text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY W. CONNOLLY, Defendant-Appellant.
    Fourth District
    No. 4—88—0597
    Opinion filed July 27, 1989.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Alan D. Tucker, State’s Attorney, of Havana (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On July 7, 1988, following a jury trial in the circuit court of Mason County, defendant Randy W. Connolly was convicted of burglary and felony theft. He was subsequently sentenced to concurrent extended terms of 14 years’ imprisonment for burglary and 10 years for theft.

On appeal, defendant maintains (1) the trial court erred in allowing evidence of defendant’s previous offenses of burglary and attempt (burglary) to prove his guilt of burglary and theft here; (2) he was denied his sixth amendment right to confront witnesses against him by the State’s introduction of a hearsay statement made by a nontestifying codefendant; (3) he was denied his right to a fair trial by the introduction of a plea-related discussion in violation of Supreme Court Rule 402(f) (107 Ill. 2d R. 402(f)); (4) he was denied his right to a fair trial by the State’s characterization of its case as undisputed and uncontradicted and thus focusing the jury’s attention on defendant’s failure to testify; (5) the court erred in considering the proceeds received by the defendant as a factor in aggravation; (6) his extended-term sentence for theft violated the provisions of section 5 — 8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005— 8 — 2(a)); and (7) the trial court erred in failing to advise the defendant of the possibility of treatment under the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1987, ch. 111½, par. 6301 et seq.). We reverse and remand for further proceedings.

Daniel Rohlfs testified at trial that he had entered a plea of guilty and was to receive a sentence of 4V2 years’ imprisonment for burglarizing a jewelry store in Havana, Illinois, on March 12, 1988. He stated that on that date, he was approached by defendant and Mark Basden and was asked if he wanted to “make some money.” He said he did, and they all drove from Springfield to Havana to look for a jewelry store to burglarize. Rohlfs testified (1) defendant and Basden were dressed in dark winter clothing and told Rohlfs to dress “warmly”; (2) defendant and Basden had various tools in the car and instructed Rohlfs to gather them into boxes; (3) when they found a jewelry store, the three men went to the back of the building to look for an alarm system; (4) defendant cut some of the wires leading to the jewelry store; (5) they were returning to the store, when a police car appeared, and they all “took off” running; (6) they then drove “aimlessly” around town and eventually returned to the store after the police had departed. Rohlfs said that defendant and Basden then instructed him to cut a hole in the roof of the jewelry store with an axe, drop into the store, grab all of the men’s rings and then open the back door for Basden and defendant. Rohlfs said it took him almost three hours to cut through, and when he later went to look for defendant and Basden, he could not find them anywhere in town. He said he then hid the jewelry he had taken and called defendant at his apartment in Springfield to come to Havana to get him. Rohlfs said he gave some of the jewelry to Basden and defendant, and they later split the proceeds from the sale of that jewelry. Rohlfs admitted that he had two previous burglary convictions. He also admitted that he had previously told the police that he cut the wires near the store, but he said he was initially reluctant to tell the police of defendant’s involvement. His testimony was corroborated in part by telephone bills showing collect calls from Havana to defendant’s apartment on March 13, 1988, by testimony of people who overheard the telephone calls, by a person who witnessed Rohlfs and defendant retrieving a box from where Rohlfs said he had hidden some of the jewelry and by testimony of two police officers.

Police officers Kevin Noble and Rod Boggs testified at trial that they were officers of the Havana police department and that they answered a “silent alarm” coming from Walker’s Jewelry Store at 10 p.m. on March 12, 1988. Noble said he saw no sign of forced entry and nothing out of the ordinary. He also said that he later saw defendant and Basden in Havana in the early morning hours of March 13.

Boggs testified he had seen the two men in the company of a third, unidentified man at a time when Rohlfs claimed the three of them were driving around waiting for the police to leave the jewelry store. He also testified that he later saw the car with two men sleeping inside. He said defendant produced a valid driver’s license and indicated he and his friend were traveling from Peoria to Springfield and stopped there to rest. Boggs said he did not detect any signs of alcoholic intoxication, and there were no alcoholic beverages or tools in the car. He said he then directed defendant to go to the nearest motel or to leave town.

Officer Leland Keith, of the Mason County sheriff’s office, testified that he arrested defendant on March 25, 1988, and defendant acknowledged that he had been in Havana on the night in question. He said he and Basden had been in Peoria, were drunk, and he did not commit any burglary. Keith said defendant then inquired as to whether they made “deals” in Keith’s county. The officer then testified over objection to a statement taken from Mark Basden six days prior to his death on March 18, 1988. In that statement, Basden also indicated he and defendant had been in Peoria, were drunk, and were returning to Springfield. Basden also said he and defendant had been asleep when the police approached their car and told them to get out of town. Basden denied participating in the burglary of the jewelry store and said he knew nothing about it.

John Cook, a detective in the Logan County sheriff’s department, then testified over defense objection that he had investigated a burglary of a grain elevator in Chestnut, Illinois, in the early morning hours of April 18, 1985. He said (1) someone had broken into the elevator building by prying a basement door and had cut wires to a loudspeaker positioned outside the building; (2) defendant was seen driving a car in the vicinity of the elevator at the approximate time of the burglary wearing a navy blue, hooded sweatshirt; (3) he searched defendant’s car and found a three-way lug wrench, a pry bar, screwdrivers, pliers, and a wire connector; and (4) his investigation revealed defendant was responsible for the burglary.

Sergeant Frank Natale of the Springfield police department testified that he investigated an attempt (burglary) at a grocery store in Springfield in the early morning hours of December 4, 1985. Natale testified (1) an alarm was triggered when wires near the roof of the store were severed; (2) the back door to the store bore fresh pry marks; (3) near the time the alarm sounded, police observed a man driving away in a car registered to defendant’s wife; (4) defendant was apprehended, on foot, near the store with wire cutters; (5) defendant was wearing a dark blue stocking cap, tan coat, Levis, and gloves; and (6) the officer’s investigation revealed defendant was responsible for the attempt (burglary).

At the close of trial, the jury was instructed that the other crimes evidence could be considered “solely on the issue of the defendant’s modus operandi, intent, knowledge, and presence.”

Defendant argues the trial court erred in admitting the evidence of prior offenses, because such evidence is irrelevant for any purpose other than to show defendant’s propensity to commit crime. Evidence of other crimes is not admissible for such purposes (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489), although it is admissible to prove motive, opportunity, intent, preparation, plan, or absence of mistake or accident and to show modus operandi. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 163-65 (4th ed. 1984).

If, as here, evidence of other crimes is admitted to prove modus operandi, there must be some clear connection between the other crime and the crime charged such that it creates a logical inference that if defendant committed one of the acts, he may have committed the other act. (People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292.) The similarities between the offenses cannot be features which are common to most such offenses (People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470), but both crimes must share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant. Nevertheless, it is not necessary that the crimes be identical for the other crime to be admitted in evidence to prove modus operandi. Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1297.

For example, in People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489, the defendant was convicted of a burglary during which a female occupant of the residence was attacked. The court held the State properly introduced evidence of a similar burglary where the same defendant had also gained entrance in the early morning hours by removing a screen and standing on a refuse basket. The defendant then made a similar attack on a woman sleeping in the residence. In People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251, the court affirmed a rape conviction and held that evidence of a similar rape committed by the defendant had been properly admitted to show modus operandi. Evidence was presented that, in both cases, the rapes were committed on the same college campus, within a few blocks of each other, on Saturday evenings. The rapist, in both cases, had been riding a bicycle, approached the victim using vulgar language, and dragged her into a dark place.

While here, the evidence indicated each of the burglaries involved a forced entry into a commercial establishment in the early morning hours, and each involved attempts to disable alarm systems, we cannot say these characteristics were “so unusual and distinctive as to be like a signature.” (E. Cleary, McCormick on Evidence §190, at 560 (3d ed. 1984).) Rather, those characteristics are common to a great number of burglaries. The evidence of other crimes to show modus operandi was thus unduly prejudicial despite the court’s limiting instruction.

In addition, the evidence of other burglaries, committed three years prior to the instant offense, was not relevant to disprove defendant’s claim that his presence in Havana was innocent. Nor does such evidence bear upon defendant’s intent or knowledge. Other crimes evidence is admissible only to prove intent, knowledge, or presence if it is closely related to the crime charged in point of time, place, and circumstance. (People v. Sigman (1976), 42 Ill. App. 3d 624, 633, 356 N.E.2d 400, 406.) The evidence was thus irrelevant for any purpose for which the jury was instructed to consider it, and the jury would likely consider it only to show a propensity on the part of the defendant to commit burglaries. For this reason alone, we must reverse this case and remand it for a new trial. However, defendant has made other valid claims of error which might arise in another trial, which we shall discuss.

Defendant argues his sixth amendment right to confront witnesses was violated by allowing Officer Keith to testify to a statement made by Mark Basden, who died prior to being charged in this burglary. The statement was admitted under the coconspirator exception to the hearsay rule.

In Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the United States Supreme Court held that the sixth amendment right of an accused to cross-examine the witnesses against him is violated by the introduction of a codefendant’s statement inculpating the defendant. The Court recognized that such statements are “presumptively unreliable” for the reasons that hearsay is generally considered to be unreliable, but also because “the arrest statements of a codefendant have traditionally been viewed with special suspicion” (Lee v. Illinois (1986), 476 U.S. 530, 541, 90 L. Ed. 2d 514, 526, 106 S. Ct. 2056, 2062) due to the codefendant’s desire to exonerate himself.

In order for the exception to apply, the statement must be made in furtherance of and during the pendency of the conspiracy. (People v. Parmly (1987), 117 Ill. 2d 386, 393, 512 N.E.2d 1213, 1216.) Statements made after the crime, for the purpose of concealment, are admissible so long as the efforts at concealment are proximate in time to the commission of the principal crime. People v. Link (1981), 100 Ill. App. 3d 1000, 1006, 427 N.E.2d 589, 593.

Here, the police officer testified that he had questioned Basden on March 18, 1988, at a time before the police had sufficient probable cause to arrest him. The officer said that Basden indicated he and defendant had been in Havana on the night in question but denied their participation in the burglary Thus, although the statement was inculpatory in that it confirmed defendant’s presence in the town while the burglary was committed, it was for the purpose of concealment in that it denied the commission of the offense by the conspirator. However, it did not have the “presumptive unreliability” found by the United States Supreme Court in Lee, since Basden was not attempting to shift the blame from himself to defendant. There was, therefore, no error in the admission of Basden’s statement.

Defendant next argues his statement to Keith inquiring as to whether “deals” were made in Keith’s county should not have been admitted under Supreme Court Rule 402(f), which provides:

“If a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (107 Ill. 2d R. 402(f).)

The rule was said to be a recognition of the significance of the negotiating process and the “appreciation of the devastating effect of the introduction of plea-related statements in the trial of the accused.” People v. Friedman (1980), 79 Ill. 2d 341, 351, 403 N.E.2d 229, 235.

In Friedman, the defendant called the Attorney General and inquired about “making a deal.” (79 Ill. 2d at 350, 403 N.E.2d at 234.) The defendant said he would, if convicted, rather go to a Federal prison than a State prison, and the investigator for the Attorney General indicated he had no control over that. The supreme court said defendant’s unsolicited statement was an offer to enter negotiation and a willingness to bargain and was thus inadmissible under Rule 402(f).

Here, although defendant’s statement was not so clearly a demonstration of defendant’s willingness to bargain, in that he had previously denied any involvement in the burglaries, it would nevertheless have the same “devastating effect.” The jury could have taken the statement as an admission of guilt despite defendant’s protestations of innocence. The statement should not be introduced on retrial.

Defendant next argues he was denied his right to a fair trial where the prosecutor repeatedly referred to the State’s evidence as “undisputed,” “uncontradicted,” or “undenied.” Defendant notes the prosecutor used those words a total of 18 times in his closing argument to the jury. Defendant maintains such argument improperly focused on defendant’s failure to testify and constituted plain error.

The parties recognize that the State must not make arguments intended or calculated to draw the jury’s attention to the defendant’s failure to testify. (Griffin v. California (1965), 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; People v. Burton (1969), 44 Ill. 2d 53, 254 N.E.2d 527.) The prosecution may, however, refer to the fact that the testimony of the State’s witnesses is uncontradicted even though the defendant would be the only person who could have contradicted it (People v. Mills (1968), 40 Ill. 2d 4, 8-9, 237 N.E.2d 697, 700), because this involves no more than an accurate summary of the evidence.

Here, the State noted “the evidence in large part, at least in my view, is undisputed.” He noted Rohlfs’ testimony was undisputed, it was undisputed that defendant was in Havana on the night of the burglary, and that all the other evidence was undisputed except for one witness who testified defendant was with her on March 13 rather than at Rohlfs’ apartment as Rohlfs had testified. The prosecutor then asked in rebuttal if defendant’s counsel ever denied defendant drove Rohlfs to Havana, denied there were burglary tools in the car, denied Basden and defendant looked in the window of the jewelry store, denied defendant cut the wires, or denied defendant disposed of the jewelry in Springfield.

While such comments may have been made only to emphasize the strength of the State’s case, there is a point where they overreach the limits of acceptable argument. Moreover, as pointed out by the appellate court in People v. Escobar (1979), 77 Ill. App. 3d 169, 178, 395 N.E.2d 1028, 1035, while the word “ ‘uncontradicted’ ” could apply to almost anyone, “ ‘undenied’ ” points more at the defendant. Anyone can contradict anything, but one denies an accusation. There, the repetition of the phrase “uncontradicted and undenied” six times was seen as deliberate and assured that the jury would not miss the nuance. While repetition itself is not necessarily fatal (People v. Hopkins (1972), 52 Ill. 2d 1, 284 N.E.2d 283), the prosecutor must take care, on retrial, not to unduly emphasize the lack of denial.

Defendant’s final arguments relate to sentencing. Defendant maintains initially that the trial court erred in considering the proceeds he received from the burglary as a factor in aggravation. Prior to imposing the maximum extended-term sentences on defendant, the court noted that the defendant “did receive compensation for the offense.” We agree that this was an improper factor to consider.

In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the court considered a virtually identical factual situation. Prior to imposing sentence, the trial court noted that defendant’s receipt of compensation in the form of the burglary’s proceeds was an aggravating factor. The supreme court noted, however, that the statute applied only to a defendant who receives remuneration, other than the proceeds from the offense itself, to commit the crime. The court said since “most burglaries and every theft involve proceeds, it is reasonable to conclude that the legislature already considered that factor in establishing the penalties.” (Conover, 84 Ill. 2d at 405, 419 N.E.2d at 909.) On retrial, the court should not consider the proceeds from the burglary as an additional factor in aggravation.

Defendant next contends his extended-term sentence of 10 years’ imprisonment for theft should be reduced, because it is not an offense of “the class of the most serious offense of which the offender was convicted.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2(a).) Defendant was convicted of a Class 3 felony for theft and a Class 2 felony for burglary. Thus, under the extended-term sentencing provision, only the burglary conviction could provide the basis for an extended-term sentence. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) The State concedes the extended term was improper, and, on remand, should defendant be again convicted of burglary and theft, the court should not impose an extended-term sentence for that offense.

Defendant’s final contention is that the trial court erred in failing to advise him of the possibility of treatment under the Alcoholism and Substance Abuse Act (Act). Section 22 of the Act provides:

“If a court has reason to believe that an individual convicted of a crime is an addict and the court finds that he is eligible to make the election provided for under section 21, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Department.” (Ill. Rev. Stat. 1987, ch. 111½, par. 6322.)

Section 21 provides that “[a]n addict who is convicted of a crime may elect treatment under the supervision of a licensed program designated by the Department unless” certain circumstances are present which are not applicable here. (Ill. Rev. Stat. 1987, ch. 111½, par. 6321.) In People v. Richardson (1984), 104 Ill. 2d 8, 17, 470 N.E.2d 1024, 1029, the supreme court held that the court’s duty to advise is mandatory.

Defendant argues here, the court had reason to believe, based on defendant’s presentence report, that defendant was an addict. He concludes, therefore, that he should have been advised of his eligibility for treatment under the Act and, based on Richardson, the cause should be remanded for resentencing.

Because we are remanding this case for other reasons, and because defendant is now aware of his right to elect treatment under the Act, we need not decide whether the court’s failure to inform defendant of his eligibility under the Act was reversible error.

For the reasons stated, the judgment of the trial court is reversed, and we remand the cause for a new trial consistent with this opinion.

Reversed and remanded.

KNECHT and SPITZ, JJ, concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McCULLOUGH

license: Public Domain

text:
    STEVEN DUKES, Plaintiff-Appellant, v. J.I. CASE COMPANY, Defendant and Third-Party Plaintiff (McCartin-McAuliffe Plumbing & Heating, Inc., Third-Party Defendant-Appellee).
    Fourth District
    No. 4—88—0845
    Opinion filed July 20, 1989.

      Phebus, Tummelson, Bryan & Knox, of Urbana (Joseph W. Phebus and Jeffrey W. Tock, of counsel), for appellant.
    Craig J. Causeman, of Thomas, Mamer & Haughey, of Champaign, for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Steven Dukes appeals the denial of his petition for declaratory judgment. In the petition, Dukes sought an order declaring that the defendant, McCartin-McAuliffe Plumbing & Heating, Inc. (McCartin), must pay 25% of the reimbursement received from Dukes pursuant to section 5(b) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)) to Dukes’ attorneys as required by section 5(b). Dukes contends the trial court’s finding that Dukes’ attorneys did not substantially contribute to Dukes’ recovery in a products liability action against J.I. Case Company (Case) is contrary to the evidence. In addition, Dukes maintains that because McCartin was reimbursed for the workers’ compensation benefits it paid to Dukes, Dukes’ attorneys are entitled to payment as provided in section 5(b). We agree and reverse.

This case began in 1978 when Dukes was injured on the job while employed by McCartin. Dukes received workers’ compensation payments from McCartin in the amount of $60,500.58. On November 26, 1980, a products liability action against Davis Manufacturing (now J.I. Case Company) (Case) was filed on Dukes’ behalf by attorneys for Mc-Cartin to preserve McCartin’s ability to recover the workers’ compensation benefits paid to Dukes. On February 15, 1982, attorneys for Dukes filed an appearance in the action and McCartin’s attorneys withdrew as counsel for Dukes on March 19, 1982. On October 29, 1982, Case filed a contribution action against McCartin. After a jury trial in April 1984, Dukes was awarded $175,000 in damages, reduced to $148,750 because of Dukes’ conduct while using the equipment. The jury also found Case was 47.05% liable and McCartin was 52.95% liable for Dukes’ damages.

This court reversed the reduction of Dukes’ damages and the apportionment of damages in the first appeal. (Dukes v. J.I. Case Co. (1985), 137 Ill. App. 3d 562, 483 N.E.2d 1345.) The supreme court affirmed this court’s decision on the reduction of Dukes’ damages but reversed our decision on the apportionment of damages and remanded the case back to this court. (Dukes v. J.I. Case Co. (1987), 118 Ill. 2d 447, 516 N.E.2d 260.) On remand, this court affirmed the jury’s apportionment of damages. Dukes v. J.I. Case Co. (1988), 170 Ill. App. 3d 1162 (unpublished order under Supreme Court Rule 23).

On February 3, 1988, Dukes filed a petition for declaratory judgment. In his petition, Dukes stated that attorneys for McCartin denied liability for attorney fees under section 5(b) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).) Dukes requested an order declaring McCartin was liable for the 25% payment as provided in section 5(b).

On November 10, 1988, the trial court denied Dukes’ petition. The court found that: (1) the services of Dukes’ counsel did not substantially contribute to the procurement of the proceeds; (2) that Dukes is not entitled to the 25% attorney fee award because McCartin, not Dukes, instituted a suit against Case; and (3) the section 5(b) attorney fee provision is operative only in situations where the ultimate apportionment of fault is such that the employer is not exposed to liability beyond its prior workers’ compensation outlay.

Dukes contends that the trial court’s decision fails to address the issues argued by the parties. Dukes maintains that the parties agree that Dukes’ attorneys “substantially contributed” toward the procurement of the judgment against Case and, therefore, the only issue under section 5(b) is whether McCartin has been “reimbursed.” Dukes argues McCartin has been reimbursed, and thus, McCartin must pay 25% of its reimbursement to Dukes’ attorneys. According to Dukes, the fact that McCartin’s lien ($60,500.58) is less than its liability ($92,662.50), as established in the products liability action, is irrelevant.

McCartin contends it was not reimbursed because its liability exceeds the workers’ compensation benefits it has paid. Regarding the issue of “substantial contribution,” McCartin admits it did not dispute this issue in the trial court and agrees that Dukes’ attorneys did substantially contribute to plaintiff’s efforts to obtain the judgment. However, McCartin urges that “substantial contribution” must be interpreted to mean efforts expended on McCartin’s behalf. Because Dukes’ attorneys did not act for McCartin, the trial court’s order must be affirmed. In the alternative, McCartin urges this court to adopt the trial court’s reasoning regarding “an accommodation” between the Act and “An act in relation to contribution among joint tortfeasors” (Contribution Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.).

Section 5(b) of the Act provides:

“[Paragraph No. 1:] (b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
[Paragraph No. 2:] Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.
[Paragraph No. 5:] In the event the employee or his personal representative fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred, the employer may in his own name or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act, and costs, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).)

The trial court reasoned that because the products liability action was filed on Dukes’ behalf by McCartin, paragraphs 1 through 4 of section 5(b) do not apply. The trial court focused on the last paragraph of section 5(b), above, which states in part:

“In the event the employee *** fails to institute a proceeding against such third person *** the employer may in his own name or in the name of the employee *** commence a proceeding against such other person *** and out of any amount recovered the employer ***.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b).)

While McCartin filed the action against Case in Dukes’ name, the record establishes that McCartin’s attorneys merely filed the complaint and answered some interrogatories. Thereafter, Dukes’ attorneys prosecuted the action against Case. Dukes urges that McCartin’s actions do not preclude this case from falling within paragraphs 1 through 4 of section 5(b).

In ascertaining legislative intent, the statute must be read as a whole and all relevant parts must be considered. (People v. Jordan (1984), 103 Ill. 2d 192, 469 N.E.2d 569.) There is a presumption that the legislature did not intend to enact a statute with unjust consequences. In re Application of Boone County Collector (1985), 131 Ill. App. 3d 939, 945, 476 N.E.2d 800, 804.

Viewing all paragraphs of section 5(b) as a whole, rather than disjunctively, we do not find McCartin’s argument persuasive. In our view, section 5(b) allows attorneys for employees who obtain a judgment from a third party to recover from the employer 25% of the workers’ compensation lien if the employee’s attorneys substantially contributed to the procurement of the judgment. In addition, section 5(b) allows an employer who obtains a judgment against a third party for an employee to charge his or her reasonable attorney fees against that portion of the judgment in excess of the employer’s lien. Paragraphs 2 and 5 of section 5(b) must be read to contemplate which party’s attorneys litigate the third-party action. Only when the employer brings the suit and litigates the suit to a judgment can the employer receive the amount of the compensation lien free from the obligation to pay 25% of the reimbursement to the employee’s attorneys.

Whether Dukes’ attorneys substantially contributed to the procurement of the proceeds out of which McCartin is reimbursed is a question of fact. (Reno v. Maryland Casualty Co. (1962), 27 Ill. 2d 245, 249, 188 N.E.2d 657, 659.) It is undisputed that the attorneys for Dukes have litigated this suit against Case from February of 1982 through the several appeals to this court and to the supreme court. The undisputed facts establish that Dukes’ attorneys did substantially contribute to the procurement of the judgment by prosecuting this suit. Accordingly, the trial court erred in focusing on the party who filed the suit as opposed to the party who litigated and recovered a judgment from the third-party action.

Dukes also contends the trial corut’s reliance on dicta in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382, to support its conclusion was erroneous. In Doyle, the court held that the Contribution Act does not immunize an employer from a third-party action for contribution for injuries sustained by an employee, notwithstanding the fact that no direct action by the employee against the employer could lie because of section 5(a) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a); Doyle, 101 Ill. 2d at 14, 461 N.E.2d at 388.) The Doyle court went on to note a potential conflict between the Contribution Act and section 5(b) of the Act. Specifically, the court stated:

“In this connection, however, we feel compelled to invite the attention of the parties to the possible relevance of the provisions of section 5(b) of the *** Act [citation]. In substance it allows an employer to recoup the amount of the compensation paid by him to his injured employee from the proceeds of any award, judgment or settlement fund out of which the employee might be compensated for his injury by a third party *** who has caused the employee’s injuries. The extent to which any right of contribution from the employer under the Contribution Act may impact upon this right of recoupment by the employer has not been raised by the parties in their pleadings and consequently not briefed. At this point, absent the assistance of any guidance by the third-party plaintiff and the employer, and bearing in mind that this case is still at the pleading stage, we are not prepared to indicate how this aspect of the *** Act ma,y affect the operation of the Contribution Act or what adjustments will be necessary because of the recoupment provision. Nevertheless, we caution that some accommodation between these two statutes may be in order.” Doyle, 101 Ill. 2d at 14-15, 461 N.E.2d at 388-89.

In the instant case, the trial court interpreted this language as suggesting that once an employer’s liability for contribution has been established, this amount operates as a “cap” on the amount an employer must be “out of pocket.” According to the trial court, where, as here, the liability of an employer, in contribution exceeds any compensation benefits paid to an employee, the employer is not liable for the payment of attorney fees under section 5(b). McCartin urges the trial court’s reasoning effects a result in keeping with the jury’s apportionment of damages between Case and McCartin, where McCartin was found liable to Dukes in the total amount of $92,662.50. If Mc-Cartin were ordered to pay 25% of the workers’ compensation benefits paid or $18,852.80 to Dukes’ attorneys, its overall liability would be in excess of that amount set by the jury.

McCartin’s liability established in the third-party action is irrelevant to the issue presented and thus, we reject McCartin’s argument. We find support for our conclusion in Carver v. Grossman (1973), 55 Ill. 2d 507, 305 N.E.2d 161, and Kochan v. Arcade Electric Co. (1987), 160 Ill. App. 3d 1, 512 N.E.2d 1295, where it was decided that an employer’s negligence has nothing to do with the employer’s statutory right to recover, in full, compensation payments made to an employee. Likewise, an employer’s negligence is irrelevant to the obligation of an employer to pay attorney fees under section 5(b) if the substantial contribution test is met.

Further, the quoted language from the Doyle case relied upon by the trial court cannot be viewed as authority for this case. Nowhere in this language did the Doyle court refer to the provision in section 5(b) concerning attorney fees. Rather, the general discussion in Doyle ■ concerned the Contribution Act, not the Workers’ Compensation Act. Any suggestion that the Doyle court may have envisioned the situation herein presented does not permit this court to ignore the plain language of section 5(b) of the Act.

Section 5(b) is unambiguous regarding attorney fees. Where the language of a statute is certain and unambiguous, “the only legitimate function of the courts is to enforce the law as enacted by the legislature.” (Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 84, 256 N.E.2d 758, 764.) “It is never proper for a court to depart from plain language by reading into a statute exceptions, limitations or conditions which conflict with the clearly expressed legislative intent.” Sheahen, 45 Ill. 2d at 84, 256 N.E.2d at 764.

We also note the reasoning employed by McCartin would place the burden for attorney fees in these types of cases on those employers found culpable for an employee’s injuries in an amount less than their workers’ compensation lien, while relieving those employers found more culpable from a statutory obligation. This court cannot sanction such a result, given a legislative enactment which does not so provide.

The parties next ask this court to determine the meaning of the term “a reimbursement” in section 5(b). Although the parties argued this issue below, the trial court did not address the issue.

Dukes argues “reimbursement” refers to the amount of an employer’s compensation lien and has no relation to liability under the Contribution Act. Dukes cites Reno v. Maryland Casualty Co. (1962), 27 Ill. 2d 245, 188 N.E.2d 657, and Railkar v. Boll (1970), 125 Ill. App. 2d 203, 260 N.E.2d 851, in support of his argument.

McCartin contends that it did not receive any “reimbursement” from Dukes’ suit against Case but instead received additional liability in the amount of $32,161.92, the difference between its contribution liability ($92,662.50) and its compensation lien ($60,500.58). Because it was not reimbursed, McCartin argues it is not liable to pay 25% of its compensation benefits to Dukes’ attorneys. McCartin again argues its analysis effects an accommodation between the Contribution Act and the Act.

In RailJcar, the amount recovered in the third-party action was less than the employer’s compensation lien. Before determining whether the 25% was applied against the gross recovery or the net remaining after costs were deducted, the court concluded that the term “any reimbursement” in section 5(b) refers to the amount of the employer’s lien repaid by the employee out of any recovery in a third-party action.

Similarly, in construing section 5(b), the Reno court stated:

“The plain purpose of this provision, which was added to section 5(b) in 1957, was to require an employer to contribute to the necessary costs of the employee’s recovery against a negligent third party where the employer is to receive reimbursement from the recovery for workmen’s compensation payments made or to be made to the employee.” (Emphasis added.) Reno, 27 Ill. 2d at 247, 188 N.E.2d at 658.

We conclude “reimbursement” in section 5(b) refers to the amount of an employer’s compensation lien and has no connection with an employer’s liability as established in a third-party action. Thus, McCartin has received reimbursement and is required under section 5(b) to pay 25% of this amount to Dukes’ attorneys. While it may be that had McCartin not filed the suit against Case on Dukes’ behalf, it is likely Dukes would not have recovered anything and Mc-Cartin would not be before this court, the fact remains that Dukes did recover against Case and is entitled to the statutory attorney fees. Equity cannot prevail against the unambiguous evidence of legislative intent. See Continental Casualty Co. v. Sweda (1969), 113 Ill. App. 2d 423, 251 N.E.2d 65.

For the foregoing reasons, we reverse the order of the trial court.

Reversed.

LUND and KNECHT, JJ., concur.


author: JUSTICE SPITZ

text:
    JAMES KELLER, Plaintiff-Appellant, v. BOATMAN’S BANK, f/k/a Belleville National Bank, Defendant-Appellee.
    Fourth District
    No. 4—89—0141
    Opinion filed August 4, 1989.
    Alfred B. LaBarre, of Heckenkamp, Simhauser & LaBarre, of Springfield, for appellant.
    Steven M. Wallace, of Carr, Korein, Schlichter, Tillery, Kunin & Mon-troy, of East St. Louis, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court;

Plaintiff’s amended complaint alleged defendant breached statutory duties owed to plaintiff under the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1987, ch. 26, par. 1 — 101 et seq.). Defendant argued section 13 — 205 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205) barred the complaint because it was not timely filed and did not relate back to an earlier complaint. These are the issues raised on appeal. We reverse the decision of the trial court for the reasons specified herein.

On August 14, 1980, Juici-Rich Products, Inc., a Springfield-based company engaged in the production and sale of fresh fruit juices, entered a written lease agreement with L & L Financial Corporation (L & L) to lease a “Form-Pak” filling/sealing machine. L & L purchased the machine from R.H. Packaging Systems, Inc., of Clearwater, Florida. Defendant bank financed L & L’s purchase of the machine. As consideration, L & L issued three demand notes to defendant totalling $123,715.72. As security for the notes, L & L assigned its interest in the lease, among other things, to defendant. Juici-Rich claims it purchased a certificate of deposit (CD) for $20,000 from defendant on February 24, 1981, to be held on deposit at defendant bank. As additional security for the demand notes and lease, James R. Keller, president and shareholder of Juici-Rich, personally and as guarantor of the demand notes, assigned the certificate of deposit to the bank on March 31,1981.

The assignment was made to secure payment and performance of the following: All notes issued by L & L showing advances by the bank in connection with the purchase of the machine, all obligations of Juici-Rich as lessee of the machine, and any additional sums subsequently advanced by the bank in connection with the purchase and lease of the equipment. Keller assigned all rights, title, and interest in the CD, to be held by the bank until the bank released it or until the expiration of the equipment lease. In the event of default by L & L or Juici-Rich under the equipment lease, the assignment gave the bank authority to liquidate or otherwise realize on the CD and apply the proceeds to the indebtedness, without notice or demand.

The machine delivered by R.H. Packaging was unacceptable to Juici-Rich. L & L defaulted on the demand notes. On January 26, 1982, the circuit court of Sangamon County filed its final order in a replevin action brought by the bank against Juici-Rich, case No. 81— LM — 1425. The court found Juici-Rich wrongfully detained items of personal property the bank was entitled to possess. The court held Juici-Rich in default for refusing to surrender the property after demand and awarded the bank final judgment for possession. On July 28, 1982, the bank cashed the certificate of deposit then worth $23,253.32. The bank repossessed the machine and sold it on October 25, 1982, for $124,808.34. The bank distributed $33,191.66 of the proceeds from the CD and the sale of the machine to R.H. Packaging Company and retained the remainder.

Juici-Rich filed a lawsuit against defendant bank in Sangamon County on September 9, 1986. The complaint alleged Juici-Rich purchased a $20,000 CD from defendant bank on February 24, 1981, and never pledged or assigned any interest in the CD to defendant bank. Juici-Rich alleged defendant bank unlawfully converted the CD and applied the proceeds for its own benefit on July 28, 1982. Defendant bank refused to pay Juici-Rich and so Juici-Rich sought damages in excess of $23,253.32 plus interest.

Defendant bank filed its answer and motion to dismiss on October 20, 1986, denying Juici-Rich had standing to sue. Defendant claimed Juici-Rich did not purchase the CD and never owned it. A photocopy of the CD shows James Keller’s name on the document as depositor of the $20,000. The CD was nonnegotiable and nontransferrable. The bank’s answer went on to state:

“Because of defaults by L & L Financial Corporation and because of default by [Juici-Rich] under the referenced equipment lease, as specifically authorized in the last paragraph of said Assignment, Defendant properly setoff, liquidated, and realized the proceeds of said [CD] to apply on obligations secured by said Assignment ***.”

Finally, the bank claimed the setoff of the CD was proper under the terms of the final judgment issued January 26,1982.

On December 15, 1986, the trial court granted defendant’s motion to dismiss with leave to amend. James Keller filed an amended complaint against defendant bank on December 2, 1987. He alleged the bank’s distribution to R.H. Packaging violated section 9 — 504(l)(a) of the UCC (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 504(1)(a)) and claimed the surplus funds should have been distributed to him pursuant to section 9 — 504(2). Defendant filed a motion on January 8, 1988, to transfer the case to St. Clair County, Illinois, or, alternatively, dismiss it. Defendant claimed it does not do business in Sangamon County and is not a resident of that county. None of the documents executed pursuant to the transactions described above were executed in Sangamon County. The CD was purchased and delivered in St. Clair County, Illinois. The machine was not purchased in Sangamon County. Defendant urged transfer of the case to St. Clair County, a more accessible forum for documents and witnesses.

On January 11, 1988, defendant filed a motion to dismiss alleging a cause of action did not accrue within five years before the lawsuit was filed, as required by section 13 — 205 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205). Defendant claimed Keller’s amended complaint did not relate back to the date Juici-Rich filed its complaint against defendant because Keller’s complaint stated a new cause of action by a new party. Thus, the action was barred by section 13 — 205 of the Code. Alternatively, defendant sought involuntary dismissal of the lawsuit pursuant to section 2 — 619(a)(9) of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) The 1986 lawsuit by Juici-Rich against defendant was dismissed with leave to file an amended complaint. Juici-Rich never filed an amended complaint and defendant argues Keller’s complaint does not qualify as the amended complaint as it is by a new party and states a new cause of action. On January 10, 1988, the Sangamon County circuit court entered a docket entry granting defendant's motion for involuntary dismissal. Plaintiff appeals.

The first issue on appeal concerns the applicable statute of limitations. Plaintiff argues his action is one based on a written contract and is subject to the 10-year limitation found in section 13 — 206 of the Code. Defendant asserts the five-year limitation found in section 13— 205 of the Code is applicable because plaintiff’s complaint alleges defendant abridged a statutory duty owed under the UCC and falls within the “all civil actions not otherwise provided for” category. Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205.

Counts XVII and XVIII of plaintiff’s complaint read as follows:

“XVII. The distribution of $33,191.66 to R.H. Packaging was improper and in violation of Illinois Revised Statutes, chapter 26, paragraph 9 — 504(1).
XVIII. Proceeds in excess of those retained by defendant constitute a surplus and should have been distributed to plaintiff JAMES KELLER pursuant to Illinois Revised Statutes, chapter 26, paragraph 9 — 504(2).”

The Illinois Supreme Court in Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162, 317 N.E.2d 505, 507, stated: “We think that it is the nature of the plaintiff’s injury rather than the nature of the facts from which the claim arises which should determine what limitations period should apply.” In that case the court agreed with the plaintiff wife that a loss of consortium action is a “civil action not otherwise provided for” and applied the five-year limitation period rather than the two year period for personal injury suits. In Stanger v. Felix (1981), 97 Ill. App. 3d 585, 422 N.E.2d 1142, the plaintiff’s suit alleged malicious prosecution by defendant. Defendant moved to dismiss, claiming the two-year statute of limitations for malicious prosecution had expired. Plaintiff argued the five-year limit for damaged personal property applied because defendant’s actions hindered and prevented her from conducting her affairs and business. The court wrote:

“In analyzing plaintiff’s theory, we note, first, that sections 13, 14 and 15 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, pars. 14, 15, 16) were framed by the Legislature not '*** upon the form of the particular action named but on the particular injury sued for or upon the obligation out of which the action grows.’ (Handtoffski v. Chicago Consolidated Traction Co. (1916), 274 Ill. 282, 285, 113 N.E. 620.)” Stanger, 97 Ill. App. 3d at 587, 422 N.E.2d at 1144.

Plaintiff’s complaint clearly alleged defendant abridged a statutory duty, not a written contract. The 10-year limitation period found in section 13 — 206 does not apply unless the action is on the contract itself. (Bates v. Bates Machine Co. (1907), 230 Ill. 619, 82 N.E. 911; Handtoffski v. Chicago Consolidated Traction Co. (1916), 274 Ill. 282, 113 N.E. 620.)

“Causes of action arising on statutes or ordinances are not written contracts within the meaning of the Limitation Act. Rath v. City of Chicago [1917], 207 Ill. App. 117; N.K. Fairbank Co. v. City of Chicago [1910], 153 Ill. App. 140; Parmelee v. Price [1904], 208 Ill. 544; Blakeslee’s Storage Warehouses, Inc. v. City of Chicago [1938], 369 Ill. 480.” (Lyons v. County of Morgan (1942), 313 Ill. App. 296, 298, 40 N.E.2d 103, 104.)

Plaintiffs in the Lyons case sued the county to recover monies the county had a duty to pay under “An Act for the relief of the blind” (Ill. Rev. Stat. 1941, ch. 23, par. 279). Plaintiff claimed the 10-year statute of limitations applied because the suit was based on a written contract or “other evidences of indebtedness in writing.” (Lyon, 313 Ill. App. at 298, 40 N.E.2d at 104.) The third district disagreed and instead applied the five-year statute of limitations:

“ ‘The obligation of the county to pay and the right of the plaintiffs to receive the benefits sought to be recovered in the present action arise by virtue of the statute. It has been held that where liability results from a statute, an action to enforce such liability is a “civil action not otherwise provided for” within the meaning of section 15 of the Limitations Act, and is therefore governed by the five year statute of limitations. Parmelee v. Price, 208 Ill. 544; Blakeslee’s Warehouses, Inc. v. City of Chicago, 369 Ill. 480).’ ” Lyons, 313 Ill. App. at 298, 40 N.E.2d at 104, quoting People ex rel. Powles v. County of Alexander (1941), 310 Ill. App. 602, 604, 35 N.E.2d 92, 94.

See also Pope v. Kaleta (1967), 90 Ill. App. 2d 61, 234 N.E.2d 109; Gibraltar Insurance Co. v. Varkalis (1969), 115 Ill. App. 2d 130, 253 N.E.2d 605; Montague v. George J. London Memorial Hospital (1979), 78 Ill. App. 3d 298, 396 N.E.2d 1289.

Plaintiffs complaint for breach of a statutory duty distinguishes this case from Kerr v. Schrempp (1945), 325 Ill. App. 614, 60 N.E.2d 636, cited by plaintiff as authority for application of the 10-year statute of limitations. In Kerr, the assignees of a promissory note sued the devisees of the deceased debtor to recover the amount due on the note. Illinois statutes at the time provided that when the estate of a devisor of land was insufficient to pay his creditors, the devisees of the realty were liable to his creditors for his debts. (Ill. Rev. Stat. 1945, ch. 59, par. 12.) The defendant devisees argued the action was a “civil [action] not otherwise provided for” and subject to the five-year statute of limitations, which would bar the suit. (Kerr, 325 Ill. App. at 620, 60 N.E.2d at 639.) The court agreed with the defendant and found a cause of action based on the devisor’s obligation to pay the promissory note. The statute provided only a remedy, not the basis of the cause of action. Kerr, 325 Ill. App. at 620-21, 60 N.E.2d at 639-40.

The plaintiff in Kerr sued on the contract, the promissory note. The plaintiff in this case seeks damages for breach of a statutory duty. We find the Kerr case inapplicable to the case at bar and affirm the trial court’s decision applying the five-year limitation found in section 13 — 205 of the Code.

The second issue on appeal is whether the amended complaint filed by plaintiff James Keller relates back to the complaint filed by Juici-Rich on September 9, 1986. Section 2 — 616(b) of the Code provides:

“The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(b).

Plaintiff maintains his complaint relates back to the 1986 complaint filed by Juici-Rich, dismissed for lack of standing. According to plaintiff, the amended complaint did nothing more than substitute the proper plaintiff and present information regarding Keller’s assignment of the CD to the bank, “instead of simply alleging conversion the Amended Complaint sets out the transaction and showed [sic] how the conversion occurred; namely that the Bank acquired funds through the exercise of its rights under certain written agreements but then failed in its duty to properly disburse those funds.” Plaintiff argues the amended complaint relates back to the original complaint as the cause of action arose from the same transaction as the cause of action originally asserted. Further, “Defendant Bank’s own motion to dismiss clearly shows that the Complaint and Amended Complaint relate to the same transaction.” Plaintiff cites no authority for his assertion that under section 2 — 616 amendments are to be broadly construed, including the introduction of a party who should have been originally named as plaintiff.

Defendant argues the amended complaint does not relate back to the Juici-Rich complaint. Defendant’s position is that the amended complaint asserts a new cause of action by a new party and is time barred by the five-year limitation period of section 13 — 205. The JuiciRich complaint alleged a cause of action for common law conversion, whereas the amended complaint is based on breach of a statutory duty to disperse the funds received through the sale of the collateral, according to the rules found in section 9 — 504 of the UCC.

“Under [the] statute [Ill. Rev. Stat. 1987, ch. 110, par. 2— 616(b)], an amended pleading will not be deemed to relate back to the original pleading so as to avoid the impact of the statute of limitations unless the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266, 271, 489 N.E.2d 1342, 1344.) An amended complaint is deemed to relate back to the original pleading when the original pleading provides the defendant with all the information necessary to prepare his defense to the subsequently asserted claim. (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 712, 512 N.E.2d 824, 825.) The rationale for this rule is that a defendant will not be prejudiced so long as his attention has been directed to the facts which form the basis of the claim lodged against him within the prescribed time. Perkins v. Pepsi-Cola General Bottlers, Inc. (1987), 158 Ill. App. 3d 893, 900, 511 N.E.2d 901, 906.” Bailey v. Petroff (1988), 170 Ill. App. 3d 791, 797, 525 N.E.2d 278, 282.

We find the plaintiff’s amended complaint relates back to the original complaint. The amended complaint grew out of the same transaction as the Juici-Rich complaint, namely, the actions taken by the bank in regard to the CD. The original complaint provided defendant with information on the basis of plaintiff’s claim and allowed defendant to prepare a defense, even to the amended complaint.

“In determining whether amended pleadings related back to the filing of the initial pleading, earlier cases sometimes drew a distinction between statutory causes of action, where the filing of a complaint within a certain time period after the occurrence of an event is required by the statute which creates the action, and is thus a condition precedent to bringing suit, and common law causes of action, to which the general statutes of limitations apply. (See Anderson v. Behr (1939), 299 Ill. App. 90, 19 N.E.2d 428.) Recent decisions have, however, tended to abandon this distinction.” (Grunloh v. Effingham Equity, Inc. (1988), 174 Ill. App. 3d 508, 523, 528 N.E.2d 1031, 1040.)

Thus, it is not particularly significant that the amended complaint was not founded on common law. This case is distinguishable from our decision in McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill. App. 3d 417, 490 N.E.2d 115, where we held the wife’s claim for loss of consortium, filed after the two-year limitation period for her husband’s personal injury suit, stated a new cause of action by a new party and did not relate back. Here, as in McGinnis, the new claim was brought by a different party but arose from the same transaction. However, here, although the new claim was based on a slightly different theory, it concerned the same injury as alleged in the original claim and was brought by the proper party to sue for that injury. There, the new claim was for an injury not disclosed in the original pleading.

Because we find the original complaint was timely filed within the applicable five-year statute of limitations and the amended complaint relates back, the judgment of the Sangamon County circuit court is reversed and remanded.

Reversed and remanded.

McCULLOUGH, P.J., and GREEN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHELLE PICKENS, Defendant-Appellant.
    Fourth District
    No. 4—88—0579
    Opinion filed August 4, 1989.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

After entering a plea of guilty, defendant was convicted of the offense of prostitution (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 14(a)), a misdemeanor. Pursuant to the terms of the plea agreement, defendant was to be placed on 12 months’ probation, with a hearing to be held at a later date to determine the issue of travel restrictions as a condition of probation. The trial court accepted defendant’s plea. Thereafter, on May 9, 1988, after an evidentiary hearing, the court ordered the following travel restriction as a condition of defendant’s probation: “that she not enter the area of the City of Champaign bounded on the north by the Illinois Central Gulf Railroad tracks, on the east by First Street, on the south by University Avenue, and on the west by Lynn Street without first receiving the written permission of her probation officer; that restriction on her travel to remain in full force and effect throughout the duration of her probation.” Defendant filed a motion to withdraw her guilty plea on the basis of the travel restriction as violating her constitutional rights. The motion was denied and this appeal followed.

We first consider whether this cause has been rendered moot by virtue of the defendant having served her term of probation. When a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved, even when such facts are not in the record, the court will dismiss the appeal. (See People v. Lynn (1984), 102 Ill. 2d 267, 272, 464 N.E.2d 1031, 1034 (and cases cited therein).) Reviewing courts are not in the business of advisory opinions. Nevertheless, it is true that Illinois courts have occasionally found exceptions to the mootness doctrine, including those wherein review is granted to allow a party to vindicate an interest in a controversy which is likely to recur, but unlikely to last long enough to allow appellate review to take place. (See, e.g., Madison Park Bank v. Zagel (1982), 91 Ill. 2d 231, 235, 437 N.E.2d 638, 640, citing August H. Skoglund Co. v. Department of Transportation (1978), 67 Ill. App. 3d 276, 384 N.E.2d 849; see also In re Wathan (1982), 104 Ill. App. 3d 64, 65, 432 N.E.2d 670, 671 (in context of involuntary admission under mental health code, recognizing exception to mootness doctrine when dismissal would eliminate an entire class of cases from appellate review).) We deem this to be such a case.

The incident which led to defendant’s conviction transpired at Washington Street and Prairie in Champaign, Illinois, within the geographic area of the travel restriction which was imposed. At the hearing held on the proposed travel restriction as a condition of probation, the State offered the testimony of Gary Spear, crime analyst for the Champaign police department, that he had analyzed prostitution arrests occurring from January 1, 1983, through April 26, 1988, and plotted the arrests on a city map. He found 95% of these arrests, 305 of the 321 arrests made, occurred within an area bordered by the Illinois Central Railroad tracks on the north to Springfield Avenue on the south, and from Lynn Street on the west to First Street on the east — the proposed area of the restriction. At the time of the hearing defendant lived on Fourth Street, outside the described area, and was unemployed, as she had been at the time of the offense. Accordingly, the State proposed the court consider, within its broad sentencing discretion under section 5 — 6—3 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—3), banning defendant from this area as reasonably related to achieving her rehabilitation and not unduly restrictive of her liberty.

The area described by the State included much of downtown Champaign. Many of the bus lines converged in the area, the Amtrak station was located there, as were the Greyhound and Trailways bus station, the Prairie Center for Substance Abuse, the offices of the News-Gazette, Land of Lincoln Legal Assistance Foundation, the water company, Illinois Bell Telephone, the police station and post office, the unemployment office, Department of Public Aid, Department of Employment Security and Job Service, and Christie Clinic. Counsel argued the area proposed was overbroad and, if a rational relationship between the arrests and a restriction existed, the area could be reduced by as much as two-thirds, stating: “Your Honor, if we used an area bounded by Columbia, Prairie, Church down to State Street over University Avenue then up to the tracks, we would cut out maybe 15 arrests, a small percentage.”

Defendant said she had lived in the downtown area most of her life and had moved from State Street just before she was arrested. Further, she said she did most of her business downtown and used facilities there, including the post office. She objected to imposition of a travel restriction, saying she might want to go to a movie, take her children to dinner, or to the West Side Park, which was located within the area proposed by the State. She observed some circumstances might arise where she would be unable to get permission to go to or through the area, and said she had friends, business associates, and an aunt who stayed in the proposed area.

The court concluded a travel restriction of the nature proposed by the State would maximize defendant’s chance of staying away from prostitution activity and concluded it was a reasonable and necessary condition to assist defendant in avoiding future criminal conduct. The court emphasized there was no evidence as to activities defendant might legitimately engage in in the area. The area delineated by the judge included, essentially, the northern two-thirds of the area proposed by the State.

On appeal, defendant argues the court’s order, “banishing” her from a 50-block area of downtown Champaign as a condition of probation, constituted an abuse of discretion because it violated the statutory requirement of reasonableness (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—3(b) (“reasonable conditions”)) and was unconstitutionally overbroad.

Geographic travel restrictions as a condition of a sentence short of imprisonment have been used by courts in other jurisdictions to achieve rehabilitation and deterrence goals.

Oyoghok v. Municipality of Anchorage (Alaska Ct. App. 1982), 641 P.2d 1267, 28 A.L.R.4th 717, involved a challenge, raised on revocation, to a special condition of probation imposed for soliciting for prostitution. There, the restriction was essentially from a four-block area, which the record established as the primary, if not the only, area of street prostitution in Anchorage. The Oyoghok court rejected arguments similar to those raised by defendant, found no showing that the defendant’s liberty was unduly impinged, and concluded the challenged condition of probation was not unreasonable. In Jones v. State (Alaska Ct. App. 1986), 727 P.2d 6, the court vacated a condition of probation prohibiting defendant from being in 45-block downtown area where there was no clear nexus on record between area and defendant’s drug-related misconduct, as unnecessarily severe and restrictive and not reasonably related to defendant’s rehabilitation.

In State v. Morgan (La. 1980), 389 So. 2d 364, as in Oyoghok, the court upheld a condition of probation directing the defendant to remain out of the French Quarter in New Orleans for the duration of her probation, as against her claim that the condition constituted a “banishment” in violation of the prohibition against cruel and unusual punishment in the eighth amendment of the United States Constitution. The Morgan court found this restriction against entering a relatively small geographical area of the city could not be equated with loss of citizenship. See State v. Collett (1974), 232 Ga. 668, 208 S.E.2d 472 (upholding, as a condition of suspension of sentence, restricting defendant from entering seven specified counties for the period of sentence, 12 months); Wilson v. State (1979), 151 Ga. App. 501, 260 S.E.2d 527 (refusing to disturb sentence, in challenge to condition of suspension of sentence which restricted defendant from the county).

In Markley v. State (Ala. Crim. App. 1987), 507 So. 2d 1043, the court relied on United States v. Lowe (9th Cir. 1981), 654 F.2d 562, as stating the approach to analyzing the validity of probation conditions:

“The test for validity of probation conditions, even where ‘preferred’ rights are affected, is whether they are primarily designed to meet the ends of rehabilitation and protection of the public. [United States v. Consuelo-Gonzalez (9th Cir. 1975), 521 F.2d 259, 265 n.14.]
‘The conditions must be “reasonably related” to the purposes of the Act. Consideration of three factors is required to determine whether a reasonable relationship exists: (1) the purposes sought to be served by probation; (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers; and (3) the legitimate needs of law enforcement.’ [United States v. Pierce (9th Cir. 1977), 561 F.2d 735, 739.]” (Markley, 507 So. 2d at 1051.)

Minnesota courts have taken a similar approach. State v. Friberg (Minn. Ct. App. 1988), 421 N.W.2d 376.

The geographical restriction imposed here is in marked contrast to the restrictions found unreasonable and unconstitutional in People v. Beach (1983), 147 Cal. App. 3d 612, 195 Cal. Rptr. 381, People v. Blakeman (1959), 170 Cal. App. 2d 596, 339 P.2d 202, State ex rel. Halverson v. Young (Minn. 1967), 78 Minn. 381, 154 N.W.2d 699, and In re White (1979), 97 Cal. App. 3d 141, 158 Cal. Rptr. 562.

Blakeman involved a condition of probation that the defendant absent himself from the community, while Young involved a term of probation directing the defendant not to return to the State of Minnesota. These cases are to the effect that it is beyond the power of a court to impose banishment per se as a condition of probation, such that imposition of such a condition is a void and separable part of the judgment of conviction. The condition in White completely prohibited mere presence in a geographical area at all times (White, 97 Cal. App. 3d at 150, 158 Cal. Rptr. at 568), which the court found unreasonable.

White stands in contrast to Oyoghok and Morgan. We find White distinguishable on the facts. The record there showed the condition prohibited defendant from being in any of three mapped areas and was, by its terms, absolute. The condition required the defendant to move her residence (which was in a mapped area), and caused her to stop using city buses.

The legislature permits restrictions on the liberty of probationers. Section 5 — 6—3(b) of the Code provides the trial court “may in addition to other reasonable conditions” require a term of imprisonment, periodic imprisonment, or home confinement. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 6—3(d), (b)(1), (b)(10).) Imprisonment, periodic imprisonment, or home confinement as a condition of probation involves a significantly greater travel restriction than that imposed in the instant case. Probation includes as a condition that the person “not leave the State without *** consent.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 6—3(a)(4).) This section obviously imposes a travel restriction with a proviso.

The trial court is afforded a great deal of discretion in choosing the conditions of probation to be imposed on a particular defendant.

Defendant relies on the “guidelines” set out in Oyoghok and White as demonstrating the travel restriction here should be deemed unreasonable and unconstitutionally overbroad. The condition imposed here is consistent with the guidelines noted in Oyoghok:

“[Ejfforts should be made to define the area of restriction with specificity and to limit the area so that it is not unnecessarily broad. In addition, consideration should be given to the needs of individual probationers, and provision should be made to allow for lawful travel through the area of restriction and for access to the area for legitimate purposes and at reasonable times, when the need for such access exists.” (See Oyoghok, 641 P.2d at 1270 n.4, 28 A.L.R.4th at 722 n.4.)

A court may, as a condition of probation or other sentence short of incarceration, bar a defendant from certain areas if the penalty is reasonably related to the offense, provided that, if the defendant has a legitimate and compelling reason to go to that area or place, he may apply to a specified authority for specific permission, as here to the probation officer.

We find the proviso to the condition imposed, permitting the defendant to obtain specific written permission from her probation officer to enter the restricted area if she had a legitimate reason to go there, removes the taint of banishment from the restriction and substitutes in its stead supervised guidance for permissive entry to the area.

Accordingly, for the reasons herein stated, we affirm the judgment of the circuit court of Champaign County.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL OVERMAN, Defendant-Appellant.
    Fourth District
    No. 4—88—0472
    Opinion filed August 4, 1989.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial, defendant was found guilty but mentally ill on five counts of arson, in violation of section 20 — 1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 20 — 1). The circuit court of Champaign County sentenced defendant to five extended terms of 10 years’ imprisonment, the terms to be served concurrently. Defendant appeals his convictions. We affirm.

On appeal, defendant challenges the validity of the guilty but mentally ill verdict — specifically as it applied to him, and in a general manner. Defendant argues the trial court erred in modifying the appropriate Illinois Pattern Jury Instruction, thereby reducing the burden of proof for a finding of guilty but mentally ill. Defendant also argues the guilty but mentally ill verdict violates his constitutional right to due process of law. The pertinent facts follow.

Defendant does not deny the fact that he set a fire which caused damage to five buildings in Champaign. Defendant was observed in the vicinity of the fire by several individuals. The day after the fire, defendant gave a taped confession to police. Defendant did not try to refute the evidence that he committed the arson.

Defendant, instead, relied on the defense of insanity. On the night of the fire, defendant had stated to police and fire officials that his daughter was in one of the burning buildings. At the time, defendant smelled heavily of alcohol and was described as highly emotional and agitated. Defendant had to be restrained from entering the burning buildings. The assertion about defendant’s daughter proved to be false. Defendant later admitted to police that he had been drinking prior to starting the fire.

Defendant called as his only witness a psychiatrist, Dr. Lawrence Jeckel. At defendant’s request, Dr. Jeckel had been appointed by the court to examine defendant in order to give professional expertise on the question of whether defendant was sane at the time he set the fire. The doctor examined defendant and concluded that defendant was suffering from a mental illness or defect when he set the fire, but that defendant was not legally insane. Dr. Jeckel believed defendant suffered from a borderline personality disorder characterized by traits of unstable and intense personal relationships, unstable moods, and impulsiveness. This manifested itself as pyromania. Also, defendant suffered from heavy alcohol dependence. Despite these mental defects, Dr. Jeckel concluded defendant was able to appreciate the wrongfulness of his conduct and also to conform his conduct to the requirements of the law.

The court and counsel spent a considerable period of time on jury instructions. One of the problems was in arriving at the proper wording for the issues instruction concerning arson. Finding an inconsistency between the burden of proof for a finding of not guilty by reason of insanity and guilty but mentally ill, the court deleted the last two paragraphs of Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.01D (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d (Supp. 1987)). This modification was done with the full agreement of both parties. The result was an instruction which was internally consistent but at odds with section 115 — 4(j) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(j)). Defendant was convicted on five counts of arson.

Defendant first argues that the trial court erred in altering the burden of proof for a finding of guilty but mentally ill. Defendant bases his argument on the holding of People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972. We are compelled to agree that the trial court committed error.

The statutes regarding insanity and mental illness contain an inconsistency concerning the required burdens of proof. Section 6— 2(e) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(e)) places the burden of proof upon the defendant to prove by a preponderance of the evidence that he is not guilty by reason of insanity. However, in order to obtain a verdict of guilty but mentally ill, the State is required to prove beyond a reasonable doubt that defendant was not insane. For a finding of guilty but mentally ill, the State is required to prove three propositions beyond a reasonable doubt: (1) defendant committed the offense; (2) defendant was not legally insane at the time of the commission of the acts; and (3) defendant was mentally ill during the commission of the offenses. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 4(j).) As noted in Fierer, this inconsistency developed as a result of an amendment to section 6 — 2(e), changing the burden of proof as to insanity, without a corresponding amendment to section 115-40). (Fierer, 124 Ill. 2d at 184-85, 529 N.E.2d at 975.) This inconsistency was noted by the trial court in Fierer. The trial court in that case modified the issues instruction to require the State to prove defendant was not insane by a preponderance of the evidence. Both the appellate court and our supreme court found this to be improper. The holding in Fierer is that the courts are to follow the requirements of the statutes in instructing the jury despite the inconsistent burdens of proof. (Fierer, 124 Ill. 2d at 191, 529 N.E.2d at 978.) Any remedy for this situation is to be left to the legislature.

In the instant case, the trial court was faced with the same situation as the trial court in Fierer. At the time, the supreme court had not yet issued its opinion in Fierer. The trial court in this case attempted to circumvent the inconsistency by deleting the final two paragraphs of IPI Criminal 2d No. 24 — 25.01D (Supp. 1987). The result was to reduce the State’s burden for proving defendant sane from beyond a reasonable doubt to a preponderance of the evidence. Because this result is the same as that which occurred in Fierer, the trial court was in error.

The State encourages us to find the matter waived. The instructions used by the court in the instant case were first tendered by the defense. All parties eventually acquiesced in the particular form used. However, the waiver doctrine was rejected by the supreme court in Fierer. The court found the use of improper instructions to be plain error. (Fierer, 124 Ill. 2d at 187, 529 N.E.2d at 976.) Therefore, we must similarly reject the waiver argument.

Despite the presence of the error, we need not reverse the result. The facts in this case make it clear that the error was harmless. In this case, the defense introduced the testimony of Dr. Lawrence Jeckel, a psychiatrist. His testimony was that defendant was mentally ill but not such as to meet the criteria for a finding of insanity. There was, therefore, no expert testimony that defendant was insane at the time the crime was committed. Had the jury been properly instructed in this case, it is clear the result would have been the same. The jury would have found defendant guilty but mentally ill. The supreme court in Fierer rejected a harmless error argument. However, the facts in that case are significantly different than in the instant case. In Fierer, two defense psychiatrists testified that defendant was insane at the time of the commission of the offense. (People v. Fierer (1987), 151 Ill. App. 3d 649, 660-61, 503 N.E.2d 594, 602 (Justice Heiple concurring in part, dissenting in part), aff’d (1988), 124 Ill. 2d 176, 529 N.E.2d 972.) The State also provided testimony from a psychiatrist who gave his opinion that defendant was legally sane when he committed the crime. (Fierer, 124 Ill. 2d at 184, 529 N.E.2d at 974.) In Fierer, the issue of the defendant’s sanity was a close question. In the present case, it is not. We find the error in the instructions harmless, as it relates to defendant’s convictions for arson.

Defendant’s second argument is that the guilty but mentally ill verdict is fundamentally unfair and a violation of his constitutional right to due process of law. We note that similar due process arguments were rejected in Fierer (151 Ill. App. 3d at 653, 503 N.E.2d at 596-97), and United States ex rel. Weismiller v. Lane (7th Cir. 1987), 815 F.2d 1106, 1109-13. We, therefore, decline further review.

For the reasons stated above, the order of the circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH, P.J., and GREEN, J., concur.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DANNY WILLIAMS, Defendant-Appellee.
    Third District
    No. 3—88—0589
    Opinion filed July 27, 1989.
    Rehearing denied August 29, 1989.

      Edward Burmila, State’s Attorney, of Joliet (John X. Breslin and William Gibbs, both of State’s Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Robert Agostinelli and Catherine Fitzsimmons, both of State Appellate Defender’s Office, of Ottawa, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Danny Williams, was charged by information with the offense of unlawful possession of a firearm by a felon in violation of section 24 — 1.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1). The defendant filed a motion to suppress the .32 caliber revolver which was the only evidence against him. The trial court granted his motion and denied the State’s motion for reconsideration. The State filed the required certificate of impairment and brought its appeal to this court. Because of our finding that the defendant lacked standing to seek suppression of the gun, we reverse.

The gun in question was seized from the apartment of defendant’s girlfriend pursuant to a search warrant for defendant, his girlfriend, the apartment, and a car. The defendant was in the apartment at the time of the search, and the gun was found on the floor about two feet from him.

Officer Tim Simenson of the Crest Hill police department asserted in the complaint for search warrant that two reliable informants had told him that defendant lived in an apartment at 29 Mississippi, Joliet, with his girlfriend, Arthena Person. From this information, Simenson’s own surveillance, and reports from other police officers, the court found probable cause for issuing the search warrant. The defendant and his girlfriend were in the apartment at the time the warrant was executed.

The defendant filed a motion to suppress supported by several affidavits from himself, his girlfriend, his mother, and his brothers. The affidavits denied that the defendant lived at the apartment. The affiants, defendant included, asserted that the defendant lived with his mother. The defendant slept overnight at the apartment, at most, once a week, and had no personal effects or clothing at the apartment. The affidavits additionally attacked the credibility of Officer Simenson and the informants. The motion to suppress asserted that the informants lied and that Officer Simenson either lied or acted in reckless disregard of the truth. Defendant sought a hearing under Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, on the truthfulness of the allegations in the complaint for search warrant.

The State filed a response challenging the legal sufficiency of the motion to justify an evidentiary hearing under Franks. The trial court found that a sufficient showing had been made in the affidavits to require a Franks hearing on the veracity of the complaint for search warrant. As a result of that hearing, the trial court found that certain statements in the complaint for search warrant were false or made with a reckless disregard for their truth or falsity. After those statements were eliminated, the court found that there existed insufficient evidence to establish probable cause. Accordingly, evidence seized under the search warrant, including the gun, was suppressed.

The State filed a motion for reconsideration, raising for the first time the issue of defendant’s standing. The trial court ruled the raising of the standing issue untimely and reaffirmed its order of suppression.

We must first decide whether the State’s failure to raise the issue of standing until after the conclusion of the evidentiary hearing constituted waiver of the issue. Generally, a matter not presented, to the trial court cannot be raised for the first time on appeal. One iof the principal purposes of this rule is to prevent surprise to the opposing party, who is denied the opportunity to rebut or to present evidence on the issue. Once the case leaves the trial court, the opportunity to present evidence is gone. People v. McAdrian (1972), 52 Ill. 2d 250; People v. Holloway (1981), 86 Ill. 2d 78.

The question of whether the State waived the issue of standing by waiting until the motion for reconsideration is not discussed in the authorities cited by defendant. McAdrian concerned the State’s raising an issue for the first time in the appellate court. Holloway specifically addressed the raising of standing for the first time in the appellate court where the State was appealing from a suppression order. Likewise, Steagald v. United States (1981), 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642, held that the government waived the issue of standing by failing to raise it in the district (trial) court or the court of appeals. Moreover, in Steagald, the government did not raise the issue in its Supreme Court pleading opposing certiorari. The government argued instead that the house which was searched was defendant’s residence. Standing first was raised in the government’s brief in the Supreme Court. Under those circumstances, “the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner's assertion that he possessed a legitimate expectation of privacy in the searched home.” (Steagald, 451 U.S. at 211, 68 L. Ed. 2d at 45, 101 S. Ct. at 1647.) Standing was clearly waived under such circumstances. Not so in the instant case, however, where standing was raised in the trial court.

We note that Steagald suggests that the opportunity to raise the issue of standing may be lost if the government fails “to raise such questions in a timely fashion during the litigation.” For the reasons which follow, we hold that no waiver occurred and that the standing issue was timely raised.

First, the case was still pending in the trial court when the issue was raised. The trial court retained control of the case and had full authority to modify its order until the filing of the notice of appeal or expiration of 30 days from entry of the order. It has been held that standing would be timely raised if first cited in a motion for reconsideration. People v. Braasch (1984), 122 Ill. App. 3d 747, 750.

Second, defendant had ample opportunity to present evidence relevant to standing. He could have sought to reopen the evidence, or sought leave to present any additional evidence which would tend to establish standing. That he chose not to present additional evidence is undoubtedly a result of his successful attack under Franks on the credibility of the informants who claimed that defendant lived at the apartment. The more successful defendant was in this claim, the less connection he had to the apartment, and the more tenuous his claim of standing to object to a search of the apartment. On the other hand, if defendant had chosen to present evidence to establish standing, he would necessarily support the informants’ statements and attack the credibility of his own affiants who denied his connection to the apartment.

So, third, no prejudice occurred by reason of the State’s failure to raise the issue earlier. Any evidence which defendant would have presented on the issue of standing would have blunted his attack on the veracity of the allegations in the complaint.

Fourth, the State is not required to file a responsive pleading to the Franks motion, and is not required to give any other notice of its intention to assert lack of standing, so long as the issue is properly presented in the trial court. The burden of alleging and proving standing is on the defendant. People v. Graves (1977), 54 Ill. App. 3d 1027.

Having concluded that there was no waiver of the standing issue by the State, we turn to the merits of that issue. We note initially that defendant’s motion to suppress contained no allegations that defendant suffered invasion of some constitutionally protected interest. (People v. Graves (1977), 54 Ill. App. 3d 1027.) Nor did the defendant present any evidence tending to establish invasion of a reasonable expectation of privacy. Indeed, all defendant’s evidence was for the purpose of dissociating himself from the place where the gun was found. His success in this at the pleading stage gave rise to the Franks hearing. His success at the evidentiary state resulted in discrediting two informants who alleged that defendant lived in the apartment which was searched. Defendant convinced the trial court that he did not live at his girlfriend’s apartment, and that he spent, at most, one night a week there. He did not take meals there. He did not keep clothes there. His mailing address was not there. Thus, defendant provided the facts from which followed the conclusion that defendant had no reasonable expectation of privacy in his girlfriend’s apartment. Defendant never asserted, and never attempted to prove, that he had a legitimate expectation of privacy in the apartment. (People v. Gibson (1983), 114 Ill. App. 3d 488.) Our courts have previously rejected arguments that Illinois should, under its own constitutional provisions on search and seizure (Ill. Const. 1970, art. I, §6), maintain the automatic standing doctrine of Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725. People v. Norris (1981), 101 Ill. App. 3d 664.

The proper inquiry is to determine the standing issue which the defendant in this case did not plead or prove, i.e., did the defendant have a reasonable expectation of privacy in the premises searched. (Rakas v. Illinois (1978), 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421.) Where a defendant is charged with a crime based on possession, he has standing to seek suppression of the object he is charged with possessing only if his own fourth amendment rights have been violated. (United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.) Even if defendant could establish the illegality of the search of his girlfriend’s apartment, he has the burden of proving that he had a reasonable expectation of privacy there. (Rawlings v. Kentucky (1980), 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556.) In the instant case, we have noted, the evidence which successfully contradicts the complaint for search warrant also denies defendant’s standing.

We find that the instant case is governed by People v. Stachelek (1986), 145 Ill. App. 3d 391. The Stachelek court held that there was no standing where defendant could not show “a right to exclude others from the apartment, a right to use the apartment in [the owner’s] absence, the possession of a key, the presence of his personal belongings, or anything which might create a legitimate expectation of privacy in the apartment.” Stachelek, 145 Ill. App. 3d at 401.

Merely because the defendant is occasionally on the premises as a guest or invitee, and is on the premises at the time of the allegedly illegal search, does not confer standing. People v. Cohen (1986), 146 Ill. App. 3d 618.

For the foregoing reasons, the judgment of the circuit court of Will County is reversed and the cause remanded.

Reversed and remanded.

BARRY and SCOTT, JJ., concur.