff from exposure to an unreasonable risk of harm.

First, plaintiff contends that the trial court erred in finding as a matter of law that defendants had no duty to plaintiff to protect him against injury from the fire set on defendants’ land. We consider it significant that the fire was not on defendants’ land, but rather was on the other side of a boundary fence about four feet high which in part blocked the view of anyone in the defendants’ house or yard from the area where the fire was set. It is also significant that plaintiff assisted in starting the fire, in obtaining the gasoline, and in causing the explosion that burned him.

The law of Illinois is clear that fire is one of the obvious dangers which a child old enough to be allowed at large can be expected to understand and appreciate. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 383 N.E.2d 177; Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846.) According to these cases, a child of the age and understanding of eight-year-old Shay Smith is not owed a duty by defendants to remedy or prevent a fire which is a preexisting dangerous condition on their land. We hold that here, where there was no “preexisting dangerous condition,” but rather a fire started in part by plaintiff, and where the fire was not on defendants’ land but outside the boundaries of their land, and where plaintiff admittedly understood the dangers of fire and the flammability of gasoline, and where plaintiff was of sufficient age and maturity to be allowed at large, no duty was owed by defendants to plaintiff to protect him from the obvious risk which he encountered.

A second issue raised by plaintiff is whether the complaint stated a cause of action under section 316 of Restatement (Second) of Torts, which provides:

“A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent
(a) knows or has reason to know that he has the ability to control his child, and
(b) knows or should know of the necessity and opportunity for exercising such control.” Restatement (Second) of Torts §316, at 123-24 (1965).

Plaintiff points out that Anna George, mother of Matthew, was at home on the day of the accident, that she knew the boys were playing outdoors, and that she knew they had come into the house one or two times. Plaintiff then argues that the pleadings and depositions in the record present an issue of fact as to whether Anna George knew or should have known that her son had a propensity to set fires and, therefore, that there was a necessity that she control him in this instance.

A careful review of the depositions indicate that one neighbor recalled seeing Matthew near a trash fire and another neighbor remembered that Matthew once possessed a lighter and had ignited some oil from a spray can. Neither neighbor told Anna George of these incidents. Also, Shay Smith’s deposition indicates that Matthew told him he had set lots of fires and that once he had burned his thumb. However, the deposition of Anna George is uncontradicted that she had no knowledge that Matthew had ever started a fire or played with matches or been burned or smelled of smoke or smelled of gasoline. Statements that other people had some knowledge that Matthew was interested in fires do not establish any knowledge on the part of the mother.

In order to establish parental liability for a child’s acts, the complaint must allege specific instances of prior conduct sufficient to put a parent on notice that the act complained of was likely to occur. (Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 504 N.E.2d 200.) The absence of knowledge of prior conduct in the case at bar is sufficient to distinguish this case from Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 478 N.E.2d 603, where a three-year-old child pushed an alarm button in a bank one week after the mother had been warned that he had activated the silent alarm previously and that she must keep him away from the button, which was behind a desk. In Duncan knowledge was clearly set forth, and the reviewing court found that a cause of action had been alleged. Such is not true here. We conclude that there was no issue of fact as to Anna George’s knowledge of Matthew’s propensity, if any, to set fires.

Furthermore, under the law of Illinois, adults are not negligent by simply allowing children to play unsupervised, and it has been held that it would place an unreasonable burden on parents to supervise constantly children at play or to guard against any possible injury which could be caused by their activity. Campbell v. Haiges (1987), 152 Ill. App. 3d 246, 504 N.E.2d 200.

Plaintiff’s final contention is that the complaint stated a cause of action under a theory of negligent entrustment as set out in sections 308 and 318 of the Restatement (Second) of Torts (1965). The theory of liability under those sections is that the mother permitted Matthew to use gasoline and matches and that she knew or should have known that he was likely to misuse those dangerous objects in a manner so as to create an unreasonable risk of harm to plaintiff.

The undisputed facts of this case make plain that Anna George had no knowledge that Matthew had obtained matches and a lighter from the house, that he had obtained gasoline from the garage, and that he had started a fire. Furthermore, the complaint does not even allege that Anna had knowledge. Where the allegations of the complaint are insufficient to show a factual basis from which the duty to control Matthew would arise, there is no cause of action under sections 308 or 318 of the Restatement (Second) of Torts (1965). Teter v. Clemens (1986), 112 Ill. 2d 252, 492 N.E.2d 1340.

For the reasons stated, we hold that the circuit court of Will County did not err in granting defendant’s motion for summary judgment.

Affirmed.

STOUDER, P.J., and HEIPLE, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY SIMPSON, Defendant-Appellant.
    Third District
    No. 3-88-0048
    Opinion filed February 9, 1989.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Masters, State’s Attorney, of Joliet (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant, Larry Simpson, was charged with aggravated battery, home invasion, residential burglary and armed robbery in connection with his taking money from 88-year-old George Doucette in his home on August 29, 1987. After a jury trial, defendant was found guilty of all charges and sentenced by the Will County circuit court to serve concurrent extended terms of 40 years each for his convictions of home invasion, residential burglary and armed robbery, and 10 years for aggravated battery. Defendant appeals from his convictions and his sentences.

The evidence admitted at trial established that around 2 p.m. on August 29, 1987, the victim, George Doucette, was washing string beans in the kitchen sink of his trailer at 215 North Avenue, Lock-port, Illinois. He heard something and turned to find defendant standing inside the door, wielding a knife with a shiny, six-inch blade by his side. Defendant initially asked if he could mow Doucette’s lawn. Doucette turned down the offer, explaining that he had just finished mowing and had put his lawn mower away. Doucette suggested they go outside, but defendant resisted. Defendant asked if Doucette could change a $1 bill. Doucette retrieved his wallet from his pocket and handed it to defendant. Defendant withdrew three $20 bills, and Doucette requested that at least he leave the driver’s license. Defendant threw the wallet out on the lawn and then lunged at Doucette’s chest with the knife. Doucette blocked the assault, but sustained a cut to his hand and fell to the floor. Defendant then kicked Doucette and dashed out to his car parked across the street.

With the help of a neighbor, Doucette called the sheriff’s office. Defendant was promptly arrested and brought to the scene of the crime for identification. Defendant’s wallet contained $61, but no knife was recovered.

Later, at the sheriff’s office, defendant volunteered that he had offered to cut grass for an old man that he saw outside of a trailer in Lockport. Defendant’s offer was refused; but, according to defendant, the man yelled at him as he started to drive off. Defendant then returned to the yard, and the old man asked how much defendant wanted for the mowing. Defendant said $3 or $4, and the old man again refused to hire him. Then, according to defendant, the two stood awhile “rapping” until the old man went into the trailer to clean his string beans. Defendant followed into the home and then asked if the old man had change for a $5 bill. The old man reached for his wallet and was fumbling with it when defendant grabbed the wallet, removed $37 and tried to get away. Defendant further stated that the old man tried to grab him as he was leaving, and defendant slammed the door in his face, threw the wallet across the yard and drove off.

At trial, defendant’s statement was admitted, but he did not testify on his own behalf. In addition to the charged offenses, on motion of the defendant, the jury was instructed on lesser-included offenses of robbery and theft from a person. The jury returned verdicts of guilty on these offenses in addition to the four charged offenses.

Defendant’s motion for a new trial was denied. After a hearing, the court entered judgments of conviction on the four charged offenses, but not on the lesser-included ones. Based on defendant’s extensive criminal record, including a prior armed robbery in 1983, the court found that an extended term was applicable, and sentenced defendant to concurrent terms of 40 and 10 years, as aforesaid.

In this appeal, defendant contends that the State’s evidence failed to prove essential elements of armed robbery, residential burglary and home invasion. Defendant also posits that the court erroneously considered residential burglary a Class X felony and imposed extended terms for the Class 1 and 3 offenses — residential burglary and aggravated battery, respectively. The State agrees that defendant’s sentences for residential burglary and aggravated battery are unauthorized, but argues that the evidence was sufficient to sustain defendant’s convictions in all other respects. We agree with the State.

Defendant initially suggests that a conviction for armed robbery cannot be sustained in this case because the evidence failed to establish an objective basis for the victim’s belief that he was threatened by defendant. In Illinois, “[a] person commits armed robbery when he *** [takes property from the person or presence of another by the use of force or by threatening the imminent use of force] while he *** carries on or about his *** person, or is otherwise armed with a dangerous weapon.” (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2(a).) Clearly, there was evidence that defendant carried a dangerous weapon and thereby enforced his “request” for Doucette’s money. There is no requirement that the victim wait until that weapon is aimed to strike a vital organ before the “use of force” or “threat of imminent use of force” may be established. (People v. Ader (1988), 176 Ill. App. 3d 613, 531 N.E.2d 407; People v. Hollingsworth (1983), 120 Ill. App. 3d 177, 179-80, 457 N.E.2d 1062, 1064.) Nor is it essential to prove menacing language where the weapon is openly displayed in anticipation of the taking of property. As stated in Hollingsworth, “[a] subjective feeling of fear will not support a conviction for robbery in the absence of facts to show that that fear was reasonable.” (120 Ill. App. 3d at 179, 457 N.E.2d at 1064.) The fact that defendant carried out his implicit threat in this case by attempting to thrust the blade into his victim’s chest after the money was handed over supports Doucette’s reasonable belief that he was threatened by the weapon when he turned over the wallet. Moreover, it has been held that the offense of robbery may be sustained where the taking was without force, but defendant’s departure was accomplished by force. (See, e.g., People v. Kennedy (1973), 10 Ill. App. 3d 519, 294 N.E.2d 788.) Although defendant on appeal attempts to distinguish this case from Kennedy by characterizing his violence following the taking as “gratuitous,” the fact is that defendant’s knifing and kicking accompanied his exit, probably facilitated his exit, and was sufficient under Kennedy to transform a theft into a robbery.

Defendant next argues that the State’s evidence failed to prove that he had the intent to steal prior to entering Doucette’s trailer. Residential burglary is “knowingly and without authority entering] the dwelling place of another with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1987, ch. 38, par. 19-3.) Defendant admitted that his purpose in approaching Doucette was for money. He entered the trailer, knife in hand. Defendant first indicated that he was willing to earn some money, but his display of the knife proves that he came in prepared with a back-up plan to take his victim’s money by force if the seemingly benign offer was refused. (It would be ludicrous to believe that defendant had intended to use the six-inch blade to cut the grass.) Based on the evidence presented at trial the jury was entitled to reject defendant’s version of his encounter with Doucette and infer from the circumstances as related by Doucette that defendant had formed the requisite intent prior to his appearance in the trailer. See People v. Bryant (1979), 79 Ill. App. 3d 501, 398 N.E.2d 941.

Defendant’s challenge to his conviction of home invasion is similarly unconvincing. The information charged that defendant, “not *** a peace officer acting in the line of duty, knowingly and without authority entered the dwelling place of George Doucette *** knowing *** Doucette to be present *** and intentionally caused injury to him.” (See Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a)(2).) Defendant first suggests that his entry into the trailer was not unauthorized. The mere fact that one has not locked or even closed the outside door to one’s residence in the middle of a summer day hardly constitutes an invitation to a perfect stranger to enter for any reason whatsoever. Accepting Doucette’s testimony, there is no doubt but that defendant’s entry was unauthorized.

Next, defendant reiterates his contention that the evidence did not prove the requisite mens rea upon entry into Doucette’s trailer. Although there may be some split in authority as to whether the offense of home invasion requires proof of intent upon entry to use force or threaten the imminent use of force (Ill. Rev. Stat. 1987, ch. 38, par. 12 — ll(aXl)) or to cause injury to any person within the dwelling place (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11(a)(2)) (compare People v. Bitner (1980), 89 Ill. App. 3d 1106, 412 N.E.2d 721 (holding no intent need be proved other than unauthorized entry), with People v. Medreno (1981), 99 Ill. App. 3d 449, 425 N.E.2d 588 (indicating that unauthorized entry must be for the purpose of threatening or using force)), it is clear from the evidence here, as aforesaid, that defendant entered the trailer intending to use the knife for something more sinister than gardening chores. Thus, this case presents no need to resolve any conflict between our holding in Bitner and the dicta appearing in Medreno.

Lastly, it is apparent that defendant’s sentences for residential burglary, a Class 1 felony, and aggravated battery, a Class 3 felony, are in excess of those permitted by statute. The extended-term provision (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a)) applies only to the class of the most serious offense when multiple convictions are entered — in this case, the Class X offenses. (See People v. Phillips (1987), 159 Ill. App. 3d 483, 511 N.E.2d 1193.) The parties agree that the maximum allowable sentences for defendant’s convictions of residential burglary and aggravated battery are 15 -and 5 years, respectively. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 8—l(aX4), (a)(6).) Accordingly, defendant’s sentences for those offenses are hereby reduced to 15 years and 5 years, respectively, in the Department of Corrections to run concurrently with the 40-year sentences imposed for armed robbery and home invasion.

Defendant’s sentences for residential burglary and aggravated battery are modified. In all other respects, the judgments of conviction and sentences as entered by the circuit court are affirmed. Affirmed as modified.

Affirmed as modified.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE HEIPLE WOMBACHER, P.J., JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL ULLRICH, Defendant-Appellee.
    Third District
    No. 3-88-0221
    Opinion filed February 9, 1989.
    BARRY, J., dissenting.

      Edward F. Masters, State’s Attorney, of Joliet (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The State appeals from a circuit court order, contending that the trial court erred in failing to impose on the defendant, Michael Ullrich, the statutorily mandated fine pursuant to section 15 — 113 of the Illinois Vehicle Code (the Vehicle Code) (Ill. Rev. Stat. 1985, ch. 951/2, par. 15 — 113). We affirm.

Mr. Ullrich has not submitted an appellee’s brief. Nevertheless, where the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, the reviewing court may decide the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The facts are not in dispute. Mr. Ullrich was charged with the offense of operating an overweight vehicle on an elevated structure (Ill. Rev. Stat. 1985, ch. 95V2, par. 15 — 111(h)). The court accepted his blind plea stipulating to the facts alleged.

In sentencing, the State informed the trial court that the statutorily mandated fine under section 15 — 113 of the Vehicle Code, plus costs, amounted to $6,385. The court entered a judgment of conviction. In setting the amount of the fine, the court indicated that because Mr. Ullrich did not appear to have the resources to pay the amount called for by the statute, it would fine him only $200. The court later reduced the fine to $100, the amount posted as bond.

On appeal, the State contends that the trial court abused its discretion in sentencing. According to the State, the court had no authority to impose a fine less than that required by section 15 — 113 of the Vehicle Code. In support thereof, the State cites People ex rel. Ward v. Salter (1963), 28 Ill. 2d 612, 192 N.E.2d 882, a case directly on point. In Salter, the court held that the amount of the fine to be imposed under section 15 — 113 was mandatory.

We find that a subsequent statutory enactment calls into question the continued validity of the holding in Salter. In 1973 the legislature enacted section 5 — 9—1(d) of the Unified Code of Corrections (the Corrections Code) (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 9—1(d)). Section 5 — 9—1(d) requires that in determining the amount of a fine, the court must consider the offender’s financial resources and his future ability to pay.

An implied amendment arises out of the inconsistency between two statutes. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034.) While implied amendments are not generally favored, a court will find that a later statute effects an amendment to an earlier statute when the two statutes are so inconsistent that they cannot co-exist. Village of Monsanto v. Touchette (1965), 63 Ill. App. 2d 390, 211 N.E.2d 471.

Section 15 — 113(a) of the Vehicle Code establishes a schedule of mandatory fines. Strict imposition of these fines would be inconsistent with the dictates of section 5 — 9—1(d) of the Corrections Code, which requires the trial court to consider the offender’s financial situation in determining the amount of the fine to be imposed. In order for the two statutes to co-exist, we construe section 5 — 9—1(d) of the Corrections Code as effecting an amendment to the strict application of section 15 — 113(a) of the Vehicle Code. Accordingly, the mandatory fine schedule contained in section 15 — 113(a) of the Vehicle Code is subject to the overriding sentencing principles set out in section 5— 9 — 1(d) of the Corrections Code. We note that the 1983 amendment to section 15 — 113 in essence only updated the schedule of fines and inconsequentially changed the wording of the statute. Ill. Ann. Stat., ch. 951/2, par. 15 — 113, at 99 (Smith-Hurd 1988 Supp.).

For the foregoing reasons, we find that the trial court did not abuse its discretion by considering Mr. Ullrich’s financial resources when the court determined the amount of his fine.

Therefore, the judgment of the circuit court of Will County is affirmed.

Affirmed.

WOMBACHER, P.J.,

concurs.

JUSTICE BARRY,

dissenting:

I do not believe the mandatory fine provisions of the Illinois Vehicle Code were implicitly amended by the enactment in 1973 of the Unified Code of Corrections provision requiring a court to consider the financial resources and future ability to pay of the offender in determining the amount and method of payment. Section 5 — 9—l(dXl) (111. Rev. Stat. 1987, ch. 38, par. 1005 — 9—l(dXl)) would, in the case of a mandatory fine, require the court to fix a method of payment commensurate with the offender’s ability to pay, but would not give the court discretion not otherwise available to it to reduce the amount the fine decreed by the legislature.

Even if the majority is correct, and the 1973 statute did amend by implication the overweight fine provisions of the Motor Vehicle Code, the current schedule of overweight fines was enacted in 1983 with the same mandatory language as the previous version. (See Ill. Ann. Stat., ch. 951/2, par. 15 — 113, at 99 (Smith-Hurd 1988 Supp.) (for legislative history of statute).) Accordingly, the 1973 provision of the Code of Corrections was implicitly amended by the 1983 Motor Vehicle Code enactment. By this reasoning, the mandatory fines are once again the law of Illinois. Obviously, had the legislature intended to give the trial court discretion in the matter of imposition of overweight fines, it would have been a simple matter to provide such authority by appropriate language in the 1983 statute. That was not done.

Here defendant’s fine and costs totalled $100 rather than the $6,385 required by the current statute as adopted in 1983. The trial court erred and should be reversed. I therefore dissent from the majority opinion filed this day.