author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT FRED SMITH, a/k/a Fred Smith, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0234
    Opinion filed March 4, 1993.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Albert Smith, pleaded guilty to one count of aggravated criminal sexual abuse in 1988. (111. Rev. Stat. 1987, ch. 38, par. 12 — 16.) Smith was sentenced to four years’ probation, a condition of the probation being that he serve a term of periodic imprisonment. Smith’s probation was revoked in 1992, due to his failure to comply with its terms. (111. Rev. Stat. 1991, ch. 38, par. 1005 — 6—4.) Smith was sentenced to five years’ imprisonment on the underlying offense of aggravated criminal sexual abuse, with credit for 119 days served. Defendant appeals, alleging there are ambiguities in the record regarding the amount of credit to which he is entitled, and this case ought to be remanded to the circuit court for a determination of the amount of credit due. We disagree and affirm.

After his plea of guilty, defendant was sentenced to four years of intensive probation, ordered to obtain counseling, and ordered to serve a term of periodic imprisonment for 24 consecutive weekends, with credit for 31 days served. The periodic imprisonment was to be served beginning on September 9, 1988, and extending through the weekend of December 2,1988.

In 1991, a petition to revoke probation was filed due to defendant’s failure to report to the court services department. Later, at the probation revocation hearing, the State presented the testimony of both probation officers to whom defendant had been assigned.. The probation officers testified that defendant had failed to report to them on numerous occasions, had moved from one county to another without obtaining permission or even notifying the probation department, and had failed to obtain court-mandated counseling. The petition was found proved, and defendant’s probation was revoked.

On March 11, 1992, defendant was sentenced to five years’ imprisonment on the underlying offense. The transcript reflects the circuit court orally ordered the defendant be given credit for the 31 days served. However, some additional discussion must have occurred, which was not transcribed, because the sentencing order provided defendant was to be given credit for 119 days served. The 119 days were apparently calculated as the total of the 31 days spent in custody prior to the 1988 sentencing, 87 days during the term of periodic imprisonment, and one day spent in custody prior to the probation revocation hearing. Defendant’s sole contention on appeal is the matter must be remanded for a hearing regarding sentence credit because the ambiguities in the record make it impossible to determine the term of periodic imprisonment he actually served. We disagree.

At the 1988 sentencing hearing the trial court ordered the defendant to serve “a period of incarceration at periodic imprisonment for six months,” specifying the defendant was to report for imprisonment on Fridays, and be released on Sundays, commencing on September 9, 1992. In the written order, the circuit court required the defendant to serve “24 consecutive weekends, with credit for 31 days served . . . imprisonment to commence on Friday, September 9, 1988 and to continue through each and every weekend thereafter, through and including the weekend of December 2, 1988.” The defendant argues the statements are conflicting and result in an ambiguity in the record regarding the amount of time actually served by the defendant. The defendant argues he may have served six 'months’ periodic imprisonment, entitling him to 180 days’ credit, or 24 weekends’ periodic imprisonment, entitling him to 164 days’ credit. The defendant additionally argues the specified dates of the periodic imprisonment are inconsistent with the number of weekends he was ordered to serve.

The issue of ambiguities in sentencing is generally brought before the court when the defendant alleges there is an inconsistency between the oral pronouncement of the circuit court and the written order of commitment, and the defendant files a motion to request the more favorable of the two be enforced. The analysis employed by such cases is equally applicable to the present case.

It is the oral pronouncement of the judge which is the judgment of the court. The written order of commitment is merely evidence of the judgment of the court. (People v. Williams (1983), 97 Ill. 2d 252, 310, 454 N.E.2d 220, 248.) When the oral pronouncement of the court and the written order are in conflict, the oral pronouncement of the court controls. (Spriggs v. United States (9th Cir. 1955), 225 F.2d 865, 868; Watkins v. Merry (10th Cir. 1939), 106 F.2d 360, 361.) However, often apparent inconsistencies may be resolved by examining the record as a whole to determine whether the written order expresses the intent of the judge’s oral pronouncement, or conforms to the oral pronouncement’s sense and meaning but is merely set forth with greater specificity. Where looking at the record as a whole, if the written order is not inconsistent with the intent, sense and meaning of the circuit court’s oral pronouncement, the written order will be enforced.

When the written order of judgment is arguably inconsistent with an oral pronouncement of the court in rendering a judgment, but is consistent with the court’s intent in rendering the judgment, the written order will be enforced. In People v. Hairston (1990), 207 Ill. App. 3d 674, 566 N.E.2d 343, the defendant alleged the circuit court, in its oral pronouncement, stated the defendant was to be sentenced to eight years’ imprisonment, yet the commitment order provided for 10 years’ imprisonment. Accordingly, the defendant argued, on appeal, that the commitment order ought be amended to reflect an eight-year term of incarceration. The appellate court disagreed, noting that while the circuit court had made reference to an eight-year sentence in its oral pronouncement, it had begun by stating the defendant was to receive a 10-year sentence, and made consistent references to a 10-year sentence throughout the oral pronouncement. Thus, the appellate court affirmed the defendant’s 10-year sentence, holding, “[i]n the absence of a clear conflict between the commitment order and the trial court’s judgment, the commitment order need not be amended.” (Emphasis added.) Hairston, 207 Ill. App. 3d at 681, 566 N.E.2d at 347.

The Federal judiciary has further expounded upon this issue in United States v. Gibas (7th Cir. 1964), 328 F.2d 833. Gibas alleged the circuit court’s oral pronouncement provided for a three-year term of imprisonment, yet the written order provided for a six-year term of imprisonment. Gibas filed a motion with the district court requesting the written order be amended to conform with the oral pronouncement of the court. (Gibas, 328 F.2d at 834.) Gibas’ motion was denied and he appealed.

Gibas had been convicted of 35 counts of a multiple-count indictment. In orally rendering judgment, the circuit court sentenced defendant to “ ‘one year on each of the counts of the indictment upon which he was found guilty, the said sentence to be served as follows.’ ” (Gibas, 328 F.2d at 834.) The circuit court then detailed which sentences were to be served concurrently and consecutively. Apparently, the statements regarding concurrent and consecutive sentences would have the effect of providing for a total sentence of three years; however, the circuit court concluded by stating, “ ‘which makes a total of six years.’ ” (Gibas, 328 F.2d at 834.) The written order provided for a sentence of six years. The Seventh Circuit Court of Appeals found the conclusory statement made by the district court was evidence of an intent to sentence the defendant to six years; thus, although the written order of judgment apparently did not conform to the district court’s oral judgment regarding the terms to be served concurrently and consecutively, it reflected the intent of the district court. Hence, the Seventh Circuit affirmed the judgment of the district court. Gibas, 328 F.2d at 834-35.

Likewise, when the written order of judgment is more specific than the oral pronouncement of the court, the written order will be enforced if it is consistent with the sense and meaning of the court’s oral pronouncement. In People v. Tackett (1985), 130 Ill. App. 3d 347, 474 N.E.2d 451, defendant’s probation was revoked, and the court ordered defendant to serve an indeterminate sentence of not less than 62/s years and not more than 20 years, with credit for time spent in custody. (Tackett, 130 Ill. App. 3d at 347, 474 N.E.2d at 452.) With respect to sentence credit, the written order provided defendant was to be given credit for the days defendant was incarcerated, but not for time served on probation but not in custody. (Tackett, 130 Ill. App. 3d at 348, 474 N.E.2d at 452.) The defendant argued the oral pronouncement of the court and the written order were inconsistent and the written order should be amended to conform to the oral pronouncement. The appellate court noted a court may not increase a sentence once it has been imposed by denying credit for time served on probation. (Tackett, 130 Ill. App. 3d at 349, 474 N.E.2d at 452-53.) However, the appellate court affirmed the denial of credit for time served on probation, stating:

“[I]t appears from the entire record that the trial judge merely did not fully articulate defendant’s sentence when he pronounced it in open court. The subsequent written order, therefore, would not constitute an increase of its oral sentencing pronouncement but rather its full articulation.” Tackett, 130 Ill. App. 3d at 351, 474 N.E.2d at 454.

The Federal judiciary has also expounded more fully on this issue in LaClair v. United States (7th Cir. 1962), 303 F.2d 602, where the defendant alleged there was an inconsistency between the oral pronouncement of judgment and the written order of commitment, and the oral judgment was too vague to support a consecutive sentence. LaClair was convicted of a total of 10 counts of bank robbery in six cases. On July 7, 1954, the district court orally pronounced judgment, sentencing the defendant to five terms of 20 years, four terms of 25 years, to be served concurrently, and one term of five years to be served consecutively, plus a total fine of $50,000. The court concluded the rendition of the sentence by stating the effect would be a 30-year sentence and a fine of $50,000. (LaClair, 303 F.2d at 603.) The defendant attempted to escape from jail on July 15, 1954. At the sentencing hearing on the attempt (escape) conviction, the United States’ Attorney advised the court that defendant had previously been sentenced to 30 years’ imprisonment and ordered to pay a fine of $50,000; also, the United States’ Attorney apparently requested the sentence on the attempted escape conviction be imposed consecutively to defendant’s previous sentence. (LaClair, 303 F.2d at 604.) The court orally sentenced defendant to five years’ imprisonment to be served consecutively with the sentence received on July 7. The order provided for the same, but enumerated the case numbers for which sentences had been received on July 7. LaClair, 303 F.2d at 604.

The defendant sought to “correct” the written order to provide for a sentence of five years to begin on the date of imposition. (LaClair, 303 F.2d at 604.) The Seventh Circuit Court of Appeals found that although the district court judge referred to the sentence imposed on July 7 in the singular, reflecting his own statement of July 7, when he summarized the net effect of the sentences, the district court’s oral statement set out the court’s intent with fair certainty. The court further determined the written order was different from the oral pronouncement of the court only in that it set out the numbers of the six cases included in the sentence imposed on July 7. The court found that the sense and meaning of the written order was the same as the oral judgment of the court, despite the expansion in the wording. LaClair, 303 F.2d at 604.

In the present case there is no ambiguity regarding the defendant’s sentence, because the oral pronouncement of the court and the written order are not inconsistent. The defendant alleges there is an ambiguity regarding the amount of time he served, because the trial court’s oral pronouncement of sentence is inconsistent with the written order of commitment. We disagree and find the written order to be consistent with the intent of the circuit court.

The circuit court stated the defendant was to serve a term of periodic imprisonment for six months, reporting on Fridays, and being released on Sundays. The court intended for Smith to serve six months of weekends. There are, on average, four weekends in a month. Thus, utilizing the average, six months would contain 24 weekends. The written order ordered the defendant to serve 24 consecutive weekends. This reflects the intent of the circuit court’s oral pronouncement; thus, under Hairston and Gibas, there is no inconsistency between the oral pronouncement of the court and the written order, because the written order is consistent with the intent of the circuit court. Moreover, as in Tackett and LaClair, the written order is not inconsistent with the oral judgment of the court, but merely sets forth the terms of the judgment with greater specificity. We reject the defendant’s contention there is an ambiguity regarding the sentence.

The defendant additionally argues there is an ambiguity regarding the amount of time he was ordered to serve because the order of commitment provided he was to serve 24 consecutive weekends, yet it also provided the weekends were to begin on September 9, 1988, and extend through the weekend of December 2, which is a total of 13 weekends. These provisions are only inconsistent if one ignores the portion of the order providing defendant is entitled to 31 days’ credit against his sentence for time spent in custody prior to sentencing.

In determining how to apply the 31 days’ credit against the term of periodic imprisonment, the circuit court applied the credit for time spent in custody against the days which were actually to be spent in confinement under the order of periodic imprisonment. Each weekend, defendant was to spend three days in confinement. Thus, the circuit court divided 31 by 3, resulting in a total of 10.3 weekends. Rather than requiring defendant to serve a partial weekend, the amount of credit was rounded up to 11 weekends. Accordingly, the defendant was required to serve 13 (24 minus 11) weekends. There is no inconsistency between the portion of the order providing for 24 consecutive weekends with credit for 31 days served, and the portion of the order providing the specific dates of confinement.

Defendant next argues that he is entitled to 164 days’ credit because the written order provides for a sentence of 24 consecutive weekends. The term of a sentence of periodic imprisonment is to be calculated upon the basis of the duration of its term rather than upon the basis of the actual days spent in confinement. (111. Rev. Stat. 1991, ch. 38, par. 1005 — 7—1(d).) Thus, although a defendant sentenced to 24 consecutive weekends (Friday through Sunday) actually spends 72 days in confinement (24 x 3), the term of the imprisonment for which he is given credit is 164 days (7 days in a week multiplied by 24 weekends minus 4 days, as defendant would be incarcerated for only 3 days in the first week). (See People v. Floyd (1986), 151 Ill. App. 3d 701, 703, 502 N.E.2d 1074, 1076.) If the order had only provided for the defendant to serve 24 weekends, reporting Fridays, and being released on Sundays, and the defendant had served the 24 weekends, his contention that he would be entitled to 164 days’ credit would be correct.

However, the circuit court properly ordered that defendant be given credit for the 31 days previously served. This brings to our attention the interesting issue of how credit for time served is to be assessed against a term of periodic imprisonment. There are, theoretically, two methods under which the credit for time served could be applied to a term of periodic imprisonment. The credit for the time served could be applied against the term of periodic imprisonment, or, as in the present case, the credit could be applied against the basis of the days which are actually to be spent in confinement pursuant to the sentence of periodic imprisonment. Had the first method been applied in the present case, the 31 days served would have been credited against the 164-day term of periodic imprisonment. This could have resulted in the serving of 19 weekends by defendant. However, in the present case, the circuit court applied the credit for time spent in custody against the days which were actually to be spent in confinement under the order of periodic imprisonment, resulting in 13 weekends of imprisonment. The written order provided the term of periodic imprisonment be served beginning on September 9, 1988, and continuing through the weekend of December 2, 1988. The weekend of December 2 ended on December 4. The period of September 9 through December 4 contains 13 weekends, and consists of a total term of 87 days (7 days in a week multiplied by 13 weekends, minus 4 days, as defendant would be incarcerated for only three days in the first week).

We need not rule on which method of applying credit against a sentence of periodic imprisonment is the proper method, since we believe the defendant, with respect to the present sentence, should be given credit for time served according to the method actually employed by the circuit court rather than under a method which the circuit court perhaps should have employed.

Consequently, the defendant should be given credit for the 31 days spent in custody prior to the 1988 sentencing hearing, 87 days for the term of periodic imprisonment as calculated by the circuit court, and one day for the day spent in custody prior to the hearing on the probation revocation, resulting in a total of 119 days’ credit. This is the amount of credit which the circuit court has provided the defendant is to be given against his sentence of five years’ imprisonment. There are only ambiguities in the record regarding the amount of credit to which defendant is entitled, and there is no need to remand to the circuit court for a hearing on the amount of credit.

The State urges us to find defendant’s argument waived, since he failed to raise the issue of his sentence credit at the sentencing hearing or in a post-sentencing motion. While acknowledging this court’s decision in People v. Donnelly (1992), 226 Ill. App. 3d 771, 779, 589 N.E.2d 975, 980, finding that errors in computing sentence credit are not subject to waiver, the State notes that the second and fifth districts have held to the contrary (People v. Lewis (1992), 235 Ill. App. 3d 1003, 1006, 602 N.E.2d 492, 493; People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114). We rejected Macke in People v. Turner (1992), 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10; however, this is the first time the recent Lewis decision has been brought to our attention.

In Lewis, the defendant appealed her sentence, alleging the court miscalculated the probationary term to which she had been sentenced, miscalculated the street-value fine which had been assessed, and failed to give credit for time served. (Lewis, 235 Ill. App. 3d at 1004, 602 N.E.2d at 492.) The defendant did not file a motion to reduce her sentence. The Second District Appellate Court made no reference to the fourth district cases on this issue; rather, the court adopted the fifth district’s decision in Macke. Accordingly, the second district found Lewis failed to preserve any error which might have occurred in sentencing and dismissed her appeal.

Recently, we have had the opportunity to consider whether a defendant’s failure to raise issues regarding the amount of credit to which he is entitled at the sentencing hearing, or in a post-sentencing motion, waives appellate consideration of the issue. Although we have held it does not, we have expressed dismay that the State’s Attorney and defense counsel failed to recognize the importance of attempting to resolve these issues in the trial court.

In People v. Curtis (1992), 233 Ill. App. 3d 416, 419-20, 599 N.E.2d 101, 103, we stated:

“A sentencing hearing is a significant part of the trial process. The presentence report is a critical document. The information in a presentence report may be relied upon by the court, and the parties bear the responsibility of calling any inaccuracy to the court’s attention. (See People v. Powell (1990), 199 Ill. App. 3d 291, 294-95, 556 N.E.2d 896, 898.) The vigorous advocacy of counsel in negotiating a plea or defending at trial should not wane at sentencing. Both the State’s Attorney and defense counsel have an obligation to assist the court, and both are obligated to make sure the defendant receives neither more nor less than the time credit to which he is entitled. We see little justification or explanation for errors in computing such credit.” (Emphasis in original.)

Similarly, in People v. Steskal (1992), 236 Ill. App. 3d 821, 823-24, 602 N.E.2d 977, 979, we stated:

“Simply because we have not found waiver does not mean counsel and judges are relieved of their responsibility to ensure defendants receive appropriate sentences.
The number of cases which raise sentencing issues for the first time on appeal indicates some prosecutors, defense counsel, and judges neglect their responsibilities at the sentencing stage of criminal proceedings. ***
*** To facilitate imposing a proper sentence, the trial judge should direct the probation office to include within its presen-tence report a list of the days defendant was incarcerated on the charge which he is being sentenced on and the total of days for which defendant is entitled to credit. [Citation.] The trial judge should seek confirmation from defense counsel and the People as to the accuracy of this computation. [Citation.]
Accurate computation of sentence credit, as well as post-sentencing motions, would lessen the instances in which sentencing issues are raised on appeal for the first time.” (Emphasis in original.)

Since we find the circuit court had a proper basis for calculating the sentence credit to which the defendant was due, we need not determine whether we ought reconsider our prior rulings on the waiver issue. However, we note, as we did in the Curtis and Steskal cases, that counsel and judges, in fulfilling their duties, should make an effort to determine the amount of credit in the trial court, rather than utilizing the appellate court as the first forum of determination.

The circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCUSKEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHANIE DAVIS, Defendant-Appellant.
    Third District
    No. 3 — 92—0576
    Opinion filed March 10, 1993.

      Thomas A. Karalis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, Stephanie Davis, was convicted of unlawful possession of a controlled substance with the intent to deliver (720 ILCS 570/401(c)(2) (West 1992)). She was sentenced to four years’ imprisonment. Davis appeals and we affirm.

The record reveals that on November 19, 1991, police searched Davis’ apartment pursuant to a search warrant. In the apartment, police found substances resembling cocaine. After being informed of her rights, Davis admitted to police that she had been selling cocaine for two to three months.

Forensic scientist Debra Minton weighed and tested the suspected cocaine in 25 of the 47 small plastic bags found in Davis’ apartment. Following testing, Minton concluded that all 25 of the bags she tested contained cocaine. Minton also separately weighed the contents of each of the 25 bags. She concluded that the contents had a combined net weight of 5.14 grams. She further testified that the total weight would have been the same whether she weighed the contents of the 25 bags separately or all at once.

On appeal, Davis does not dispute that she was proved guilty of possession with the intent to deliver at least 1 but less than 15 grams of cocaine. Instead, Davis argues that the trial court erred in finding that she possessed an amount of cocaine over 5.0 grams. In the instant appeal, 5.0 grams is the cut-off point for the sentencing alternative of probation. See 730 ILCS 5/5-5-3(c)(2)(D) (West 1992).

In support of this argument, Davis contends that the weighing process was tainted because the contents of the 25 bags were weighed separately rather than all at once. Davis claims that any errors in the weighing process could therefore have been 25 times greater than if the contents of all the bags had been weighed at the same time.

On review, the relevant question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found that the elements of the crime had been proved beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In the instant case, the record is devoid of any evidence suggesting that the weight of the whole would have been less than the sum of its parts. In light of Minton’s testimony that the total weight would have been the same whether she weighed the contents of the 25 bags separately or all at once, we find that a rational trier of fact could have concluded that the likelihood of overweighing by .14 grams was too remote to create a reasonable doubt. See People v. Pickens (1992), 226 Ill. App. 3d 1001, 590 N.E.2d 535.

For the reasons indicated, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY and LYTTON, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE ex rel. GARY L. SPENCER, State’s Attorney of Whiteside County, Petitioner-Appellant, v. ONE 1978 PONTIAC AUTOMOBILE, VIN No. 2L69Y8P243561, et al., Respondents-Appellees.
    Third District
    Nos. 3 — 92—0359 through 3 — 92—0361 cons.
    Opinion filed March 8, 1993.

      Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Nelson, Kilgus, Richey & Hauptman, of Morrison (Walter C. Kilgus, of counsel), for appellees.
   JUSTICE SLATER

delivered the opinion of the court:

On March 27, 1992, individual complaints for forfeiture were filed against one 1978 Pontiac, one 1973 Ford and one 1976 Oldsmobile pursuant to section 36 — 1 of the Criminal Code of 1961 (the Code) (HI. Rev. Stat. 1991, ch. 38, par. 36 — 1). The complaints alleged that each vehicle was used by its owner in the commission of the offense of gambling (111. Rev. Stat. 1991, ch. 38, par. 28 — 1). Each of the vehicle’s owners stipulated that he drove his vehicle to a location in Whiteside County for the purpose of gambling. Each owner further stipulated that he thereafter played craps in violation of section 28 — 1 of the Code (HI. Rev. Stat. 1991, ch. 38, par. 28 — 1). In addition, respondent James Lake stipulated that while travelling to the crap game he was in possession of money which was to be used for gambling. Following a hearing, the trial court denied the complaints for forfeiture, finding that the vehicles were not used in the commission of the offense of gambling.

Forfeiture is a civil proceeding in rem. (People v. Dugan (1985), 109 Ill. 2d 8, 485 N.E.2d 315.) A trial court’s findings in such a proceeding will not be disturbed unless they are against the manifest weight of the evidence. (Dugan, 109 Ill. 2d 8, 485 N.E.2d 315; People ex rel. Daley v. One 1978 Buick Automobile (1990), 195 Ill. App. 3d 711, 553 N.E.2d 49.) Section 36 — 1 of the Code provides:

“Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit *** an offense prohibited by (a) Section *** 28 — 1 of this Code *** may be seized and delivered forthwith to the sheriff of the county of seizure.” HI. Rev. Stat. 1991, ch. 38, par. 36 — 1.

The issue presented by these consolidated appeals is simply this: Did the respondents’ actions in driving to the location of the crap game with the intent to gamble constitute the use of their vehicles in the commission of the offense of gambling? We think not. In People v. Dugan (1985), 109 Ill. 2d 8, 485 N.E.2d 315, the defendant was arrested during a raid on a gambling club. The defendant’s car, which had been parked in the club’s parking lot, was ordered forfeited. On appeal the defendant argued that the car had not been used in the commission of an offense. The supreme .court noted that the car contained membership cards for the club, playing cards, poker chips, gambling table covers and $30,000, including $700 that had been gambled by undercover agents at the club. In upholding the forfeiture, the court stated that “[t]he use of the car as a mobile office or safe was sufficiently connected to the gambling activity, and therefore it may be considered to have been used in the commission of the offense.” (Emphasis added.) Dugan, 109 Ill. 2d at 18, 485 N.E.2d at 320.

Unlike Dugan, the vehicles in this case were not “connected to the gambling activity” other than as a means of transportation to the location of the crap game. We believe that such a nexus is too attenuated to support a finding that the vehicles were used in the commission of the offense. See United States v. Lane Motor Co. (1953), 344 U.S. 630, 97 L. Ed. 622, 73 S. Ct. 459 (vehicle used merely to travel to site of illegal distillery was not “used in violating” revenue laws and therefore not subject to forfeiture).

The State contends, however, that even if the vehicles were not used in the commission of the offense of gambling, they were used in an attempt to commit gambling and are therefore subject to forfeiture under section 36 — 1. We note initially that the complaints for forfeiture did not allege that the vehicles were used in the attempt to commit gambling and there is no indication in the record of a motion to amend the complaint. Furthermore, an attempt requires a substantial step toward the commission of the offense, coupled with the requisite intent. (HI. Rev. Stat. 1991, ch. 38, par. 8 — 4.) We find that the act of driving to the location of the qrap game was not a sufficiently substantial step to constitute the offense of attempted gambling.

For the reasons stated above, the judgments of the circuit court are affirmed.

Affirmed.

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


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES S. CLINARD, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0292
    Opinion filed March 11, 1993.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a stipulated bench trial in the circuit court of McLean County, defendant Charles Clinard was found guilty of aggravated battery (111. Rev. Stat. 1989, ch. 38, par. 12 — 4). He was sentenced to two years’ imprisonment, to be served consecutively with another two-year sentence previously imposed as a result of his probation being revoked. Defendant appeals, claiming (1) the trial court erred in denying his motion to dismiss under the speedy-trial statute (HI. Rev. Stat. 1991, ch. 38, par. 103 — 5); and (2) he is entitled to an additional 16 days’ sentence credit for time previously served in custody.

On May 25, 1991, defendant was arrested for the charge underlying this case and posted bond on June 10, 1991. On June 25, 1991, he failed to appear at his scheduled hearing, and a warrant was issued for his arrest. A petition was also filed to revoke probation on a conviction for an unrelated offense. On August 18, 1991, defendant was arrested in Florida on charges of burglary and theft. He was sentenced to time served, 40 days in the county jail, and two years’ unsupervised probation. He was returned to Illinois on October 16, 1991. He admitted the allegations in the petition to revoke probation and, on November 21, 1991, was sentenced to two years in the Illinois Department of Corrections (DOC). A trial date on the charge in the case at hand was set for January 16, 1992, but was continued at the request of the State. On February 18, 1992, a trial date was set for March 3, 1992. On that date defendant moved to dismiss, claiming he had been in continuous custody since October 16, 1991, a total of 139 days.

Section 103 — 5(e) of the Code of Criminal Procedure of 1963 (Code) (111. Rev. Stat. 1991, ch. 38, par. 103 — 5(e)) provides that if a person is simultaneously in custody upon more than one charge pending against him in the same county, such person shall be tried upon all remaining charges within 160 days from the date on which judgment is rendered on the first charge prosecuted. In this case, defendant was prosecuted and had judgment rendered on his probation revocation as of November 21, 1991, and was tried for the remaining charge on March 3, 1992. Defendant contends, however, that under the ruling in People v. Hollowell (1979), 78 Ill. App. 3d 515, 397 N.E.2d 245, revocation of probation is not a “charge” for purposes of section 103 — 5(e) of the Code. Accordingly, defendant argues that the 120-day limit of section 103 — 5(a) of the Code (111. Rev. Stat. 1991, ch. 38, par. 103 — 5(a)) should be applied and the present action dismissed. We disagree.

Our court faced a similar issue in People v. Jackson (1987), 162 Ill. App. 3d 476, 515 N.E.2d 390, where defendant was charged on March 10, 1986, with aggravated assault and unlawful use of a weapon. An arrest warrant was issued but not served upon defendant. At the time of the offense defendant was on parole, and his parole officer was notified. On March 23, 1986, defendant turned himself in, his parole was revoked, and he remained in custody in the DOC to serve out his parole term. On July 25, 1986, defendant was served with the arrest warrant previously issued March 10, 1986. He was tried and convicted on these charges on November 5, 1986, 240 days after the informations were filed.

The defendant in Jackson argued that the State was required to try him within 120 days from the filing of the information. Our court disagreed, holding that the controlling speedy-trial statute was the 160-day limit contained in section 103 — 5(b) of the Code (see 111. Rev. Stat. 1985, ch. 38, par. 103 — 5(b)), as incorporated in the intrastate detainers provision, section 3 — 8—10 of the Unified Code of Corrections (Unified Code) (see 111. Rev. Stat. 1985, ch. 38, par. 1003 — 8— 10). Under the terms of section 3 — 8—10 of the Unified Code (111. Rev. Stat. 1991, ch. 38, par. 1003 — 8—10), the 160-day limit provided in section 103 — 5(b) of the Code is applicable to a person committed to any institution or facility or program of the DOC (except for persons sentenced to death) who has an untried complaint or indictment pending against him. Furthermore, section 103 — 5(b) of the--Code (111. Rev. Stat. 1991, ch. 38, par. 103 — 5(b)) requires that the 160-day limit runs from the date defendant demands trial. The only indication in the record that defendant demanded trial occurred on February 18, 1992, when defense counsel stated that defendant wished to proceed to trial. His trial began two weeks later.

We find no discernible reason for distinguishing between the parole violation in Jackson and the revocation of probation in the case at hand. In both cases the defendants were properly committed to the DOC and therefore governed by section 3 — 8—10 of the Unified Code. (See People v. Wiseman (1990), 195 Ill. App. 3d 1062, 553 N.E.2d 46.) The motion to dismiss was properly denied.

Finally, defendant claims the trial court improperly denied sentence credit for time spent in custody between the date of his arrest (May 25, 1991) until the date he posted bond (June 10, 1991). The State concedes that defendant is properly owed a credit of 17 days for this time spent in custody, but argues that the order of judgment and sentence should be corrected to show the number of days of credit to which defendant is entitled. The order of judgment and sentence states that: “[defendant has been in continuous custody on this charge since he was apprehended in the State of Florida.” The State contends that defendant was not returned to custody until October 16, 1991, and is therefore not entitled to credit for any time spent in custody in Florida.

Defendant was arrested in Florida on August 18, 1991, and, on September 26, 1991, the Florida court sentenced him to 24 months’ unsupervised probation and 40 days of time served. This 40 days’ incarceration apparently involved the time between his arrest and his sentencing date. Defendant remained in custody in Florida from September 26, 1991, until he was returned to custody in Illinois on October 16, 1991. The State contends that defendant was not in Illinois custody until he was arrested on October 16, 1991, and surprisingly concludes that defendant was “no doubt not in custody at all” from September 26 to October 16,1991.

A defendant is not entitled to credit for time spent in custody while incarcerated in another State as the result of a crime committed there. (People v. Gardner (1988), 172 Ill. App. 3d 763, 768, 527 N.E.2d 155, 158.) Once the Florida court sentenced defendant to time already served, the only explanation for his continued incarceration is that he was being held on the arrest warrants issued from McLean County, Illinois. Section 5 — 8—7(b) of the Unified Code provides that an offender shall be given sentence credit for time spent in custody as a result of the offense for which the sentence was imposed. (111. Rev. Stat. 1991, ch. 38, par. 1005 — 8—7(b).) Accordingly, defendant’s sentence credit should be calculated to begin on September 26,1991.

An offender is properly denied sentence credit for those days spent serving a prison term for a prior unrelated offense. (People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777.) A petition to revoke defendant’s probation on an unrelated offense was granted, and he began serving a two-year sentence on the separate offense November 21, 1991. Thus, defendant is entitled to sentence credit in this case from September 26 to only November 21, 1991, plus the 17 days spent in custody from May 25 to June 10,1991.

Affirmed in part; reversed in part and cause remanded with directions.

McCULLOUGH and KNECHT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN A. HUISINGA, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0676
    Opinion filed March 11, 1993.
    Kathryn Saltmarsh, of Metnick, Barewin, Wise & Cherry, of Springfield (D. Peter Wise, of counsel), and James L. Ayers, of Ayers & Shonkwiler, of Montieello, for appellant.
    Roger Simpson, State’s Attorney, of Montieello (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Stephen A. Huisinga, was arrested for driving under the influence of alcohol (DUI), pursuant to section 11 — 501(a)(2) of the Illinois Vehicle Code (Code) (111. Rev. Stat. 1991, ch. 951/2, par. 11— 501(aX2)). His driving privileges were summarily suspended because he refused to submit to the chemical tests required by section 11— 501.1 of the Code (111. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1). After a hearing on his petition to rescind the suspension of his driving privileges, the circuit court of Piatt County entered an order denying rescission. Defendant appeals, arguing the arresting officer did not explicitly request him to take the test, and consequently, there could be no clear refusal upon which the statutory summary suspension could be predicated. We affirm.

The underlying facts of the case are not in dispute. On April 25, 1992, Deputy J.D. Russell of the Piatt County sheriff’s department stopped defendant’s vehicle on Route 150 for speeding. Upon approaching defendant’s vehicle, Russell smelled an odor of alcohol emanating from inside the car. Russell observed defendant’s eyes were glassy, watery and bloodshot. After asking defendant how fast he had been going, defendant began to argue with the deputy about whether he had been speeding, and Russell noticed an odor of alcohol on defendant’s breath and that his speech seemed to be “thick-tongued” and slower than normal speech. Russell then requested defendant perform various field-sobriety tests, which he later explained defendant failed. After completing the field-sobriety tests, defendant was asked to submit to a portable breathalyzer test. Defendant refused to take the test, and Russell then placed defendant under arrest for DUI.

Defendant was placed in the squad car and was admonished concerning the implied consent warnings for the administration of the breath or blood-alcohol tests. Russell testified he told defendant he would be offered the breathalyzer test at the county jail, but then asserted he believed what he actually told defendant was the test being offered at the Piatt County jail was the breathalyzer test. Russell then asked defendant if he understood the warnings. Defendant refused to respond at first, but later stated he understood the warning and the consequences of refusing to take the tests. At that time, he stated he refused to take the test and asserted he could not be drunk because he was trying to keep to one beer an hour. After his initial refusal to take the test, defendant was transported to the county jail and at no other time was he asked to take the test nor was it offered to him.

After his arrest, defendant was served notice from the Secretary of State’s office he would receive a statutory summary suspension of his driver’s license for two years for refusing to take the required tests. (See 111. Rev. Stat. 1991, ch. 95V2, par. 11 — 501.1(f).) Defendant thereafter petitioned the court to rescind his statutory summary suspension. After hearing, the circuit court denied his petition, and this appeal followed.

Relying on People v. Brennan (1984), 122 Ill. App. 3d 602, 603, 461 N.E.2d 1067, 1068, defendant argues on appeal he was never explicitly asked to take a breathalyzer test and therefore there could be no refusal upon which to base the statutory summary suspension, since there was neither a proper request nor an opportunity to take the test. The trial court, therefore, erred in failing to rescind his statutory summary suspension.

Conversely, the State contends the trial court did not err in finding defendant had refused to take the test. The State reasons defendant had been placed under arrest and was informed of the consequences of his refusal to take the required tests. He then unequivocally refused to take the tests. While it concedes the deputy’s statement defendant would be offered the breathalyzer test at the jail was not in interrogative form, it contends defendant interpreted Russell’s statement as a demand to take the test and proceeded to make an unequivocal refusal to take the test. Since Russell’s statement conveyed to defendant a demand to take the test, defendant’s response was a clear refusal to take the test. Citing People v. Graziano (1986), 151 Ill. App. 3d 475, 502 N.E.2d 822, it maintains once defendant stated his refusal to take the test, the officer was not required to give him a second chance to take the test. Accordingly, the State contends the trial court properly denied defendant’s petition to rescind.

Section 11 — 501.1 of the Code sets forth the procedures which must be followed by law enforcement officials when requesting a driver submit to a chemical test and the penalties imposed upon a driver for refusing. (111. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1.) Section 11.501.1(c) provides “that a refusal to submit to [a breathalyzer test] will result in the statutory summary suspension of such person’s privilege to operate a motor vehicle.” (111. Rev. Stat. 1991, ch. 951/2, par. 11 — 501.1(c).) Section 2 — 118.1 of the Code sets forth the procedures through which a person whose license has been suspended, pursuant to section 11 — 501.1 of the Code, may have a hearing to determine whether the statutory summary suspension should be rescinded. (111. Rev. Stat. 1991, ch. 95x/2, par. 2 — 118.1.) Section 2— 118.1(b) of the Code requires such a person to “state the grounds upon which the person seeks to have the statutory summary suspension rescinded” when requesting such a hearing. (111. Rev. Stat. 1991, ch. 95x/2, par. 2 — 118.1(b).) According to this section, there are four areas of inquiries with respect to seeking rescission of a statutory summary suspension. One such area to which the scope of the rescission hearing is statutorily limited is whether the person, “after being advised by the arresting officer that the privilege to operate a motor vehicle would be suspended if the person refused to submit to and complete the test or tests, did refuse to submit.” (111. Rev. Stat. 1991, ch. 95V2, par. 2 — 118.1(bX3).) This was one of the reasons advanced by defendant as a ground for the rescission of his suspension.

In a statutory summary suspension hearing, the burden of proof is on the motorist to present a prima facie case for rescission (People v. Orth (1988), 124 Ill. 2d 326, 338, 530 N.E.2d 210, 215), and in order for the motorist to prevail, the trial court must find defendant had satisfied his or her burden of proof by a preponderance of the evidence (People v. Hawkins (1991), 221 Ill. App. 3d 460, 463, 582 N.E.2d 243, 246; People v. Gafford (1991), 218 Ill. App. 3d 492, 497, 578 N.E.2d 583, 586). Whether a defendant has met this burden of proof is a question of fact for the trial judge, and this determination cannot be overturned on review unless it is against the manifest weight of the evidence; that is, unless an opposite conclusion is clearly evident from the record. Hawkins, 221 Ill. App. 3d at 463, 582 N.E.2d at 246; People v. Bulman (1991), 212 Ill. App. 3d 795, 801, 571 N.E.2d 850, 855; People v. Misch (1991), 213 Ill. App. 3d 939, 941, 572 N.E.2d 466, 467.

As case law suggests, the fact of a refusal must be based upon an objective review of the officer’s question and defendant’s response, and there cannot be a refusal to take a test unless the driver is asked to take the test. (Brennan, 122 Ill. App. 3d at 603, 461 N.E.2d at 1068.) A defendant is considered to have refused to submit to a breathalyzer test “where, after a clear warning of the ramifications resulting from a refusal [citation], an officer explicitly asks a defendant whether he, or she, will take the test, and the defendant, by word, act or omission, clearly refuses to take the test.” Brennan, 122 Ill. App. 3d at 603, 461 N.E.2d at 1068; see also People v. Kern (1989), 182 Ill. App. 3d 414, 416, 538 N.E.2d 184, 186.

While defendant was not explicitly asked in interrogative form to take the breathalyzer test, we find the trial court’s conclusion defendant refused to., take the test was not against the manifest weight of the evidence. As the facts illustrate, defendant was offered and refused to take the portable breathalyzer test. He was then admonished regarding the failure to submit to the breath or blood-alcohol tests. Defendant was asked if he understood the warnings, and he stated he did. He then affirmatively interjected his refusal to take the test and offered an explanation for his refusal. Given this sequence of events, the trial court could appropriately find the defendant refused to take the breathalyzer test. We reject any suggestion he would have taken the test if thereafter asked to do so. Accordingly, the trial court’s ruling was not against the manifest weight of the evidence. To reverse the trial court’s ruling would eviscerate the purposes and meaning of the implied-consent statute — to assist in the determination of whether motor vehicle drivers suspected of intoxication are in fact under the influence of alcohol and to make the streets and highways of the State safer for its citizens by making prosecution of intoxicated drivers easier and by suspending drivers’ licenses upon refusal to submit to an intoxication test (People v. Carlyle (1985), 130 Ill. App. 3d 205, 210, 474 N.E.2d 9, 12) — and section 11 — 501.1 is instead to be liberally construed to accomplish its purpose of protecting the citizens of Illinois upon its highways (People v. Ellerbusch (1983), 118 Ill. App. 3d 500, 503, 454 N.E.2d 1166, 1168).

By affirming the trial court’s ruling in this instance, we do not condone the failure of police officers to ask a defendant in specific question form to submit to the chemical tests. Unless a defendant is completely uncooperative, an officer should explicitly ask a defendant to take the required test before he concludes a defendant has refused. The failure of officers to strictly adhere to the implied-consent statute also eviscerates the purpose of the statute and encourages litigation with the possibility a trial court or a reviewing court might disagree with an officer’s inference defendant refused. Cases based solely on the failure of officers to ask defendants to submit to a breathalyzer test are a complete waste of judicial resources. Courts should not have to be making such determinations when the whole situation could be avoided by an officer simply asking the defendant a single question. In this case, however, the facts are as such to allow us to easily conclude defendant clearly refused to take the test.

The judgment of the trial court is affirmed.

Affirmed.

STEIGMANN, P.J., and GREEN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN R. MILLER, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0587
    Opinion filed February 18, 1993.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, Linda Susan McClain, and Penelope Gainer, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Adam Bourgeois, of Chicago (Rex L. Reu, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On February 1, 1991, defendant John Miller was driving on Interstate 55 (hereinafter 1-55) in McLean County, Illinois. He was stopped by Illinois State trooper Jeff Gaither for an alleged loud muffler. After an alleged consensual search of defendant’s vehicle, 44 pounds of cannabis were confiscated and defendant was charged by indictment with cannabis trafficking and unlawful possession of cannabis with intent to deliver. HI. Rev. Stat. 1991, ch. 56a/2, pars. 705.1, 705(e).

After a hearing in February 1992, the trial judge denied defendant’s motion to suppress the cannabis seized and statements he made after the cannabis was discovered. In June 1992, the trial judge granted defendant’s motion to reconsider his ruling and then suppressed the evidence. The State appeals. We affirm the trial judge’s suppression order.

I. Facts

A. Initial Suppression Hearing

In May 1991 defendant filed a motion to suppress alleging (1) the stop for a minor traffic violation was pretextual; (2) the search was improperly made without a warrant or consent; (3) the scope of the search was unreasonable; and (4) the officers lacked probable cause to believe the vehicle contained contraband or that defendant had committed or was committing any criminal or motor vehicle offense.

At the suppression hearing, Illinois State Trooper Gaither, a member of the force for over five years, and Trooper Brenden Heffner, a member of the force for three years and a law enforcement officer for an additional four years, testified about why defendant’s vehicle was stopped on February 1.

According to their testimony, they were in their respective police vehicles at a crossover on 1-55 just north of the Funk’s Grove rest stop near milepost 150. They were sitting with their windows down, driver’s window to driver’s window, talking and monitoring traffic. Each heard a vehicle approaching with a very loud exhaust.

Gaither testified that when he entered the highway he also noticed defendant’s 1975 brown Ranchero vehicle had Texas plates, the plates had expired in January 1991, and a trailer ball hitch made it difficult to read defendant’s entire license plate. The State entered uncontested photographs identifying these characteristics of defendant’s vehicle.

Gaither indicated he stopped defendant’s vehicle because of three vehicle code violations: (1) the loud exhaust which initially drew attention; (2) the expired license plate; and (3) the trailer ball hitch, which somewhat obstructed the numbers on the license plate. Defendant’s vehicle was stopped at approximately 9:40 a.m.

While at defendant’s vehicle, Gaither asked him for his driver’s license and paperwork on the vehicle. According to Gaither, defendant mentioned he had flown from Fort Lauderdale to Texas. Defendant accompanied Gaither to his squad car. While they were seated in Gaither’s vehicle, Gaither called in and received verification of defendant’s identity provided on his license and vehicle registration. There were no warrants reported for defendant.

Gaither spoke with defendant for a few moments in the squad car before Heffner arrived. According to Heffner, he had remained in the crossover for a short while before travelling to Gaither’s location to see if he needed assistance. Heffner sat in the rear seat of Gaither’s vehicle, directly behind defendant. Gaither testified he thought Hef-fner was in the vehicle while defendant again spoke about travelling from Fort Lauderdale to Texas by air.

Heffner testified the circumstances of the stop were not initially such that drug activity was suspected. After Gaither spoke with defendant about where defendant came from and noted from defendant’s license he resided in Florida and from the vehicle registration that it came from Texas, however, Gaither called for a canine unit. He was told it would not be available for an hour. Heffner and defendant were in the vehicle when Gaither requested the unit.

According to Gaither, several things aroused his suspicions and caused him to call for the canine unit: (1) defendant appeared nervous; his voice raised and lowered in octaves and cracked, and his hands were shaking; (2) defendant gazed out the window when Gaither tried speaking with him; (3) Gaither found defendant’s story— that he had flown from Fort Lauderdale to Texas to buy a vehicle for $1,000 and to take it to Chicago for his father — unusual; (4) the vehicle was coming from a drug source area, as Loredo is a border town from which narcotics originate, and Chicago is an area to which narcotics travel; and (5) the vehicle had just been purchased within the last couple of days, consistent with other narcotic busts.

Gaither issued defendant a warning ticket for the loud muffler and defendant reportedly told him for the third or fourth time that he would get the muffler fixed when he arrived in Chicago. Gaither testified he gave defendant a break by not issuing a warning for the expired license plate because defendant had the paperwork to show he recently purchased the vehicle. After he returned defendant’s paperwork and driver’s license to him and explained the warning to him, Gaither told defendant he was free to go.

As defendant began exiting the vehicle, Gaither told him the State of Illinois has a large problem with people bringing up guns and drugs from the Texas valley area. Defendant then stated “ T don’t have any guns,’ ” or “ T don’t have a gun. If you’d like to look ***, feel free.’ ” Gaither responded, “ ‘You don’t mind if I search the vehicle?’ ” Defendant again reportedly told Gaither to search if he wished.

According to Gaither, this initial consent by defendant would have permitted the officers to search his entire vehicle, including the taillights. Because it was cold, Gaither offered defendant the option of observing the search of his vehicle or waiting in the squad car. Defendant chose the latter option.

According to Heffner, who remained in the vehicle with defendant, defendant told him he had flown from Fort Lauderdale, Florida, to Austin, Texas, and was en route with the vehicle to Berwyn, Illinois, where he was going to deliver the vehicle to his father.

While Heffner remained with defendant, Gaither searched the interior of his vehicle, looking under the seats and in the glove compartment. He smelled a strong odor of cannabis in the vehicle but found none. He investigated around the outside of the vehicle and laid the tailgate down. He observed some screws were missing along the inner area of the tailgate and a comer screw was quite loose. Gaither lifted it up and with a flashlight he looked inside where the Ford emblem went across the tailgate. The screw ends which protruded into the interior of the tailgate were covered with duct tape.

When Gaither approached the rear of defendant’s vehicle, defendant exited the squad car to observe the rest of the search. Defendant, Heffner, and State Trooper William Colbrook approached the rear of the vehicle. Gaither told Heffner he detected the smell of cannabis. After investigating the smell within defendant’s vehicle, Heffner too, stated he smelled cannabis. Defendant asked Gaither what he smelled. Gaither told him cannabis. Defendant responded the vehicle was from Texas and could have previously been used for transporting cannabis.

Gaither again radioed for the canine unit and was told it could arrive in approximately 15 minutes. He asked defendant if he would mind waiting and defendant said he would wait. While they spoke, Gaither noticed the left taillight cover had three new shiny screws and three rusty toolmarked screws holding it in. The right taillight cover had five shiny screws and one rusty screw holding it in. Gaither shared this observation with defendant and asked him if they could take the taillight cover off to look inside the compartment while they waited for the canine unit. Defendant said it would be all right but he had no screwdriver. Gaither retrieved a screwdriver from his squad car.

When he returned with the screwdriver, Gaither testified he again asked defendant if removing the taillight cover was acceptable to him. Defendant responded it would be fine. Gaither removed the left taillight cover and the quarter panel behind it was filled with plastic bags of cannabis. Defendant was placed under arrest. According to Gaither, there were 22 pounds of cannabis in the rear quarter panel on each side of the truck, totalling 44 pounds.

In response to questioning by defense counsel, Heffner stated rather than being at the crossover with Gaither on the day in question he may have been making a stop on southbound 1-55 at milepost 160 at 9:26 a.m. He did not recall exactly what he was doing at that time. He could have issued a ticket at 9:30 a.m. and testified if the information on the case stated he cleared from that traffic stop at 9:34 a.m. that was correct.

Defendant testified he lived in Fort Lauderdale, Florida. The day he was stopped there was nothing wrong with the exhaust on his vehicle. According to defendant, Gaither followed him for a short while before stopping him. Gaither told him he stopped him because of his loud muffler. Defendant started the vehicle again and Gaither then observed the muffler no longer sounded loud. Defendant testified he gave Gaither his driver’s license, the bill of sale and the registration to the vehicle. Defendant followed Gaither to his squad car.

Gaither began talking about the vehicle, how it was loud, checking his license, and inquiring about where defendant resided. Gaither made a radio transmission regarding defendant’s license. He inquired where defendant purchased the vehicle and where he was en route to. While they talked, Gaither was writing a warning ticket. According to defendant, he never received the warning ticket or his driver’s license back until they got to the police station.

Defendant heard a second radio transmission regarding a canine unit and the response that it would be an hour and 15 minutes for the unit to arrive. According to defendant, he told Gaither he had an appointment at noon which he had to make. He told the officers he was meeting his father in Berwyn. Gaither responded, “ ‘Well, we have trouble with drugs and guns from Florida.’ ” Defendant responded, “ ‘Well, I don’t have any of those.’ ”

Gaither asked defendant to consent to a search of his vehicle, to which defendant again responded he was in a hurry to make his appointment in Chicago. Defendant told Gaither he could not search his vehicle. At that time, Heffner was sitting behind him in the squad car. Gaither stated, “ ‘Well, it’s a policy that we check out cars from Florida and Texas.’ ” Gaither exited the car while Heffner spoke with defendant.

According to defendant, he stayed in the vehicle because he assumed Gaither was going to search his vehicle anyway. Gaither did not present an option to him that he observe the search or remain in the vehicle. Gaither looked in the front of the vehicle, went to the rear of the vehicle and pulled down the tailgate. He looked at it and then started ripping up the panel of the tailgate. Defendant got out of the squad car and said, “ T don’t want you to rip up part of my car.’ ” Gaither replied, “ ‘Well, it looks like it’s been hauling drugs,’ ” to which defendant replied, “ ‘I don’t know anything about that.’ ”

Gaither radioed a second time to request the canine unit. Defendant told Gaither again that he was in a hurry and had to leave to make his appointment in Chicago. When Gaither asked defendant again if he could wait, defendant responded he could not. Defendant testified Gaither returned to the squad car, said something to Heffner about the screws, retrieved a screwdriver, returned to defendant’s vehicle and began opening up the back of the vehicle.

Defendant was never asked to sign a consent form to permit the search of his vehicle. On cross-examination, defendant denied he told the officers a number of times he would get the muffler repaired when he arrived in Chicago.

Gaither testified in rebuttal. He did not remember defendant restarting the vehicle after it was stopped. Nor did he recall any conversation about the sound of the exhaust system after he stopped defendant’s vehicle. According to Gaither, at defendant’s vehicle he only told defendant he had been stopped for a loud muffler. While they sat in Gaither’s squad car, defendant told him he would repair the exhaust system when he arrived in Chicago, the vehicle had not been modified, and that the exhaust system was normally that loud.

Gaither also testified defendant never said anything about having an appointment in Chicago. Defendant only said he was going to Chicago to visit his father and to give him the Ranchero. Gaither also testified defendant did not indicate he did not want the vehicle searched. Gaither denied he told defendant the department had a policy to check Florida and Texas vehicles. He also testified the department had no such policy.

At no time while Gaither was investigating the tailgate did defendant tell him he did not want Gaither to do so. Nor did defendant tell him not to rip up the tailgate or look inside it. Defendant also did not at that point state he was in a hurry to leave. According to Gaither, Heffner arrived before or shortly after Gaither radioed to check defendant’s driver’s license record and vehicle registration.

Heffner testified in rebuttal that when he entered Gaither’s squad car, Gaither and defendant were discussing the loud muffler. Defendant stated although the muffler was loud, it was that way when he got the vehicle and he would get it repaired as soon as possible. Heff-ner never heard defendant mention having an appointment in Chicago. Heffner never heard defendant tell Gaither he was in a hurry because he had to meet someone at noon in Chicago. Heffner did not recall Gaither saying anything to defendant about his policy of checking vehicles from Florida and Texas. At no time while Heffner and defendant remained in Gaither’s squad car did defendant say he was in a hurry or wished to leave. Defendant had not indicated he did not want the search to continue and did not protest the search.

Colbrook, a State trooper for five years, testified that when he arrived he stood at the right rear bumper of Gaither’s squad car, which contained defendant, Gaither, and Heffner. After Gaither began searching defendant’s vehicle, he came back and told Colbrook he could smell cannabis in the passenger compartment of defendant’s vehicle. Colbrook went to the driver’s side door and smelled the odor of cannabis in the passenger compartment. Colbrook testified that when defendant was asked, he said he did not mind waiting for the canine unit.

Colbrook testified he and Gaither asked defendant if they could remove the taillights. Defendant responded he did not have a screwdriver. Gaither replied he had a screwdriver and he retrieved it from his squad car. He again asked defendant if he could remove the taillights. Defendant approved. Colbrook never heard defendant say anything about an appointment in Chicago, that he was in a hurry to leave, nor did defendant ask that the search cease and he be allowed to leave.

After considering the testimony, the trial judge denied defendant’s motion to suppress the evidence. The judge outlined the following findings of facts and law:

“2. During the mid-morning hours of February 1, 1991, the Defendant was operating a 1975 Ford Ranchero vehicle northbound on Interstate Route 55 in McLean County when he was observed by the arresting officer and another officer, who were in their respective squad cars, as he passed them.
3. Initial attention to the vehicle was drawn because of a ‘loud’ muffler and the arresting officer proceeded to make a traffic stop during which he noted the vehicle also had Texas license plates which had expired.
4. The arresting officer initially had probable cause to stop the Defendant for a traffic violation, operating a motor vehicle with a loud muffler; identify the operator and the ownership and registration of the vehicle; and thereafter issue the warning ticket for the loud muffler.
5. That the officer also had suspicions as to the possible transportation of drugs does not invalidate the traffic stop made where no search was made in the absence of the valid consent of the Defendant.
6. While the arresting officer hoped to induce the Defendant to consent to a search of his vehicle, the Defendant was not in custody, all documents had been returned to him, and he was free to depart at the time the consent was given.
7. The consent given was not coerced and the Court finds the Defendant affirmatively agreed to a ‘search’ of the vehicle.
8. The search by the officers did not exceed the consent given.”

B. Hearing on Motion to Reconsider

In June 1992, a hearing was held on defendant’s motion to reconsider and vacate the trial judge’s previous denial of defendant’s motion to suppress. Defendant’s evidence and argument at this hearing were that Officers Gaither and Heffner were untruthful in the initial hearing.

Michael Linskey, supervisor of radio communications for the Hli-nois State Police, described the procedures for handling incoming radio traffic between the office and the officers in the field. A logging machine records incoming radio traffic on a 24-hour tape. The machine displays the time each transmission is made. This system was functioning properly on February 1, 1991, the. day defendant was stopped and later arrested.

A telecommunicator also uses a separate computer to record the location of the officer and his activity code at the time the officer makes radio transmissions. The computer automatically records the time of each transmission. All records are made simultaneously with the transmission and any backdated entry of the records would be shown by an asterisk. Each recording is kept for a month and then is recorded over. The records are called activity notes and inquiry transaction reports.

Linsky testified “activity code 102Y” means the patrol code for the interstate. “Activity code 106” means a traffic stop where the officer gives his location and car information. The “activity code 106” initiates a five-minute waiting period. If the officer does not call back or respond to a status check in five minutes, the radio transmission in Pontiac, Illinois, will send backup to the location indicated by the officer’s initial transmission. If the officer responds within the five-minute window and reports he is secure, no backup is sent. “Activity code 106A” means a traffic stop in progress, no need to send backup. “Activity code 102Y” means a cleared traffic stop and the officer is back on patrol. “Activity code 837Y” means a drug investigation.

The defense submitted as evidence the computer records of Gaither’s and Heffner’s activities on February 1, 1991, the day defendant was arrested. Gaither’s report indicates at 9:34 a.m. on February 1 he made a radio transmission with a 106 activity code, representing a traffic stop. The stop was made on 1-55, at northbound milepost 152 on a brown Ford Ranchero with Texas license plate number 789IGJ. The next entry was at 9:36 a.m. and shows Gaither made an inquiry on a name. A second request at 9:36 a.m. was also an inquiry on a name. At 9:39 a.m. there was a 106A code entered, meaning Gaither had made his stop and had determined he was secure and did not need assistance; the transmission location again indicated Gaither was located on 1-55, northbound milepost 152 with a brown Ford Ranchero. The record indicates all entries were made simultaneously with Gaither’s transmission.

The activity notes show Gaither requested a canine unit to come to his location at 9:41 a.m. The report shows at 10:12 a.m. Gaither stated we have already found it, tell the canine unit to disregard, and Gaither requested a tow.

Heffner’s activity notes and transaction report for February 1 indicate that at 9:26 a.m. he was making a traffic stop on 1-55, at southbound milepost 158 on a white Ford, license number VB4674. The next entry shows an inquiry on a name at 9:29 a.m.; the record indicates the input was simultaneous with Heffner’s transmission. The next entry at 9:31 a.m. indicated Heffner had cleared his traffic stop to show he was secure and did not need assistance; Heffner again indicated he was on 1-55, at southbound milepost 158 with the white Ford. The next entry was at 9:35 a.m., indicating he was back on patrol on the interstate. At 10:17 a.m., Heffner made a radio transmission with the code 837Y, and at 10:23, he indicated a code 102Y and that he was on 1-55, northbound at milepost 152 (where defendant was stopped). There were no back entries on Heffner’s report with the exception of the last entry of the day.

The parties stipulated to the testimony of Glen Jaukkuri, the subject of Heffner’s traffic stop on February 1. Jaukkuri would have testified he was stopped by an Illinois State trooper and that the duration of the stop was approximately 10 minutes from start to finish.

The defense also submitted into evidence a cassette copy of the master tape for February 1, which was the recording of the radio transmissions between 9:32 and 10:17 by Gaither and Heffner to Pontiac. The tape was played for the court.

Linskey testified there is no way to determine whether an event is actually occurring simultaneously with an officer’s transmission. He agreed occasionally the communication system did not work properly and it is difficult to hear transmissions communicated to and from south McLean County. According to Linskey, difficulties with transmissions are fairly common from south of Bloomington, Illinois. An officer sometimes retransmits or follows up a transmission. Normally there is no notation of any transmission difficulties. If there was some discrepancy, it would be up to the officer if he wanted to note something had happened at an earlier time.

If an officer made a traffic stop (106), but had difficulty with the radio, if he clears from the stop he would transmit the activity code 102Y. He would have no reason to transmit a 106A. However, if an officer called out a 106A if he was no longer on the stop, communications would have no way to know one way or another.

Gaither and Heffner again testified they were together at the crossover at milepost 150 before defendant was stopped. Heffner testified he had no specific recollection of what he was doing earlier that morning. He left the crossover to assist Gaither one to two minutes after Gaither left.

Both testified Heffner was present when Gaither made the inquiry about defendant’s name to check the status of his license. The notation of 9:40 on defendant’s written warning represents the time Gaither wrote the warning.

Officers Gaither, Heffner, Colbrook and Sergeant McConkey all testified radio communications to and from Pontiac along the southern portion of McLean County on 1-55 are often difficult. As a result, transmissions must sometimes be made several times before they are acknowledged.

Gaither and Heffner testified they do not inform Pontiac routinely if it is a repeat call. Gaither testified it is fairly common for him to call in a code 106 after he has actually been on a code 106 for a period of time. He did not remember whether he had to repeat his transmissions about defendant’s stop. He also testified he inquires about the license plates and waits for the response before he turns on his red lights. He again testified the trailer ball hitch was blocking the defendant’s rear license plate as he followed defendant on February 1.

Heffner testified the notation of 9:25 on Glen Jaukkuri’s written warning represents the time he was filling out the warning. He admitted that by the time he fills in the time on a warning ticket he has been on the traffic stop for awhile because he will have already made the traffic stop, talked to the driver, decided to issue a warning ticket, and begun to fill out the form.

Heffner testified that while he made an inquiry on a name at 9:29 a.m., when he issues a written warning he does not wait until he receives the information from an inquiry before he begins filling out the warning. He did not remember if there were any transmission problems involved in the Jaukkuri stop. According to Heffner, the logs reflect approximate actions and times activities occurred during a day.

Colbrook testified he had been on the scene and standing by Gaither’s squad car a few minutes when he heard radio transmissions by Gaither to Pontiac on his portable radio regarding a canine unit. He merely showed up at the scene. He had not been summoned or sent to the scene and did not assume the stop was anything but run of the mill.

McConkey, the supervisor of the drug interdiction team, testified the radio logs are a general record of activities which occur and many times so much traffic comes in over the airwaves that they cannot be accurate. There are also times when radio traffic is so heavy that one cannot get through. According to McConkey, when he looks at the radio logs, he does not automatically presume the indicated time of when an activity occurred is accurate because of the volume of air traffic resulting in inaccurate entries and the difficulties in radio traffic in the southern part of McLean County. McConkey also testified it would take no less than eight minutes to travel from milepost 158, where Heffner’s logs indicate he inquired at 9:29 a.m. about a name of the person whose vehicle he had stopped at 9:26 a.m., to milepost 150, where defendant was allegedly initially observed by Gaither and Heffner and subsequently stopped by Gaither at 9:34 a.m. at milepost 152.

The court made the following factual findings:

“And it’s very clear to me that with Trooper Heffner inquiring as to the name of the stop he had at 9:29 that that could not occur at a time after that. So we know it had to be in the framework parameters of the 9:29. He couldn’t have occurred— when we look at 9:34 when Trooper Gaither is rolling, as he said, and giving an identification of getting a license check on the defendant’s vehicle, again that could not have occurred before the 9:34 start time. With that kind of a framework there is only the window of maybe * six minutes, forgetting about whether somebody called in late on the 106A, called in late on the 9:34, called in early on the 9:34. We have a framework of time when these circumstances testified to by the officers just couldn’t have occurred the way they said. The crossover — the court is of the opinion the officers are at the least mistaken as to this particular arrest occurring as a result of them sitting in the median cross-over talking to each other when the defendant went by, and I just find that not to be credible. Under the circumstances, since I find that not be credible, and I think there’s a number of other things that support in the record here that have been presented which support the fact that the testimony is faulted and cannot stand, and the court’s going to grant the motion to reconsider and vacate the order of denying suppression, and I will grant the suppression.”

The court’s written order indicated it found the testimony of the officers was not credible regarding the circumstances of the stop. Therefore, it was rejecting the balance of the evidence, finding probable cause for the stop did not exist and the search incident to the stop was improper.

II. Analysis

The State initially argues we must reverse the trial judge’s ruling because in granting the motion the trial judge concluded the officers lacked probable cause to stop defendant’s vehicle. Probable cause is not the proper standard. Rather, the State correctly notes the officer’s stop of defendant’s vehicle was proper if the evidence met the less demanding test of whether the officers had a reasonable articula-ble suspicion the driver was unlicensed, the vehicle was not registered, or the vehicle or the driver is otherwise subject to arrest for violation of a law. Delaware v. Prouse (1979), 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401.

A trial judge’s ruling on a motion to suppress will not be disturbed unless it is against the manifest weight of the evidence. (People v. Brown (1990), 136 Ill. 2d 116, 125, 554 N.E.2d 216, 220; People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899; People v. Gorman (1991), 207 Ill. App. 3d 461, 468, 565 N.E.2d 1349, 1353.) The officer’s conduct should be evaluated objectively, looking to whether the facts available to him warrant a person of reasonable caution to believe the officer’s action was appropriate. People v. Sorrells (1991), 209 Ill. App. 3d 1064, 1069, 568 N.E.2d 497, 500.

The State argues the trial judge erred by granting defendant’s motion to suppress because, even if the evidence at the reconsideration hearing were viewed as showing Gaither and Heffner could not have been present together to hear defendant’s loud muffler, the evidence established alternative reasons for Gaither to stop defendant’s vehicle. The alleged additional reasons were that the license plate on defendant’s vehicle was expired and it was partially obstructed by a trailer ball hitch.

Under some circumstances, each added reason could warrant stopping a vehicle. Information indicating the registration of a particular vehicle may be expired or invalid or a traffic violation has occurred authorizes an officer to stop the vehicle. (People v. Houldridge (1983), 117 Ill. App. 3d 1059, 1062, 454 N.E.2d 769, 772; Sorrells, 209 Ill. App. 3d at 1069, 568 N.E.2d at 500.) Sections 3 — 413(b) and (f) of the Illinois Vehicle Code require the registration plate of a vehicle to be clearly visible and the registration sticker to be current. 111. Rev. Stat. 1991, ch. 951/2, pars. 3 — 413(b), (f).

In this case, the evidence may have led the trial judge to conclude Gaither was authorized to stop defendant’s vehicle. Gaither testified that when he pulled onto the highway to stop defendant’s vehicle due to the loud muffler, he noted the license plate on the vehicle was partially obstructed and the registration sticker was expired. The State also admitted photographs into evidence which indicated these violations. Either violation could have provided ample reason for Gaither to stop defendant’s vehicle and issue a ticket.

Moreover, the fact Gaither only issued a warning to defendant for the loud muffler and not for the added violations does not defeat the reasonable basis for stopping defendant’s vehicle. An officer need not charge the person with the offense for which the person was originally stopped, and may decide not to charge a defendant with a minor violation after a more serious one is discovered. Sorrells, 209 Ill. App. 3d at 1069, 568 N.E.2d at 500.

The State directs us to cases where courts of review have reversed suppression orders. However, none of the cases cited address circumstances where a trial judge concluded the officer’s testimony was either in error or not credible. People v. Lillig (1988), 174 Ill. App. 3d 647, 648-49, 529 N.E.2d 256, 257 (suppression improper where defendant conceded he committed a traffic violation); People v. Perry (1990), 204 Ill. App. 3d 782, 786, 562 N.E.2d 618, 621 (suppression improper where vehicle lacked rear license plate); People v. Guerrieri (1990), 194 Ill. App. 3d 497, 502, 551 N.E.2d 767, 770 (judgment affirmed where defendant committed a traffic violation and had an obscured and possibly unsafe windshield).

The trial judge’s ruling in this case was based on his conclusion that the officers’ testimony was, at best, incorrect and, at worst, not credible. The cases relied on by the State do not involve similar factual discrepancies in the officers’ testimony. The trial judge concluded the officers’ testimony was suspect because of their persistence in claiming they were together on the crossover when defendant’s vehicle passed with a loud muffler, which initiated Gaither’s pursuit of defendant. The evidence at the reconsideration hearing undermined the officers’ claim that Heffner was also present at the crossover. He was issuing a ticket to a different motorist approximately eight miles from where defendant was allegedly observed by Gaither and Heffner. The trial judge also noted at the hearing that there were additional suspect facts which led to his conclusion.

Although Heffner testified he remembered the positions of his and Gaither’s vehicles in the crossover when they heard defendant’s loud vehicle, Heffner could not recall anything about his earlier stop of a motorist eight miles from defendant’s stop. Gaither, Heffner, and Col-brook each testified to remembering defendant consent to the search a number of times.

A trial judge’s evaluation of the weight and credibility of witnesses should not be substituted on appeal. (Sorrells, 209 Ill. App. 3d at 1070, 568 N.E.2d at 500.) Based on the evidence presented at the reconsideration hearing, it was within the province of the trial judge to conclude the loud muffler could not have been the reason defendant’s vehicle was stopped.

The State indicates the evidence that Gaither noted the expired license and that the license was partially obstructed warranted Gaither’s stop of defendant’s vehicle due to these violations. However, it was reasonable for the trial judge to conclude these observations were not made until after defendant was stopped for the alleged loud muffler. When the evidence established the stop was not made as described by the officers, the trial judge could reasonably have decided to give all the officers’ testimony less credence. The trial judge’s conclusion the testimony did not establish Trooper Gaither’s initial stop of defendant was warranted was not against the manifest weight of the evidence.

Because we conclude the trial judge’s ruling suppressing the evidence found in defendant’s vehicle and his statements made after his arrest was proper, we need not discuss whether defendant consented to the search of his vehicle after he was stopped.

III. Conclusion

Gaither’s and Heffner’s persistent testimony they were both present in the crossover when defendant’s loud muffler was heard was seriously undermined at the reconsideration hearing. The trial judge decided to disregard all of the officers’ testimony regarding the stop of defendant’s vehicle. No evidence remained to justify the stop of defendant’s vehicle. Absent a lawful stop, defendant would not have been in a position to voluntarily consent to the search of his vehicle. Granting the suppression motion was not against the manifest weight of the evidence.

Affirmed.

McCULLOUGH and LUND, JJ., concur.