author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT NELSON, Defendant-Appellant.
    Second District
    No. 2—87—0939
    Opinion filed May 12, 1989.
    G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Robert Nelson, appeals from an order of the trial court granting the State’s motion to dismiss his post-conviction petition. Defendant’s sole appellate contention is that the trial court improperly dismissed his petition more than 30 days after he had filed it. We reverse and remand.

On September 12, 1979, a jury convicted defendant of six counts of murder relating to the death of his mother, and the court sentenced him to a 40-year prison term. This court affirmed defendant’s conviction in People v. Nelson (1981), 101 Ill. App. 3d 1198 (unpublished Rule 23 order). Defendant subsequently filed a post-conviction petition which the trial court denied, and we affirmed the order denying that petition in People v. Nelson (1986), 145 Ill. App. 3d 1167 (unpublished Rule 23 order).

On February 27, 1987, defendant, acting pro se, filed the post-conviction petition underlying this appeal and requested the trial court to vacate five of the six murder convictions and grant him a new sentencing hearing. No further action was taken on defendant’s petition until July 29, 1987, at which time the State filed a motion to dismiss. The trial court held a hearing on the State’s motion on September 10, 1987. Defendant was not present at that hearing and was not appointed counsel nor represented by counsel. The State argued that the court should not appoint counsel for defendant on the petition and that the petition “should be dismissed as being without merit.” The trial court granted the State’s motion and dismissed the petition. Defendant then filed this timely appeal.

Relying on our supreme court’s recent decision in People v. Porter (1988), 122 Ill. 2d 64, 83-85, defendant argues that the trial court was required to rule on his post-conviction petition no later than 30 days after he filed it in accordance with the mandatory 30-day provision of section 122 — 2.1(a) of the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a)). The State responds that defendant misapprehends the teaching of Porter and that the 30-day mandatory provision of section 122 — 2.1(a) as construed in Porter is inapplicable in the present case because the trial court dismissed the petition pursuant to the State’s motion under section 122 — 5 of the Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5). As we explain below, it is the State, rather than defendant, that demonstrates a basic misunderstanding of both the interplay of sections 122 — 2.1 and 122 — 5 of the Act and the clear import of Porter.

Section 122 — 2.1(a) of the Act prescribes that the trial court shall examine and enter an order adjudicating a post-conviction petition within SO days after the defendant has filed his or her petition. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).) If the court concludes that “the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order.” (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).) Section 122 — 2.1(b) states that in the event the court decides not to dismiss the petition, “the court shall order the petition to be docketed for further consideration in accordance with Sections 122 — 4 through 122 — 6” of the Act (Ill. Rev. Stat. 1987, ch. 38, pars. 122 — 4 through 122 — 6). (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(b).) Section 122 — 5 of the Act, in turn, sets forth the requirement that “the State shall answer or move to dismiss” the petition no later than 30 days after the entry of the court’s order pursuant to section 122— 2.1(b) or within any further time the court may set. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 5.) Thus, only after the petition has passed the first examination by the trial judge in accordance with section 122— 2.1 may the State file pleadings within the time set forth in section 122-5. People v. Brothers (1989), 179 Ill. App. 3d 788, 791; People v. Day (1987), 152 Ill. App. 3d 416, 420.

In People v. Porter (1988), 122 Ill. 2d 64, 85-86, our supreme court held that the 30-day rule of section 122 — 2.1(a) was mandatory and not discretionary. In so holding, the court stated that the trial court’s failure to comply with the Act rendered its subsequent dismissal of a post-conviction petition void. (122 Ill. 2d at 86.) This court recently reviewed a case arising under similar facts. (See People v. Jones (1989), 180 Ill. App. 3d 37, 38.) In Jones, we concluded that Porter and section 122 — 2.1(a) require the trial court to review a post-conviction petition within 30 days of its filing. (Jones, 180 Ill. App. 3d at 38; see Porter, 122 Ill. 2d at 85; Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).) Porter further stated that if, upon that initial review, the court found the petition to be frivolous and patently without merit, it was required to enter an order of dismissal. (Porter, 122 Ill. 2d at 85; see Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(a).) Although in interpreting these provisions our opinion in Jones states that “[s]ome order must be entered within that 30-day period,” we intended that the 30-day period apply only to orders entered pursuant to section 122— 2.1(a). (Jones, 180 Ill. App. 3d at 38.) If an order of dismissal on the basis of frivolity is not entered within 30 days after the petition is filed, “any later dismissal must be vacated and the petition must be set for further consideration in accordance with sections 122 — 4 through 122 — 6.” (Jones, 180 Ill. App. 3d at 38.) We did not intend in Jones, nor do we hold here, that the 30-day period applies to orders entered pursuant to section 122 — 2.1(b). Rather, docketing orders entered pursuant to section 122 — 2.1(b) may be entered at any time.

In the instant action, the trial court did not review defendant’s petition within the first 30 days as was required by section 122 — 2.1(a) of the Act. In addition, counsel was never appointed for defendant, and the record indicates that the petition was never docketed for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Act as required by section 122 — 2.1(b) of the Act. Thus, we conclude that the trial court’s failure to comply with the 30-day rule of section 122 — 2.1(a) renders the subsequent dismissal of defendant’s post-conviction petition void. (Porter, 122 Ill. 2d at 86.) Moreover, inasmuch as the Act does not allow the State to file a motion to dismiss pursuant to section 122 — 5 of the Act prior to the time the court fulfills its responsibilities under section 122 — 2.1, the State’s motion to dismiss is a nullity. (See Day, 152 Ill. App. 3d at 420; see Brothers, 179 Ill. App. 3d at 791.) In light of the fact that the trial court did not enter any order dismissing defendant’s petition on the basis of frivolity within the mandatory 30-day period prescribed in section 122 — 2.1(a) and because the State’s motion to dismiss pursuant to section 122 — 5 was premature, we reverse the order of the trial court and remand this cause to that court for further consideration.

Having concluded that the trial court’s order in the instant action must be reversed, all that is left before us is to determine what procedure the court should follow upon remand. In Porter, the supreme court concluded that the circuit court’s failure to comply with section 122 — 2.1 of the Act rendered its subsequent dismissal of the petition void and ordered that the cause be remanded and the petition “docketed for further consideration in accordance with sections 122— 4 through 122 — 6” of the Act. (Porter, 122 Ill. 2d at 86.) Similarly, a panel of this court followed Porter and remanded an improperly dismissed petition to the trial court for “further consideration in accordance with sections 122 — 4 through 122 — 6” of the Act. (See People v. Jones (1989), 180 Ill. App. 3d 37, 38.) However, in another recent opinion, a different panel of this court remanded the cause to the trial court with directions that it make a determination as to the frivolity of the petition, and, if the court found that the petition had merit, then permit the State to file a motion in accordance with section 122-5. (See People v. Brothers (1989), 179 Ill. App. 3d 788, 791-92.) Upon further consideration of Porter, we conclude that the trial court lost authority to dismiss the petition pursuant to section 122 — 2.1(a) by not ruling on it within 30 days. Accordingly, that portion of our decision in Brothers permitting the trial court to make a section 122— 2.1(a) ruling after the 30-day period has expired should not be followed. Rather, the proper procedure upon remand in such a case is for the trial court to docket the petition for consideration in accordance with sections 122 — 4 through 122 — 6 of the Act. See Porter, 122 Ill. 2d at 86; Jones, 180 Ill. App. 3d at 38.

For the reasons set forth above, the judgment of the circuit court is reversed, and this cause is remanded to that court with directions that the court docket the petition for consideration in accordance with sections 122 — 4 through 122 — 6 of the Act.

Reversed and remanded with directions.

WOODWARD and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. BRIAN HEIM, Defendant-Appellee.
    Second District
    No. 2—88—0859
    Opinion filed May 9, 1989.

      J. Christopher Moore and Mary Jo Hunt, State’s Attorneys, of Galena (William L. Browers and Virginia M. Ashley, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The defendant, Brian Heim, was charged with attempted burglary (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 19 — 1(a)), by an information, and he was released on a personal recognizance bond which set bail at $5,000. The State petitioned for revocation of the recognizance bond and sought the imposition of a cash bond, pursuant to section 110— 6(f) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 6(f)), following certain threatening acts allegedly committed by the defendant. At the revocation hearing, the trial court required the State to establish its case by clear and convincing evidence and denied the State’s petition. The court did, however, add conditions to the defendant’s personal recognizance bond.

The State seeks to bring this interlocutory appeal from the denial of its petition pursuant to sections 110 — 2 and 110 — 6(f) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, pars. 110 — 2, 110 — 6(f)), contending that the trial court applied the wrong standard of proof at the revocation hearing.

The defendant contends, inter alia, that the State is not authorized to appeal bail determinations and argues that the legislation purporting to grant such authority to the State is unconstitutional as a violation of the separation of powers clause of the Illinois Constitution.

After the appellate briefs of the State and defendant had been filed, the State filed a notice of mootness of appeal stating: “[S]ince the briefing of this cause the underlying charge against the defendant has been dismissed and *** the defendant has instead entered a plea of guilty to a later filed different charge.” The State thus advises that there no longer exists a controversy between the parties, in this case, with respect to the trial court’s bond determination and, therefore, the appeal has been rendered moot. The State suggests, however, that the constitutional issue presented herein “may present a matter capable of repetition, yet evading review,” thus justifying this court’s consideration of the appeal.

We agree that the matter appears to be moot as the original charge against the defendant has been dismissed and the disputed bail determination is no longer applicable in this case. It is well established that when a case is rendered moot, the court’s decision on the merits cannot result in relief to either party and any decision thus reached is essentially an advisory opinion. (See In re Marriage of Landfield (1987), 118 Ill. 2d 229, 232, 514 N.E.2d 1005, 1006; George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76, 491 N.E.2d 1160, 1162.) Illinois courts do not issue advisory opinions (Kennedy, 112 Ill. 2d at 76, 491 N.E.2d at 1162), and “ ‘the court should not resolve the question merely for the sake of setting a precedent to govern potential future cases’ ” (Landfield, 118 Ill. 2d at 232, 514 N.E.2d at 1006, quoting Bluthardt v. Breslin (1979), 74 Ill. 2d 246, 251, 384 N.E.2d 1309,1311).

Despite the strong policy against considering moot cases, a limited exception is recognized where the magnitude or immediacy of the interest implicated nevertheless warrants the court’s consideration of the issues presented. (See People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 277, 449 N.E.2d 856, 858.) Our supreme court has applied this exception when the issues of the case affect a substantial public interest. See Kennedy, 112 Ill. 2d at 76-77, 491 N.E.2d at 1162; Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235, 437 N.E.2d 638, 640.

The public interest exception was stated by our supreme court in the case of People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769, cert. denied (1952), 344 U.S. 824, 97 L. Ed. 642, 73 S. Ct. 24, as follows:

“[W]hen the issue presented is of substantial public interest, a well-recognized exception exists to the general rule that a case which has become moot will be dismissed upon appeal. [Citation.] Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.” 411 Ill. at 622,104 N.E.2d at 772.

We determine that the public interest exception to the mootness doctrine is applicable to the facts presented here in that the three criteria are substantially satisfied. The issue presented is public in nature as it concerns the authority of the State to appeal circuit court bail determinations in criminal cases, and the resolution of the constitutional question will have an impact upon many persons charged with crimes and released on personal recognizance bonds or cash bonds which the State may consider inadequate. There is a need for an authoritative determination of the constitutional question in order to inform the State’s Attorneys of the limits on their authority in filing appeals. Furthermore, as such appeals by the State purport to be authorized by the legislature through the provisions of sections 110 — 2 and 110 — 6(f) of the Code of Criminal Procedure, we think it likely that this issue will recur in the future. (See In re N.R. (1988), 172 Ill. App. 3d 14, 525 N.E.2d 1193; City of Chicago v. Gordon (1986), 146 Ill. App. 3d 898, 901-02, 497 N.E.2d 442, 445; Hernandez v. Fahner (1985), 135 Ill. App. 3d 372, 376, 481 N.E.2d 1004, 1007.) As our supreme court has recently stated:

“Considering the public interest in and the importance of the question presented, and the necessity of resolution for the sake of public officials elsewhere in the State who must decide whether [they have the right to file appeals of bail determinations from the circuit court], evading review of this question here and in later cases would be injudicious.” People ex rel. Bernardi v. City of Highland Park (1988), 121 Ill. 2d 1, 8, 520 N.E.2d 316, 319, citing Labrenz, 411 Ill. at 622-23, 104 N.E.2d at 772-73.

We then consider the constitutionality of portions of sections 110 — 2 and 110 — 6 of the Code of Criminal Procedure which provide in pertinent part:

“§110 — 2. Release on own recognizance. When from all the circumstances the court is of the opinion that the accused will appear as required either before or after conviction the accused may be released on his own recognizance. ***
* * *
The State may appeal any order permitting release by personal recognizance.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 110 — 2.)
“110 — 6. Grant, reduction, increase, or denial of bail.
§110 — 6. (a) Upon application by the State or the defendant or on its own motion the court before which the proceeding is pending may increase or reduce the amount of bail or may alter the conditions of the bail bond or grant bail where it has been previously revoked.

* * *

(f) The State may appeal any order where the court has increased or reduced the amount of bail or altered the conditions of the bail bond or granted bail where it has previously been revoked.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, pars. 110 — 6(a), (f).

The State is thus statutorily authorized to appeal bail determinations in criminal cases in conflict with Supreme Court Rule 604(a)(1), which specifically provides when the State may appeal interlocutory orders in criminal cases. The rule provides as follows:

“(a) Appeals by the State.
(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963 [Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1]; arresting . judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (107 Ill. 2d R. 604(a)(1).)

This rule was enacted pursuant to the supreme court’s authority to provide for appeals from other than final judgments by the State in criminal cases. (People v. Zook (1988), 177 Ill. App. 3d 62, 63, 531 N.E.2d 1066, 1067, citing People v. Taylor (1971), 50 Ill. 2d 136, 140, 277 N.E.2d 878, 881.) Rule 604(a)(1) is the sole source of authority for appeals by the State in criminal cases (see Zook, 177 Ill. App. 3d at 63, 531 N.E.2d at 1067), and its provisions will determine whether the personal recognizance bond order in this case is appealable by the State. Neither the rule nor section 114 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1) to which it refers makes any reference whatsoever to orders setting, reducing, increasing or denying bail. Plainly, therefore, the State’s appeal of the bail determination in the present case is not provided for in the express language of Rule 604(a)(1). See Zook, 177 Ill. App. 3d at 63, 531 N.E.2d at 1067.

We have noted previously that the State may appeal issues in criminal cases only when provision for such appeals has been made by Rule 604(a)(1). (See People v. Johnson (1983), 113 Ill. App. 3d 367, 370, 447 N.E.2d 502, 504; People v. Montaigne (1980), 86 Ill. App. 3d 220, 222, 407 N.E.2d 1107, 1108.) The supreme court’s authority to regulate appeals flows from the grant of judicial power contained in article 6 of the 1970 Illinois Constitution. (See Ill. Const. 1970, art. VI, §§1, 6, 16.) Article 6, section 6, states in pertinent part: “The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.” (Ill. Const. 1970, art. VI, §6.) Thus “the final authority to prescribe the scope of interlocutory appeals by the State in a criminal case rests exclusively with [the supreme] court [citation], and whether a particular order may be appealed depends solely upon [the court’s] construction of [its] Rule 604(a)(1).” People v. Young (1980), 82 Ill. 2d 234, 239, 412 N.E.2d 501, 503.

The Illinois Constitution grants judicial authority to the supreme court, and such grant is exclusive and exhaustive. (People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541, 544.) The separation of powers clause in our constitution states: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) Thus, if the power under consideration is of a judicial nature, the Constitution has expressly prohibited the legislature from exercising it. (Cox, 82 Ill. 2d at 274, 412 N.E.2d at 544.) Our constitution does not contemplate rigid compartmentalization of the three branches of government, however, and the supreme court has recognized that the legislature is empowered “to enact laws concerning judicial practice which ‘do not unduly infringe upon the inherent powers of the judiciary.’ ” (People v. Walker (1988), 119 Ill. 2d 465, 474, 519 N.E.2d 890, 892-93, quoting People v. Taylor (1984), 102 Ill. 2d 201, 207, 464 N.E.2d 1059, 1062-63.) The Walker court declined to strike down a portion of section 114 — 5(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 5(a)) as unconstitutional because the challenger had failed to establish that the section unduly invaded an area of authority inherent in the judiciary. See Walker, 119 Ill. 2d at 482, 519 N.E.2d at 896-97.

The Walker court further noted that the statutes enacted by our legislature enjoy a strong presumption of validity, and the party challenging a statute bears a heavy burden to establish its unconstitutionality. (See Walker, 119 Ill. 2d at 474, 519 N.E.2d at 893.) Thus, it is clear that the legislature is authorized to exercise constitutional power concurrent with that of the courts and to enact statutes which complement rules of the supreme court; however, “where such a legislative enactment directly and irreconcilably conflicts with a rule of [the supreme] court on a matter within the court’s authority, the rule will prevail.” Walker, 119 Ill. 2d at 475, 419 N.E.2d at 893, citing Cox, 82 Ill. 2d at 274, 412 N.E.2d at 545.

The statutes in question here, which provide for appeals by the State from circuit court bail orders, unduly infringe upon a fundamental prerogative of the courts, that of regulating appeals. Further, these statutes conflict with the supreme court’s rule which defines when such appeals may be taken. We conclude that to the extent sections 110 — 2 and 110 — 6(f) are inconsistent with Supreme Court Rule 604(a)(1), and the decisions defining the scope of that rule, these statutes encroach upon the exclusive power of the supreme court to regulate matters'of appellate practice and procedure. See Cox, 82 Ill. 2d at 275, 412 N.E.2d at 545; see also People v. Tarkowski (1981), 100 Ill. App. 3d 153, 158-59, 426 N.E.2d 631, 634-35.

Accordingly, section 110 — 6(f) and that portion of section 110 — 2 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, pars. 110 — 6(f), 110 — 2) which purports to authorize such appeals are void, and the State’s appeal brought under the authority of these statutes must be dismissed.

Appeal dismissed.

INGLIS and WOODWARD, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM M. MILTON, Defendant- Appellant.
    Second District
    Nos. 2—87—0521, 2—87—0612 cons.
    Opinion filed May 4, 1989.
    Rehearing denied June 14, 1989.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Richard L. Salon, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, the defendant, William Milton, was found guilty of armed robbery, robbery, and theft. The defendant then entered a plea of guilty to a charge of robbery in an unrelated case. At a combined sentencing hearing, defendant was sentenced to 30 years’ imprisonment on the charge of armed robbery and received a concurrent sentence of seven years’ imprisonment on the robbery charge. Defendant appeals.

On appeal, the defendant raises the following issues: (1) whether defendant’s motion for continuance should have been granted; (2) whether the jury should have been instructed on the defense of compulsion; and (3) whether the defendant’s sentence was improper and/ or excessive.

On April 6, 1987, defendant’s case came up on the trial call. The assistant State’s Attorney advised the court that he, in turn, had been advised by the assistant public defender representing defendant that defendant was going to accept a negotiated plea. However, it then appeared that private counsel had been obtained for the defendant. Defendant’s new attorney, Burnell Dixon, introduced himself to the trial court and requested leave to file his appearance on behalf of the defendant. Dixon represented to the trial court that he had been contacted by the defendant’s grandmother and told that defendant was dissatisfied with the public defender and that defendant wished to plead not guilty. The trial court stated that it would not talk to attorney Dixon because he was not attorney of record. After stating further that he would not continue the case, the trial court denied Dixon leave to file his appearance.

Later that day upon learning that attorney Dixon had filed his appearance on behalf of the defendant in the clerk’s office, the trial court accused Dixon of flouting the court’s previous order. However, the trial court ultimately accepted Dixon’s appearance on behalf of defendant and granted the public defender leave to withdraw. The trial court then informed all parties that the trial in the case would commence on April 20,1987.

On April 20, 1987, the State answered ready for trial. Defendant, however, presented a motion for continuance for 45 to 60 days on the basis that his attorney had not been able to interview Bernard Cobb, the codefendant in the case, who had recently been transferred to Joliet. The trial court inquired of the State if it intended to have Cobb testify against the defendant to which the State responded it did not know. The trial court then denied defendant’s motion for continuance and informed all parties that the defendant’s trial would commence in one hour.

When the case was called for trial, the defense counsel renewed his motion for continuance and stated that he had not received all of the necessary discovery from the State. Defense counsel also informed the trial court that he wished to make oral motions to exclude statements made by the defendant and a black female witness. The trial court denied the oral motions, but stated that defense counsel could renew them prior to the witnesses being called during trial. The case was then continued to 1:30 p.m.

When the case was called at 1:30 p.m. for trial, the State informed the trial court that it had been advised by the defense counsel that the defendant intended to raise the affirmative defense of compulsion. The trial court asked if defense counsel had given the State notice of the raising of the defense of compulsion, to which counsel replied that he had given notice of it that day. There then ensued a colloquy between the trial court and defense counsel in which the trial court indicated that it was disturbed by the way defense counsel was proceeding in the case. The trial court indicated that while defendant here would receive due process of law and equal protection, the case would not be delayed. Defense counsel then indicated he would file a written motion raising the defense of compulsion, and the trial court granted him leave to do so.

After jury selection, defendant’s trial commenced.

The testimony at defendant’s trial revealed that the complaining witness, Dale Posedel, who had twice been convicted of burglary, was forced at gunpoint to enter the backseat of a car by a man he identified as the defendant. According to Posedel, defendant sat in the driver’s seat; next to the defendant was a black female passenger; a black male passenger was in the backseat with Posedel. The male passenger emptied Posedel’s pockets, placing the items in his own pockets. Eventually, Posedel was released and notified the police of the incident. He later identified defendant’s picture from a group of photographs and identified him through a two-way mirror as the man who pointed the gun at him. Posedel also identified the gun found in the vehicle defendant was driving as the gun defendant possessed during the incident.

Acting on the description of a vehicle involved in a robbery which she had received in a dispatch, Waukegan police officer Margaret Ann Bartlett stopped the vehicle driven by the defendant. Both the defendant and his male passenger were frisked. When Officer Bartlett discovered an empty holster in the pocket of the male passenger, he fled the area. A gun was found in the front seat of defendant’s vehicle, closer to the passenger side.

Officer John Moran of the Waukegan police department testified that on February 9, 1987, he was working on an armed robbery investigation, and at approximately 11:20 p.m., he interviewed the defendant. Defense counsel made an oral motion to suppress any statements made by the defendant. Following a hearing outside the presence of the jury, the trial court denied the motion.

Due to the issues raised in this appeal, it is necessary to set out the testimony regarding defendant’s statement to police, as well as the testimony of the defendant and his witness in some detail.

After being advised of his Miranda rights and agreeing to speak to Waukegan police officer Paul A. Hendley, defendant related to Hendley that earlier in the evening of February 9, 1987, he had been at the home of Juan Mendesz. There he met a man by the name of Bernard. According to defendant, Bernard was the individual who ran from the scene after they were stopped by Officer Bartlett and was the individual who had the gun. Defendant and Bernard began driving around together and picked up a black female whose name defendant did not know. The female sat in front while Bernard sat in the backseat. Defendant told Hendley that they had become lost when they spotted an individual on a bicycle. The defendant specifically denied that he asked this individual for directions or that he pointed a gun at him. Defendant knew Bernard had a gun in his possession, for he saw it when he turned on the interior light in the automobile. Defendant further told Sergeant Hendley that this activity had not been preplanned but was spur of the moment.

After the State rested, Holanda Hicks testified for the defense as follows. On February 9, 1987, she and the defendant drove to a friend’s house. Bernard Cobb also arrived. She recalled that Cobb was drunk and was playing around in the house when he pulled a gun which he pointed at the room and at the defendant. She told the defendant that she wanted to leave, so defendant made the excuse that they had to return the automobile to the witness’ mother. As they were backing out of the driveway, Bernard Cobb ran out of the house and sat in the backseat of the automobile on the passenger side, asking to be taken to his girlfriend’s house. When defendant stated that they did not have much gasoline, Cobb told him he would get some gas. According to the witness, she was afraid of Cobb when he got into the automobile. As they proceeded, Cobb gave directions. Suddenly Cobb told the defendant to stop the automobile. Cobb then called to Posedel and told him to approach the automobile. Cobb also told the defendant to get out of the automobile. Defendant did as he was ordered and told Posedel to come to the automobile. According to the witness, the next thing she heard was the back door of the automobile opening and Cobb telling Posedel to get inside. Cobb ordered the defendant to drive, and after a short period of time, she heard Cobb order Posedel to get out of the car. The witness stated she did not see anything in the backseat of the car because she was scared. After Posedel had left the car, the defendant started pleading with Cobb to be allowed to take the witness home. The defendant did take her home and told her he would be returning shortly.

On cross-examination, Miss Hicks acknowledged that she considered the defendant to be her boyfriend. She also professed her love for the defendant and her desire not to see him or anyone else get into trouble. She also acknowledged she had previously made a statement to Office Lou Moore of the Waukegan police department regarding this incident. She insisted that Officer Moore did not allow her to tell her side of the story. She also acknowledged that she did not tell the police that Cobb ordered the defendant out of the car, but that was due to her being afraid. She specifically stated that she did not tell Officer Moore that her boyfriend pointed a gun at Posedel.

Defendant testified to many of the same events that Miss Hicks testified to. In the defendant’s opinion, Bernard Cobb was either high or drunk or both. Defendant observed Cobb wrestling with Mendesz and slapping him against the wall. Mendesz did not appear to want to fight back. Cobb then pulled a gun and began playing with it, twirling it around his finger. Cobb asked the defendant what he was going to do. Defendant responded that he was not going to do anything. Defendant recalled that he did not know if Cobb was going to shoot him. He was frightened for himself, as well as for his girlfriend, Miss Hicks. Miss Hicks whispered in his ear, and defendant then told Mendesz that they had to leave to return Miss Hicks’ mother’s car to her. As they were backing out of the driveway, Cobb came out and got into the rear passenger seat of the automobile and asked them to take him to his girlfriend’s house. Defendant told Cobb that he did not have much gas, to which Cobb responded that he would give him gasoline money. After riding around awhile, they observed an individual on a bicycle. Cobb rolled down his window and yelled to the individual to approach the car. He then ordered the defendant to get out of the automobile and tell the man to get into the automobile. The defendant stated that he complied with Cobb’s order and pointed at the automobile as he told Posedel to get in. The defendant denied having a gun in his hand, but stated he had in his hand a pair of dark gloves with orange or brownish fur. As Posedel approached the car, defendant noted that Cobb had his hand on the gun. Cobb opened the rear passenger door and told Posedel to get in. As he got back in the car, defendant looked and saw that Cobb was pointing the gun at Mr. Posedel’s ribs. According to defendant, Cobb then instructed him to drive, so he pulled away slowly. Shortly thereafter, Cobb told Posedel to get out of the automobile and not to run. Cobb then wanted to visit a friend just down the street, but defendant asked him if he could take Miss Hicks home first. Defendant explained that at the time, he felt Posedel would report the robbery to the police, and he did not want Miss Hicks to get into any trouble. After Miss Hicks was dropped off, Cobb moved to the front seat. After driving around for a while, the defendant observed a police car make a U-turn and come up behind the automobile he was driving. Defendant stated that he pulled over immediately because he knew he was going to be stopped. The police officer asked defendant to exit the car, and she proceeded to frisk him. As she was frisking Cobb, he ran from the scene.

On cross-examination, defendant denied making any statement to Officer Hendley. Defendant acknowledged that Cobb never pointed the gun directly at him, but he stated that when Cobb told him to get out of the car, he had his hand on the gun. He also admitted that Cobb had not threatened him with harm. On redirect examination, defendant again asserted that he was afraid that Cobb was going to harm him and his girlfriend, Miss Hicks, on the night of the incident.

On rebuttal, the State called Officer Lou Moore of the Waukegan police department. Officer Moore testified that on February 12, 1987, he had a conversation with Rolanda Hicks in which she stated that the defendant pointed a gun at Posedel and told him to get into the automobile.

At the conference on jury instructions, defendant tendered a compulsion defense instruction. The trial court refused to give the instruction on the basis that there was nothing in the record to show that the defendant reasonably believed death or great bodily harm would ensue if he did not perform the criminal conduct.

In his motion for a directed verdict, defendant again brought up the compulsion defense and argued that since the State had not offered any evidence to refute the defendant’s claim of compulsion, the affirmative defense of compulsion was uncontroverted, and the trial court was required to direct the verdict for the defendant. While agreeing with the defendant’s reasoning, the trial court refused to direct the verdict for the defendant, since the trial court was of the opinion that the record did not contain any facts showing compulsion.

The jury returned a verdict, finding the defendant guilty of armed robbery, robbery, and theft. Defendant was sentenced to 30 years’ imprisonment on the charge of armed robbery. This appeal followed.

Defendant contends, first, that he was denied his constitutional right to counsel when the trial court denied defendant’s motion for continuance.

In People v. Clayborne (1977), 47 Ill. App. 3d 202, 204-05, the court stated as follows:

“A trial court’s refusal to grant a motion for continuance will ordinarily not be disturbed on appeal without some showing of a clear abuse of discretion. [Citations.] A defendant is constitutionally entitled to counsel of his own choosing, if the exercise of that right does not thwart the administration of justice by inordinately delaying the trial. [Citations.]
The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. [Citations.] A conviction will be reversed when it appears that the refusal of additional time in some manner embarrassed the accused, impeded the preparation of his defense or prejudiced his rights.”

While the defendant relies on Clayborne as authority for his position on this issue, we find that case factually distinguishable from the case at bar. In that case, a petition to revoke Clayborne’s probation had been set for hearing on August 27. Clayborne was represented by the public defender on the revocation petition. The day before, Clay-borne was indicted on the charges which formed the basis of the petition to revoke probation. Clayborne asked for and received a continuance to retain private counsel to represent him. The next day, the public defender asked for a continuation of the revocation hearing on the ground that Clayborne wished to have the same attorney representing him at both the revocation hearing and the trial on the underlying offenses. The trial court denied the continuance, and following a hearing, revoked Clayborne’s probation and sentenced him to the penitentiary.

In reversing and remanding for a new revocation hearing, the reviewing court determined that, given the fact that Clayborne was facing two different proceedings, the revocation hearing and the trial on the underlying offenses, each of which required a différent standard of proof, there was the possibility that with different counsel representing him on each, one attorney might elect a strategy in one case that would unknowingly conflict with the strategy adopted by the other attorney. Therefore, the court held that it was reversible error to force a defendant into an early probation revocation hearing by denying defendant a continuance to secure counsel of his own choosing. 47 Ill. App. 3d at 205.

The case before us does not involve a revocation proceeding complicated by a trial on the charges forming the basis of the revocation petition. There is only one standard of proof involved in this case. We note that defendant in this case was charged with the instant offenses on February 23, 1987. The case came on for trial on April 6, 1987, although it appeared initially that defendant was going to enter a negotiated plea. The appearance of defendant’s privately retained counsel, Mr. Dixon, was accepted, albeit somewhat reluctantly, by the trial court. Although initially the trial court denied defendant’s request for a continuance, the trial court eventually relented and the matter was continued for trial to April 20, 1987. No objection to that date was made by the defendant or his counsel. We also note, in passing, that defendant was free on bond, subject to a curfew, prior to his conviction.

On April 20, 1987, defendant’s counsel again requested a continuance based upon the fact that he had only been retained on April 5 and that he had attempted to interview Bernard Cobb only to find that he had been transferred to Joliet, Illinois. After it was determined that the State was uncertain as to whether Cobb would be called as a witness, the trial court denied the motion. When the case was called an hour later, defense counsel renewed his motion for continuance on the basis that the discovery he had received from the State was incomplete. The trial court instructed the State to supply the defendant with the missing discovery prior to the start of the trial, which was then scheduled for 1:30 p.m. that day.

Prior to the commencement of the trial, defense counsel informed the State that he was raising a compulsion defense on behalf of the defendant. When the trial court inquired as to the notice given to the State of the defendant’s intent to raise such an affirmative defense, defense counsel renewed the motion for continuance. The trial court did permit the defendant to raise the affirmative defense of compulsion. Further, defense counsel was also permitted to conduct a hearing to suppress statements of the defendant during the trial. These facts present a vastly different situation than the one in People v. Clayborne.

In People v. Tyler (1984), 128 Ill. App. 3d 1080, 1097, the court stated:

“Before a reviewing court finds that a trial court abused its discretion in denying a continuance, there must be a showing that the defendant suffered actual prejudice due to the attorney’s lack of preparation. [Citation.] Where the record shows that the trial attorney appeared fully prepared and conducted representation of the accused with diligence and skill, courts are reluctant to find prejudice to the movant’s rights from denial of the motion. [Citation.] A court’s denial of a request for additional time will not be subject to reversal absent a showing of prejudice thereby.”

We agree with the State that despite the denial of a continuance on April 20, the record in this case demonstrates that defendant was adequately represented at trial. Defense counsel raised an affirmative defense, conducted a hearing to suppress defendant’s statements, cross-examined State’s witnesses, and presented testimony on defendant’s behalf. (See People v. Hayes (1972), 52 Ill. 2d 170.) That defense counsel’s efforts on defendant’s behalf did not succeed does not require us to conclude that counsel had insufficient time to prepare, particularly in light of the fact he failed to object at the time the April 20 trial date was set. While defendant charges that he was prejudiced by defense counsel’s inability to interview Bernard Cobb, Cobb neither testified against the defendant, nor has defendant shown, other than by speculation and conjecture, what facts defense counsel could have gleaned from that interview that would have changed the outcome of defendant’s trial.

Finally, defendant argues that the trial court’s clear animosity towards defense counsel affected its ability to properly exercise its discretion in ruling on whether or not to grant the continuance requested by the defendant. We would agree with the defendant that at certain times the record in this case reflects a certain “frostiness” between defense counsel and the trial court in their exchanges. This apparently stems from events preceding trial involving collisions between the trial court’s desire to control the flow of cases in his courtroom and defense counsel’s goal to advocate on behalf of his client. The record reflects that both goals were met and not at the defendant’s expense. The record does not reflect that any displeasure with defense counsel was visited upon the defendant. In fact, the trial court informed defense counsel that, “[T]his young man [the defendant] is going to receive his full day in court with all the safeguards of all the rights that is [sic] guaranteed him.”

We conclude, therefore, that the defendant was not deprived of his right to counsel by the denial of his motion for continuance.

Next, the defendant contends that the trial court erred in refusing to give the compulsion defense instruction tendered by the defendant.

The defense of compulsion is governed by statute. A defendant may not be found guilty of a crime if he assisted in the commission of the crime “under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 7 — 11.) In Illinois, compulsion is an affirmative defense. When the compulsion defense has been raised by the defendant and some evidence introduced to support it, the State has the burden of overcoming this evidence by proof beyond a reasonable doubt. People v. Colone (1978), 56 Ill. App. 3d 1018, 1021.

A defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which such defense is based are inconsistent with the defendant’s own testimony, and very slight evidence upon a given theory of a case will justify the giving of an instruction. (People v. Bratcher (1976), 63 Ill. 2d 534, 540.) In People v. Larry (1986), 144 Ill. App. 3d 669, this court addressed the question of whether or not an affirmative defense instruction ought to have been given, stating as follows:

“The quantum of proof necessary to raise an affirmative defense is evidence sufficient to raise a reasonable doubt as to defendant’s guilt. [Citations.] A criminal defendant is entitled to have a jury instructed on any legally recognized affirmative defense theory on which he has presented ‘some evidence.’ [Citations.] There must, however, be enough evidence to require that the issue be submitted to the jury. Stated otherwise, unless the evidence before the trial court is so clear and convincing as to permit the court to find as a matter of law that there is no affirmative defense, the factual issue — that is, whether the defendant should be relieved of criminal liability by reason of his affirmative defense — must be determined by the jury with proper instruction as to the law applicable. [Citations.] The issue, therefore, before the trial court below was whether the evidence before it concerning the defendant’s intoxication was so clear and convincing that it could be said as a matter of law there was no affirmative defense of involuntary intoxication.” 144 Ill. App. 3d at 676.

In refusing to give defendant’s tendered instruction on compulsion, the trial court determined that the record revealed no facts showing that the defendant was compelled to commit the criminal acts of which he was convicted. The State maintains, and we agree, that the testimony of both the defendant and Miss Hicks, if believed, merely established that they were afraid of Cobb because he was in possession of a gun and was high on drugs or alcohol or both. Neither defendant nor Miss Hicks testified that he or she was threatened with death or great bodily harm if defendant did not follow Cobb’s instructions. Any fear of Cobb on defendant’s part appeared to come from Cobb’s mere possession of the gun, not because he actually threatened defendant or Miss Hicks with the gun. Given that fact, this case is distinguishable from People v. Pegram (1988), 124 Ill. 2d 166, relied upon by defendant. In that case, our supreme court held that the requirement of “some evidence” in order to instruct on the affirmative defense of compulsion was satisfied by the defendant’s testimony that “he was forced, at gun point, to lead the robbers to Mackin, open the freezer door, lie on the floor, and then lead the robbers to Mackin’s car.” Pegram, 124 Ill. 2d at 173.

We are of the opinion that the trial court correctly ruled as a matter of law that there is no affirmative defense of compulsion in this case.

Finally, the defendant contends that his 30-year sentence of imprisonment for armed robbery is excessive. He argues that the sentence is fundamentally unfair and is disparate with the sentence imposed on Bernard Cobb, his codefendant. Cobb received a sentence of 8V2 years for armed robbery stemming from the same incident involving the defendant.

It is not the function of a reviewing court to serve as a sentencing court, and absent an abuse of discretion, a sentence will not be disturbed on review. (People v. Jackson (1986), 145 Ill. App. 3d 626, 646.) At the same time, however, fundamental fairness and respect for the law require that defendants similarly situated should not receive grossly disparate sentences. “Similarly situated” refers to rehabilitation or the nature and extent of participation. (145 Ill. App. 3d at 646.) However, a disparity in sentencing may be supported by a more serious criminal record or greater participation in the offense than the individual with whom defendant’s conduct is compared. (145 Ill. App. 3d at 646.) In People v. Jackson, following a jury trial, Jackson was sentenced to an extended term of 80 years for murder, while his codefendant, who pleaded guilty, received a sentence of 30 years. Jackson and his codefendant had similar criminal histories, except that the codefendant had served time in the penitentiary, whereas Jackson had not. Jackson was 22 and the codefendant was 27 at the time of their respective sentencings. The court reduced Jackson’s sentence to 30 years based on the fact that the evidence showed the co-defendant was the more active participant in what the court termed a “brutal and heinous crime.” 145 Ill. App. 3d 647.

The State argues that, because the record here does not disclose the factors relied on by the trial court in sentencing Cobb, this court should reject defendant’s argument as to the disparity in sentencing. The mere fact that one defendant receives a substantially longer sentence than another does not, by itself, establish a violation of fundamental fairness. (People v. Kline (1982), 92 Ill. 2d 490, 508.) A disparity in sentences will not be disturbed where it is warranted by differences in the nature and extent of the defendant’s participation in the offense, and their respective criminal records. (92 Ill. 2d at 508.) It is the defendant’s burden to produce a record from which a rational comparison of sentences can be made, and when defendant has failed to do so, the court cannot determine whether the trial court abused its discretion in imposing the sentence complained of. 92 Ill. 2d at 509.

The defendant has furnished this court with a copy of the transcript of Bernard Cobb’s sentencing hearing. Cobb was sentenced prior to defendant’s trial and by the same judge who sentenced the defendant. The transcript reveals that Cobb had entered into a negotiated plea of guilty to the armed robbery of Dale Posedel in exchange for a sentence of 8V2 years’ imprisonment, and he agreed to testify against the defendant, if called to do so. Cobb was 18 at the time of his sentencing. He was also on probation for burglary at the time of the Posedel armed robbery, which was revoked, and he was sentenced to seven years’ imprisonment to be served concurrently with his sentence for armed robbery. Cobb waived his right to a presentence report, so the complete status of his record is unknown.

The record here reveals that both defendant and Cobb were young men at the time of the offense; defendant was 20 and Cobb was 18 at the time of their respective sentencings. Cobb was on probation for burglary at the time of the instant offense. The defendant had no prior conviction, but his presentence report indicated that there were several warrants outstanding for his arrest, one of which was for robbery. As for the relative participation of each in the armed robbery of Dale Posedel, the defendant argues that at his sentencing hearing, Cobb stated that he did not see a gun in defendant’s hand. However, Posedel testified that defendant had the gun and threatened him with it if he didn’t follow defendant’s orders. According to Posedel, Cobb took the items from Posedel’s pockets.

It is proper for a trial court to grant leniency in sentencing a defendant who by his plea ensured prompt and certain application of correctional measures to him, acknowledged his guilt, showed a willingness to assume responsibility for his conduct, and cooperated in the successful prosecution of other offenders. (People v. Massarella (1979), 80 Ill. App. 3d 552, 573.) Taking into consideration that although his was not a passive role in the commission of the offense against Posedel, and he had a prior conviction, we cannot say that the facts that Cobb was not armed, pleaded guilty to the offense, and agreed to testify against the defendant, if necessary, were not sufficient to justify the imposition of a lesser sentence on him than on the defendant.

Nonetheless, while we agree that the trial court committed no error in imposing a different sentence on the defendant than the one imposed on Cobb, we are of the opinion that a 22-year difference is too great and that defendant’s sentence should be reduced.

In People v. Gibbs (1977), 49 Ill. App. 3d 644, the court in reducing a 19-year-old defendant’s 50- to 100-year sentence for murder to not less than 15 years and not more than 45 years, stated as follows:

“This State’s fundamental law requires that ‘All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.’ (Emphasis added.) [Citation.] Usually the cases have treated this mandate as calling for a balancing of the retributive and rehabilitative purposes of punishment. Looked at from this perspective, one might justify a sentence which has been given merely by determining whether or not the trial judge considered the possibility of rehabilitation as compared to a proper retributive sanction based upon the seriousness of the offense and the character of the defendant and his conduct. If this be the appropriate analysis any record which demonstrates an acknowledgement of the rehabilitative purpose could be affirmed providing the sentence was within the statutory limits.
The constitutional mandate, however, requires more. Not only must the judge consider the rehabilitative or restorative factor, he must also act on it as an objective of his sentence. Some degree of discretion is permitted *** but the judge may not resign to total retribution one who has a chance of future restoration to useful citizenship in the free society.” 49 Ill. App. 3d at 648.

The offense of armed robbery carries with it a mandatory minimum penalty of 6 years’ imprisonment and a maximum penalty of 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3).) The trial court imposed the maximum penalty, citing the facts that defendant had lied to him at the time of his bond hearing by stating that he had not been in trouble before, when, in fact, there were outstanding warrants for his arrest; that he used a gun to commit the offense; and he appeared to have no remorse, despite defendant’s statement at the sentencing hearing that he was ready to be rehabilitated.

Defendant’s conviction of armed robbery presupposes some kind of weapon was used in the commission of the offense. We note also that despite the outstanding warrants, defendant has never previously been convicted of a crime. Moreover, “[a] defendant is not required to admit his guilt and failure to do so should not result in an enhanced sentence.” People v. Sherman (1977), 52 Ill. App. 3d 857, 859.

While the trial court’s desire to discourage others from criminal activity by the imposition of lengthy sentences is nobly motivated, given the defendant’s youth, lack of a prior record, and the fact that the victim was uninjured in this case, we reduce the defendant’s sentence of 30 years’ imprisonment to 12 years’ imprisonment pursuant to the authority given this court under Supreme Court Rule 615(b)(4). 107 Ill. 2d R. 615(b)(4).

The defendant’s judgment of conviction is affirmed, but the sentence imposed thereon is modified as specified.

Judgment affirmed; sentence modified.

NASH and INGLIS, JJ., concur.


text:
    DAVID WOODALL, Plaintiff-Appellee, v. GEOFFREY BOORAS et al., Defendants-Appellants.
    Second District
    No. 2—88—0982
    Opinion filed May 9, 1989.

      John P. McTigue, of McKenna, Storer, Rowe, White & Farrug, of "Wheaton, for appellant Economy Fire and Casualty Company.
    Wiley W. Edmondson, of Brady, McQueen, Martin, Collins & Jensen, of Elgin, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, David Woodall, filed an action in the circuit court of Kane County seeking a declaration that the policy of automobile insurance issued by defendant, Economy Fire & Casualty Company (Economy), to Jesus Alanis, Sr. (Alanis Sr.), provided coverage to Geoffrey Booras, who was involved in an automobile accident with Woodall while driving a vehicle owned by Alanis Sr. Economy declined coverage based on the assertion that Booras did not have permission to use the vehicle. After a bench trial, the trial judge entered judgment in favor of Woodall and against Economy. This appeal followed. We reverse.

This case turns upon the application of an “omnibus clause” contained in a policy of automobile liability insurance, which extends coverage to persons in addition to the named insured. Plaintiff suffered personal injuries when the vehicle in which he was riding was struck by a pickup truck driven by Booras. The pickup truck was owned by Jesus Alanis, Sr., who had given permission to his son, Jesus Alanis, Jr. (Alanis Jr.), to operate the truck and from whom Booras had taken the truck without permission.

Economy issued a policy of automobile liability insurance covering the pickup truck which Booras was driving at the time of the accident involving Woodall. The policy contained an omnibus clause, providing: “Anyone else is an insured while using with your permission a covered auto you own.”

It is undisputed that Booras did not have permission to use the pickup truck at the time of the accident, but it was also undisputed that the insured, Alanis Sr., had given his son, Alanis Jr., permission to use the pickup truck.

Alanis Jr. is 27 years old and had known Booras since seventh grade. The two were friends, had gone to school together, and had periodically seen each other socially over the years. At the time of the accident, Booras lived with his parents. Alanis Jr. had been to the home of Booras’ parents, and Booras had been to Alanis Jr.’s parent’s home. The two had worked for Chuck McCarthy doing landscaping.

Booras called Alanis Jr. about going to McCarthy’s residence to pick up a barbecue grill. They stopped at a McDonald’s restaurant on the way to McCarthy’s residence. Booras talked to a girl who worked there. As they left McDonald’s, Booras told Alanis Jr. that he liked the girl. Alanis Jr. overheard Booras asking the girl what time she got off work.

When they arrived at McCarthy’s residence, McCarthy was working on some “bee houses.” The two went with McCarthy in McCarthy’s pickup truck to get supplies for the “bee houses.” Later that afternoon, they decided to have a cookout at McCarthy’s. Alanis Jr. and Booras drove to the Jewel in Elgin to pick up meat for the cookout. After they returned from the store, Booras started up the coals. McCarthy’s girlfriend was also present, and they had a pork chop for everyone.

Alanis Jr. testified that throughout the afternoon, Booras was eager to return to the McDonald’s in Elgin to pick up the girl. He testified that at about “3:00, 3:30 or so” Booras asked Alanis Jr., “Could you take me over to McDonald’s? I want to pick the girl up.” At that point, Alanis Jr. was fishing at a pond located on the premises and responded “[a]s soon as I get done fishing, I will take you there.” Booras mentioned going to get the girl at McDonald’s two or three times. At one point, Booras even got into the Alanis pickup truck and started it. Alanis Jr. told him to get out of the truck and that, “[a]s soon as I am done, I will take you to McDonald’s to pick up the girl.”

Booras then went back to cooking the meat. Shortly thereafter, when Alanis Jr. was fishing 80 yards from the pickup, Booras drove off in the pickup truck. Alanis Jr. dropped his pole and ran after the truck. Alanis Jr. was to the side of the truck, while Booras was looking straight toward the street.

Booras had left his meat still on the grill. Twenty to thirty minutes later, they heard sirens. The accident occurred on Plank Road, on the way to Elgin, where the McDonald’s was located. The pickup truck was “totalled” in the accident, with the cab knocked off the frame and the engine out.

Alanis Jr. testified that when Booras drove off in the pickup truck, Alanis Jr. believed that he was going to the McDonald’s to pick up the girl and bring her back.

It was further stipulated that neither Booras nor Woodall would testify at trial but, if called as a witness, Booras would have testified that he had no recall about anything that happened on the day of the occurrence.

Pursuant to a request to admit facts it was uncontested that Alanis Sr. did not give his permission to Booras to use the vehicle in question, nor did Alanis Jr. give his permission to Booras; that Booras took the vehicle without obtaining the permission of either Alanis Sr. or Alanis Jr; that Booras took the vehicle without notifying either Alanis Sr. or Alanis Jr. that he intended to do so and that neither of the Alanises had ever previously given permission to Booras to drive the vehicle in question.

Plaintiff acknowledges in his brief that (1) it is undisputed that Booras took the subject vehicle over the express objection of Alanis Jr. and clearly without either the express or implied permission of Alanis Sr. and (2) it is further undisputed that Booras was told on at least two occasions on the day of the occurrence that he was not to drive the subject vehicle.

The trial judge in rendering his decision stated, “clearly he [Booras] took it without anybody’s permission and over the protests of Alanis, Jr. However, I don’t think it raises itself to the level of conversion or conduct that would be described in the meaning, ‘or the like,’ in these cases, and, accordingly, I will find there is coverage under the facts of this case.”

Defendant maintains that the conduct of Booras, supported by the uncontested facts, amounted to a “theft, conversion or the like.” Plaintiff contends that the “initial permission doctrine” provides coverage for third parties who drive the vehicle after initial permission has been given to the original permittee, even where the third party does not have permission to use the vehicle. The trial court found Booras had no permission, but his conduct did not amount to a conversion or the like.

The issue presented is a question of law. Did the trial judge properly apply or interpret the “theft, tortious conversion or the like” exception to the “initial permission doctrine,” considering the uncontested facts before it? As an appellate court, we take a deferential approach to the findings made below on disputed factual issues; but the scope of our review on questions of law is independent, not deferential. The facts which we find controlling are not disputed, and, in this case, the legal result of those undisputed facts is solely a question of law. Havens v. Miller (1981), 102 Ill. App. 3d 558, 567.

We first consider Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333. In Maryland Casualty, the insurance company issued a policy to Robert Smythe, as the named insured. (54 Ill. 2d at 335.) The policy contained an omnibus clause extending liability coverage to “any other person using such automobile, with the permission of the named insured.” (54 Ill. 2d at 335.) Smythe’s son, who had permission to drive the vehicle, allowed a friend to drive it. (See 54 Ill. 2d at 337.) The friend, while driving the vehicle, was involved in an accident in which others were injured. (54 Ill. 2d at 337.) Smythe had told his son not to permit anyone else to drive the vehicle. 54 Ill. 2d at 337-38.

The court noted that Illinois followed the rule that if the named insured initially gave permission to another to use the insured vehicle, a deviation from the authorized use did not serve to terminate the permission. (54 Ill. 2d at 341.) The court followed the reasoning of the supreme court of New Jersey in Odolecki v. Hartford Accident & Indemnity Co. (1970), 55 N.J. 542, 264 A.2d 38, wherein it was stated:

“ ‘We fail, however, to see the distinction between a case where a first permittee exceeds the scope of permission in terms of time, place, or purpose, and a case where he exceeds the scope of permission in terms of use of the vehicle by another.’ ” (Maryland Casualty, 54 Ill. 2d at 341, quoting Odolecki, 55 N.J. at 549-50, 264 A.2d at 42.)

The court found that once initial permission had been given by the named insured coverage was fixed “ ‘barring theft or the like.’ ” (Maryland Casualty, 54 Ill. 2d at 341, quoting Odolecki, 55 N.J. at 550, 264 A.2d at 42.) The court therefore held that coverage was extended to the third party. Maryland Casualty, 54 Ill. 2d at 343.

The doctrine of initial permission was again considered in United States Fidelity & Guaranty Co. v. McManus (1976), 64 Ill. 2d 239. In McManus, the insured had left her car with a friend to whom she had given permission to drive the car. (64 Ill. 2d at 241.) The friend’s brother used the car and was involved in an accident. (64 Ill. 2d at 240.) It was undisputed that the insured had not given her friend’s brother permission to use the car. (64 Ill. 2d at 241.) However, the friend had given her brother permission to use the car on the day before the accident, and it did not appear that anything was said as to whether the brother did or did not have permission to use the car again. 64 Ill. 2d at 241-42.

In finding that the brother was covered, the court stated:

“We see no difference in principle between a situation where the first permittee exceeds the scope of his authority, as in Maryland Casualty, and the present situation where the first permittee has allegedly failed to grant permission to the operator of the vehicle. Adoption of the plaintiff’s position would represent a departure from the broad ‘initial permission’ rule adopted in Maryland Casualty, and it would propel the courts into further prolonged collateral inquiries of the sort which that decision sought to eliminate. We adhere to the view expressed in Maryland Casualty that where an insurer elects to include in its policy a broad provision extending liability coverage to persons operating or using a car with the permission of the owner, a further grant of permission from the initial permittee need not be shown in order to invoke the coverage.” (64 Ill. 2d at 243.)

However, the court went on to state that the insurer was not liable where it could be proved that the operator of the car had obtained possession by a theft or a tortious conversion. 64 Ill. 2d at 243.

In Western States Mutual Insurance Co. v. Verucchi (1977), 66 Ill. 2d 527, the court again considered the initial permission doctrine. In Verucchi, Robert Elmendorf, the 16-year-old son of the named insured, William Elmendorf, was using his father’s car with the father’s express permission and was accompanied by two friends, one of whom was John Verucchi, the defendant in the declaratory judgment action. (66 Ill. 2d at 529.) The three boys were close friends and frequently went out together socially. (66 Ill. 2d at 529.) Robert parked the car in a parking lot across the street from a drive-in restaurant. (66 Ill. 2d at 529.) He removed the keys from the ignition and left them in the car. (66 Ill. 2d at 529.) After staying at the drive-in for a period of time, the three decided to leave. (66 Ill. 2d at 529.) John Verucchi and the other boy returned to the car and were waiting by the car while Robert Elmendorf continued to talk to one of his friends across the street at the drive-in. (66 Ill. 2d at 529.) At some point, Verucchi found the car keys and attempted to drive across the street to pick up Robert at the drive-in parking lot. (66 Ill. 2d at 529-30.) Because heavy traffic prevented him from going directly to the lot, Verucchi attempted to drive around the block to return to the drive-in. (66 Ill. 2d at 530.) Three or four blocks away he collided with another vehicle. (66 Ill. 2d at 530.) Verucchi had never been told that he either could or could not drive the automobile in question. (66 Ill. 2d at 530.) William Elmendorf had instructed his son never to permit anyone else to drive the car. (66 Ill. 2d at 530.) Additionally, there was evidence that at least one other friend of Elmendorf had driven the subject vehicle. 66 Ill. 2d at 530.

The court in Verucchi found that the rationale of both McManus and Maryland Casualty was to bring simplicity to what had become a complex area of the law. (66 Ill. 2d at 531.) The court further stated that it was not the purpose of McManus to substitute inquiries into the technicalities of a tortious conversion for inquiries into the issue of permission. (66 Ill. 2d at 532.) The court stated that the term “tortious conversion” as used in McManus meant “a substantial interference with or deprivation of an owner’s rights in his vehicle.” (66 Ill. 2d at 532.) The court continued:

“In our judgment, insurance coverage is provided under the rule in McManus unless the subsequent user of the vehicle gained possession of it with the intent to permanently (theft) or indefinitely (tortious conversion) deprive the owner or the initial permittee of his rights therein.” 66 Ill. 2d at 532.

See also American County Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 242-43.

The court then held:

“In this case it seems apparent that John Verucchi’s intent was merely to drive the Elmendorf automobile across the street a total distance of 50 to 100 feet, and there await Robert Elmendorf — cm act not entirely for his own benefit. Even though he could not make a left turn and heavy traffic forced him to drive further, his intent remained the same, i.e., to get into the Igloo parking lot and await Robert Elmendorf. There is no indication of any intent to deprive William or Robert Elmendorf of the car for even a brief period of time.” (Emphasis added.) Western States Mutual Insurance Co. v. Verucchi (1977), 66 Ill. 2d 527, 532.

We find that the instant case is distinguishable from Maryland Casualty, McManus, and Verucchi. In Maryland Casualty, the driver had at least implicit permission to drive the car. (See Maryland Casualty, 54 Ill. 2d at 337.) In McManus, the driver had been given permission to drive the car on a previous occasion, and nothing was said about permission on the day of the accident. (McManus, 64 Ill. 2d at 241-42.) And, in Verucchi, there was nothing said about permission (Verucchi, 66 Ill. 2d at 530), and the driver’s intent was to drive a total distance of 50 to 100 feet partially for the benefit of the individual who had been given permission (66 Ill. 2d at 532). In contrast, the facts in the instant case show that Alanis Jr. ordered Booras out of the truck a short period before Booras actually took the truck. The evidence also showed that Alanis Jr. ran after the truck when Booras did take it. In short, the driver in the instant case was specifically told not to drive the vehicle. This case is also distinguishable from Verucchi because, in the instant case, the driver’s intent was to deprive both the insured and the initial permittee for a greater period of time than was the case in Verucchi. In the instant case, Booras intended to use the vehicle long enough to go into town and pick up a girl from the McDonald’s. It is further clear that this action was not in any way for the benefit of Alanis Jr. and is equally clear that it involved a distance of greater than 50 to 100 feet as in the Verucchi case.

Tortious conversion is “ ‘[a]ny unauthorized act by which an owner is deprived of his property permanently or indefinitely, or the exercise of dominion over property inconsistent with the rights of the owner, is a conversion.’ ” Verucchi, 66 Ill. 2d at 531, quoting Knight v. Seney (1919), 290 Ill. 11, 15.

In the instant case, Booras was unauthorized by either the owner or first permittee; his act deprived the owner and first permit-tee of the pickup truck for an indefinite time, and he clearly exercised dominion over the pickup truck inconsistent with the rights of the owner and first permittee. We thus find that the conduct of Booras amounted to substantial interference and deprivation of the owner’s rights in his vehicle. (See Verucchi, 66 Ill. 2d at 532.) Consequently, we find that the circuit court was incorrect in ruling that defendants’ policy provided coverage. The judgment of the circuit court is reversed.

Reversed.

NASH and REINHARD, JJ., concur.


author: JUSTICE SPITZ

text:
    PAUL STASKE, Plaintiff-Appellee, v. THE CITY OF CHAMPAIGN, Defendant-Appellant.
    Fourth District
    No. 4—88—0748
    Opinion filed April 28, 1989.
    Modified on denial of rehearing June 14, 1989.

      Frederick C. Stavins, City Attorney, of Champaign (Rochelle A. Funderburg, Assistant City Attorney, of counsel), for appellant.
    Mark D. Lipton, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

The defendant City of Champaign appeals from an order of the circuit court of Champaign County entering summary judgment in favor of the plaintiff Paul Staske and against the defendant, and enjoining the defendant from refusing to disclose witness information and statements contained in a traffic accident report which had been requested by the plaintiff under the Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.). For the reasons that follow, we reverse.

The plaintiff Paul C. Staske was involved in a traffic accident that occurred on May 2, 1988. On May 16, 1988, the plaintiff filed an FOIA request with the defendant City of Champaign (City), requesting a copy of the Champaign police traffic accident report concerning the aforementioned accident. (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.) On May 16, 1988, the City delivered a copy of the accident report to the plaintiff but informed the plaintiff that it was unable to comply with the plaintiff’s request in its entirety and that certain portions of the report were deleted. (Ill. Rev. Stat. 1987, ch. 116, par. 209.) The information deleted from the accident report was witness information and statements. The reason given for the deletion was that this was “information which would constitute a clearly unwarranted invasion of personal privacy and for which no consent in writing by the individual involved has been received.” See Ill. Rev. Stat. 1987, ch. 116, par. 207(b).

On May 26, 1988, the plaintiff filed a “Notice of Appeal To Head of Public Body From Denial of Access To Public Records” with the city manager. On May 31, 1988, the city manager, Steven C. Carter, denied disclosure of the entire accident report, stating that the deleted material was exempt from disclosure under section 7(b) of the FOIA. Ill. Rev. Stat. 1987, ch. 116, par. 207(b).

On June 9, 1988, the plaintiff filed a complaint for injunctive and declaratory relief in the circuit court of Champaign County (Ill. Rev. Stat. 1987, ch. 116, par. 211). The complaint alleged that the refusal to disclose the deleted information: (1) was inconsistent with the provisions of section 11 — 416 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 416), and section 7(d)(iv) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(d)(iv)), which allow for the disclosure of such information; and (2) was contrary to public policy in that such refusal would foster unnecessary and unwarranted litigation. The complaint requested that the court enter an order enjoining the City from withholding the deleted information, requiring the City to produce the accident report in its entirety, and declaring that the plaintiff had a right of access to the report without any deletions whatsoever.

The plaintiff filed a motion for summary judgment on July 12, 1988, alleging that there was no genuine issue as to any material fact and that under the proper interpretation of section 7(bXv) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v)), plaintiff was entitled to injunctive and declaratory relief as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) The City filed an answer to plaintiff’s complaint on July 13, 1988. A hearing on plaintiff’s motion for summary judgment was held on July 29, 1988.

In a written order filed September 9, 1988, the court entered summary judgment in favor of the plaintiff and against the City enjoining the City from withholding the information requested by the plaintiff. Further, the court declared that the plaintiff had a right of access to the report without any deletions and ordered the City to produce the requested report without deletions. In so ruling, the court found that there was no genuine issue of material fact and that the plaintiff was entitled to judgment as a matter of law in that disclosure of the deleted portions of the accident report would not constitute a “clearly unwarranted invasion of personal privacy” so as to exempt them from disclosure under the FOIA. The court reasoned that a reading of section 11 — 416 of the Code and section 7(d)(v) of the FOIA indicated that the legislature did not intend such information to be exempt from disclosure under section 7(b)(v) of the FOIA. (Ill. Rev. Stat. 1987, ch. 116, pars. 207(b)(v), 207(d)(v); Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 416.) The court noted that the City had no procedures to, nor did it, contact or obtain consent or the disclosure of such information from any person whose identity it sought to protect under section 7(b)(v) of the FOIA. The court also noted that the City received a significant number of FOIA requests for information and that there was no uniformity among the various jurisdictions within the State as to how the requests were handled. The City now appeals.

The City contends on appeal that disclosure of the names, addresses, and statements of witnesses contained in the traffic accident report would constitute a clearly unwarranted invasion of the personal privacy of the witnesses and, therefore, such information is exempt from disclosure under section 7(b)(v) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v)). The plaintiff contends that a reading of the FOIA, together with a consideration of section 11 — 416 of the Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 416), demonstrates that the trial court’s decision was correct.

Under section 3 of the FOIA, “each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in section 7 of this Act.” (Ill. Rev. Stat. 1987, ch. 116, par. 203.) Section 7 specifies certain exemptions from inspection and copying, including the following:

“The following shall be exempt from inspection and copying:
* * *
(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(b).)

Section 7 then lists certain types of information exempted under subsection (b), which includes but is not limited to:

“(v) information revealing the identity of persons who file complaints with or provide information to administrative, investigative, law enforcement or penal agencies.” Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v).

A resolution of the issue presented requires an examination of the statutes involved together with an application of the rules of statutory construction. The primary rule of statutory interpretation and construction, to which all other canons and rules are subordinate, is to ascertain and effectuate the true intent and meaning of the legislature. (People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73, 285 N.E.2d 129, 130, cert. denied (1972), 409 U.S. 1059, 34 L. Ed. 2d 511, 93 S. Ct. 562.) In interpreting a statute a court must give the legislative language its plain and ordinary meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 381 N.E.2d 222.) If the language of the statute is plain, clear, and unambiguous and, if the legislative intent can be ascertained therefrom, it must prevail and will be given effect by the courts without resorting to other aids for construction. In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167; Mahin, 72 Ill. 2d 189, 381 N.E.2d 222.

The information withheld in this case included the names, addresses, and statements of witnesses contained on a traffic accident report. Based upon the language of section 7(b)(v) (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(v)) and an application of the foregoing principles, we believe that the legislature intended such information to be included in the section 7(b)(v) exemption. We are unpersuaded by the plaintiff’s contention that a reading of section 11 — 416 of the Code mandates a contrary result. (Ill. Rev. Stat. 1987, ch. 951/2, par. 11— 416.) The language of section 11 — 416 is permissive in nature and contains no provision requiring complete disclosure. We are similarly unpersuaded by the plaintiff’s contention that the Third District Appellate Court’s opinion in City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, is controlling here. We recognize the City of Monmouth court held that the various subsections of section 7(b) of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)) are not per se exemptions, but rather a claimant must show how a claim for exemption is a clearly unwarranted invasion of personal privacy. However, we decline to follow the holding of City of Monmouth. We therefore conclude that the trial court erred in allowing plaintiff’s motion for summary judgment.

Accordingly, the judgment of the circuit court of Champaign County is reversed.

Reversed.

LUND and GREEN, JJ., concur.