text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James V. Placek, Defendant-Appellant.
    (No. 73-446;
    Second District (1st Division)
    February 11, 1975.

      Marco and Mannina, of Downers Grove, for appellant.
    ' John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Following a bench trial, the defendant was convicted of theft and sentenced to a term of 1 to 3 years in the penitentiary. On appeal, he contends that his constitutional and statutory right to a speedy trial was violated, and that therefore the conviction should be reversed. In the alternative, he asserts that the case should be reversed and remanded for a new trial on the ground that the trial court failed to conduct hearings (1) on the voluntariness of his admissions and (2) on the voluntary nature of his consent to the search of his apartment, and that this constituted error. We disagree and affirm.

The facts relevant to the narrow issues presented for review are somewhat complicated. The defendant, James V. Placek, and a codefendant were arrested on November 26, 1970, for tire theft of four television sets taken from the Willowbrook Holiday Inn Motel. Both were originally indicted for this offense in Indictment No. 70-3389G. It appears that in the pretrial stages under this indictment, the defendant was represented initially by Mr. Cogan, who attempted to negotiate a plea. A substitution of attorneys was allowed, whereupon the defendant was represented by Mr. Lucas. Mr. Lucas filed a motion to suppress certain evidence, and a hearing was held; the motion was denied, and the case was set for trial for November 8, 1971.

On the morning of November 8, 1971, another attorney, Marco, informed the court that Mr. Lucas, the attorney of record, was going to ask leave to withdraw and that the defendant again requested a substitution of attorneys. Mr. Marco requested that the court also grant a continuance to enable him to familiarize himself with the case. The trial judge refused to grant these motions, indicating that they were dilatory in nature and insisted that the case proceed to trial as scheduled. The court informed the defendant of his right to a jury trial, and the defendant executed a jury waiver. It should be noted that Mr. Marco did not enter an appearance as the attorney of record at this time. Mr. Lucas, the attorney of record, then presented a motion for a continuance, which was denied.

After a brief recess, the case was called for trial, at which time the assistant State’s attorney moved to nol-pros the case because of a defect in the indictment regarding ownership of the television sets. At the same time, he informed the court and defense counsel that the State intended to reindict. After the court had granted the State’s motion to nol-pros the case, then and only then did Mr. Lucas, the attorney of record for the defendant, state

“We are ready for trial on this matter, and we have been forced to trial today and we would ask for further than an order of a nolle pros.”

The judge responded that he had “no alternative but to nol-pros on the State’s motion.”

Subsequently, on March 2, 1972, the defendant, James V. Placek, and his codefendant were reindicted, and an arrest warrant was issued. However, the defendant was not arrested pursuant to the warrant until September, 1972. His counsel, Mr. Mannina, filed a motion for a discharge or dismissal on the grounds that the defendant had not been brought to trial within 160 days from November 8, 1971, the date on which the defendant contends he had demanded trial pursuant to section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 5(b)). On March 14, 1973, a hearing on this motion to dismiss was held. The defendant’s position at this hearing was that once the defendant demanded trial, not only must the State reindict within the statutory period, but also the State must bring the case to trial within the statutory period. It is undisputed that the State must, and here did, reindict within the statutory period.

After an analysis of the proposition urged by the defendant, the trial court concluded that the crucial element was whether there was a demand for trial by the defendant. Based on the report of the proceedings of November 8, 1971, the court concluded that there had been, in fact, no valid demand for trial made by the defendant at that time. Consequently, the court.denied the defendant’s motion to dismiss.

Defendant then moved to suppress certain physical evidence, alleging that the defendant’s consent to the search of his automobile was involuntary. The State countered with a motion to strike defendant’s motion to suppress on the ground that there had been a hearing on a motion to suppress the same evidence under the same facts under Indictment No. 70-3389G, which had been subsequently nol-prossed. That hearing had resulted in a denial of defendant’s motion. The State’s position was that in the absence of new or additional evidence, which was not presented at the previous hearing on the motion to suppress, the matter was res judicata. The trial court denied the State’s motion to strike and ordered a hearing on the defendant’s motion to suppress evidence. At this juncture, the court transferred, the case to Judge Woodward, who heard and denied the defendant’s motion to suppress.

The case was to proceed to trial without a jury, but Judge Woodward suggested a substitution of judges since the indicted codefendant of Placek had entered a plea of guilty before him earlier that day. The case was then transferred to Judge Douglas. Defense counsel then renewed his motion to suppress and asked for a rehearing on the motion before Judge Douglas. This motion for a rehearing on the motion to suppress was denied by the trial judge, and the trial commenced.

The State then first called E. L. McQuown, the arresting officer, who testified, inter alia, that upon arrest he advised the defendant of his rights in accordance with the “Miranda warnings,” and that the defendant acknowledged his understanding of those rights. During the course of his testimony, Officer McQuown stated that the defendant had stated in his presence and in the presence of Officer Keyes and Mr. Rimes, the innkeeper, that he and the codefendant had registered at the motel under fictitious names and had taken two other television sets from the motel earlier that evening. At this point, defense counsel objected to the admissibility of defendant’s statements on the grounds that such an admission or confession had been made involuntarily and had been induced by promises of leniency by the police officers and the representative of the motel. Defense counsel then moved for a hearing to determine the voluntariness, of the confession. No motion of this nature had been made prior to trial, as required under section 114 — 11(a), (g) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 11(a), (g)). However, defense counsel asserted that prior to this testimony, he had not been aware of any statements made by his client, and therefore, this was his first opportunity to malee a motion to suppress the confession. The State responded that it had answered the defendant’s motion for discovery, wherein these statements of the defendant had been set forth, and that, having such information, the defense had sufficient opportunity to make this motion prior to trial. The court overruled the objection of defense counsel, did not conduct a hearing to determine the voluntariness of the confession, and admitted the testimony of Officer McQuown into evidence. In order to avoid interrupting the further testimony of Officer McQuown, which disclosed additional incriminating statements of the defendant, defense counsel made a continuing objection to the admissibility of these statements on the basis of his motion to suppress the confession.

At a later point in Officer McQuown’s testimony, the defendant’s handwritten consent granting permission to search his apartment, was read into the record as follows:

“I give my permission to go into my apartment at 3840 Gaslight Square, Alsip, to recover two RCA televisions. I accompanied two Willowbrook police officers to the above address to recover the above evidence. James Placek.”

It should be noted that the motion to suppress did not allege that this written consent to search the defendant’s apartment was illegal. Rather, the motion to suppress addressed itself to the search of the defendant’s automobile at the time of the arrest. Defendant states in his brief that this testimony was objected to by defense counsel, and cites the continuing objection of the defendant in support of this. There was no specific objection made to the admissibility of the written consent statement. It should also be noted that, in making his continuing objection, defense counsel was objecting to testimony regarding admissions and confessions of the defendant.

At the conclusion of all of the evidence (the sufficiency of the evidence is not here challenged, and the evidence is, in a word, overwhelming), the court found the defendant guilty and sentenced him to 1 to 3 years in the penitentiary. This appeal followed.

The first issue presented for our consideration is whether defendant’s right to a speedy trial was violated. It is contended by the defense that the defendant made a valid demand for trial on November 8, 1971, and that the defendant was not brought to trial within 160 days pursuant to section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 5(b)), which states

“Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.”

The basic premise of the defendant’s position that a valid demand for trial was made by the defendant, is that the trial court erred in granting the State’s motion to nol-pros. The defendant contends that the court, in stating it had “no alternative but to nolle pros on the State’s motion,” indicated that the trial judge was not aware of his discretionary power to grant or deny such a motion, and that the trial judge was under a duty to determine if there were valid and sufficient grounds for the motion to nol-pros.

We find the basic premise of defendant’s argument to be without merit. We cannot infer from the trial judge’s statement that he was unaware of his discretionary power to grant or deny the State’s motion. The record discloses that the State presented to the court its grounds for the motion to nol-pros, in that the indictment was defective regarding ownership of the television sets. Thus, the court, in granting the State’s motion, determined that there were sufficient and valid grounds in support of the State’s motion. We note that there is no suggestion that the motion was made to evade the four-term rule, a practice which was condemned in People v. McAdrian (1972), 52 Ill.2d 250, 287 N.E.2d 688. We further note that at no time prior to the granting of the motion did defense counsel interpose an objection to the State’s motion to nol-pros. Thus, we conclude that the court did not err in granting the motion to nol-pros the case under Indictment No. 70-3389G.

Having determined the validity of the court order by which the case was nol-prossed, and considering all of the circumstances surrounding the alleged demand for trial by defendant, we hold that there was no valid demand for trial made by the defendant. The court must consider all the surrounding circumstances in determining whether a demand for trial was asserted. (Barker v. Wingo (1972), 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182.) While we agree with the defendant that there are no “magic words” required, such as “I demand immediate trial,” there must be some affirmative act on the part of the defendant. In the case at bar, the record discloses that both defense attorneys present in court on November 8, 1971, sought to obtain a continuance of the case, which had been set for trial on that day. There is no indication that the defendant demanded trial prior to the State’s motion to nol-pros the case. At most, the defense was reluctant to proceed to trial and was doing so only at the insistence of the trial judge. Indeed, even in asserting the alleged demand, the defense attorney stated, “* * * [W]e have been forced to trial today * * While we acknowledge that the signing of a jury waiver by the defendant was a significant procedural step indicating, at the minimum, an acquiescence to proceed to trial, we must consider all the relevant circumstances surrounding the alleged demand for trial. We conclude that in the factual setting of the case at bar, the defendant did not make a valid, effective demand for trial. Therefore, we find that the defendant’s right to a speedy trial was not violated.

The defendant also asserts that the refusal of the trial court to grant a hearing on the voluntariness of the confession constitutes reversible error. We disagree on the basis of our statute pertaining to “Motion to Suppress Confession,” wherein specifically provides:

“The motion shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. If the motion is made during trial, and the court determines that the motion is not untimely, and the court conducts a hearing on the merits and enters an order suppressing the confession, the court shall terminate the trial with respect to every defendant who was a party to the hearing and who was within the scope of the order of suppression, without further proceedings, unless the State files a written notice that there will be no interlocutory appeal from such order of suppression. * * *” (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 11(g).) (Emphasis added.)

The record discloses that the State’s answer to defendant’s motion for discovery informed defense counsel of the statement made by his client. This answer to discovery was mailed on December 8, 1972, to Attorney Mannina. It cannot now be asserted that at the time of trial on May 2, 1973, defense counsel had no knowledge of his client’s statements. The record clearly establishes that the defense counsel had been informed of the statements made by his client, and, consequently, was aware before trial that grounds for a motion to suppress the confession did exist. Nor was defendant denied the opportunity to present a motion to suppress tire confession before trial. In light of these facts, we hold that the trial court did not err in denying defendant’s motion for a hearing on the voluntariness of the confession or admissions.

It has been held that the due process requirements set forth in Jackson v. Denno (1964), 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774, are met so long as the defendant had a sufficient opportunity to question the confession. (People v. Bryant (1968), 101 Ill.App.2d 314, 243 N.E.2d 354.) The statute, under which the hearing on the motion to suppress the statements of the defendant was denied (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 11) complies with the due process requirements.

The case cited by defense counsel in support of his argument, People v. Jolliff (1964), 31 Ill.2d 462, 202 N.E.2d 506, in which he was counsel, is clearly distinguishable from the case at bar. In Jolliff, the statements of the defendant were not known prior to trial, and defense counsel’s first opportunity to object to the voluntariness of the statements was during the course of the trial. Here, in light of the State’s answer to the defendant’s motion for discovery, the opportunity to motion for a hearing on the voluntariness of the statements existed long before the case went to trial. It was up to the defendant and his counsel to take advantage of the opportunity. People u. Bryant (1968), 101 Ill.App.2d 314, 319, 243 N.E.2d 354.

The final issue presented for review is whether defendant’s constitutional rights against unlawful search and seizure were violated. Defendant argues that a hearing should have been conducted to determine the voluntariness of the written consent granting permission to search his apartment. This written consent executed by the defendant was admitted into evidence without a specific objection by defense counsel. Now, it is argued that counsel’s continuing objection, which was made in reference to the court’s failure to hold a hearing on the voluntariness of defendant’s admissions, encompasses this evidence as well. In our opinion, the continuing objection of defense counsel did not encompass an objection to the legality of the search of defendant’s apartment. Rather, the continuing objection on the record pertained only to admissions and confessions of the defendant. The legality of the search under the consent of the defendant was not objected to by defense counsel. Consequently, the issue of the voluntary nature of defendant’s written consent to the search of his apartment was not preserved for review. We therefore affirm the judgment of the trial court.

Affirmed.

SEIDENFELD, P. J., and GUILD, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HALLETT

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald K. Sly, Defendant-Appellant.
    (No. 73-416;
    Second District — (1st Division)
    February 11, 1975.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Martin P. Moltz, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

This is an appeal from an order revoking the conditional release of the defendant and recommitting him, under the terms of the original commitment, to the Director of Corrections, pursuant to the provisions of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1973, ch. 38, pars. 105 — 1.01 through 105 — 12).

The sole issue here presented is whether, upon such revocation, the court was required to hold a “sentencing hearing” prior to recommitting the defendant to the Director under the terms of the original commitment. We hold that such a hearing is not required and affirm.

On December 5, 1966, the defendant was committed to the custody of the Director of Corrections as a sexually dangerous person by the circuit court of Winnebago County (Ill. Rev. Stat. 1965, ch. 38, par. 105 — 1.01 et seq.). On February 20, 1970, upon petition, the defendant was released by the court for an indeterminate period in accordance with the pertinent provisions of the statute relative thereto (Ill. Rev. Stat. 1969, ch. 38, par. 105 — 10). A petition to revoke this conditional release was filed by the State’s attorney seeldng to recommit the defendant under the terms of his original commitment. At this hearing the defendant was represented by competent counsel with the right of confrontation and cross-examination. The record discloses that the defendant took a minor boy to his apartment, showed him pornographic movies and undid the zipper of the boy’s pants and played with the genitals of the minor. There are no issues concerning whether or not minimum due process standards were complied with at the recommitment hearing. At the conclusion of the hearing, the judge revoked the defendant’s conditional release and ordered him recommitted to the Department of Corrections. The defendant contends that he was “sentenced” pursuant to the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 4—1 and 1005 — 6—4). Specifically, defendant contends that the court is required to hold a sentencing hearing prior to his recommitment. We do not agree.

In People v. Studdard (1972), 51 Ill.2d 190, 281 N.E.2d 678, our supreme court, in interpreting sections 9 and 10 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1969, ch. 38, pars. 105 — 9 and 105— 10), at pages 194-195, said:

“These sections also provide that in the event the person conditionally released violates any of the conditions of such order, ‘the court shall revoke such conditional release and recommit the person under the terms of the original commitment.’”

At no time did the supreme court in that case consider the recommitment order a “sentence.” In holding that a psychiatric examination was not necessary at that stage in the proceedings the court, at page 195, went on to state with regard to a defendant who is alleged to have violated the terms of his conditional release:

“The determination to be made at this stage is whether the person violated any of the conditions of the conditional release order. If it is found that he has violated any condition, then the statute is mandatoiy that the court recommit him under the terms of the original commitment.”

The court further observed, at page 195, that:

“By virtue of this section the person is afforded an opportunity at any stage, including the recommitment stage, to file his application for discharge and has the benefit of any psychiatric or other relevant evidence he may wish to have the court consider.”

We therefore hold, under the express provisions of section 105 — 10 of the Sexually Dangerous Persons Act, and in line with Studdard, that a sentencing hearing is not required prior to the recommitment of an individual as a sexually dangerous person. The order of commitment is merely reinstated and is not a sentence.

Affirmed.

SEIDENFELD, P. J., and GUILD, J., concur.


author: Mr. JUSTICE DIXON

text:
    High Lake Poultry, Inc., Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 73-169;
    Second District (2nd Division)
    February 14, 1975.
    Edward S. Margolis and Julian I. Silvertrust, both of Teller, Levit & Silvertrust, of Chicago, for petitioner.
    William J. Scott, Attorney General, of Chicago (Harvey M. Sheldon, of Northern Regional Environmental Control Division, and George D. Karcazes, Frederic J. Entin, and Meredeth Wright, Assistant Attorneys General, of counsel), for respondents.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is a proceeding to review an order of the Pollution Control Board, commenced in this court pursuant to section 41 of the Environmental Protection Act. (Ill. Rev. Stat. 1973, ch. 111½, § 1041.) A complaint had been filed with the Board against High Lake Poultry, Inc., the petitioner here, by the Environmental Protection Agency. The Agency had charged High Lake with having constructed and operated its waste-treatment facilities without a valid permit, in violation of section 12(b) of the Act (Ill. Rev. Stat. 1971, ch. 111½ § 1012(b)), and with having operated those facilities without employing a certified operator, in violation of rules of the Sanitary Water Board which remained in effect. A hearing took place before a hearing officer designated by the Pollution Control Board. At that hearing High Lake admitted the violations charged but introduced evidence of mitigating circumstances. Thereupon the Pollution Control Board issued an order finding that the violations had occurred as alleged, and assessing penalties of $2,000 for constructing and operating the facilities without a permit and $500 for not having had a certified operator. It is this order which has been brought directly to us by High Lake for judicial review.

It appears from the record that High Lake Poultry, Inc., is a corporation engaged in the business of cutting up, sizing, boxing, and distributing poultry. At the present time it employs approximately 40 persons in its plant plus 8 truck drivers. The business was started as a home occupation in about 1942, but grew until a new building had to be built for it in 1959, near West Chicago, in Du Page County, Illinois. At that time a septic system was used for disposition of the wastes generated, which were primarily washdown wastes from the cleaning of equipment and walls, and not blood, feathers, or viscera from chickens.

The business continued to grow, and in 1985 an addition to High Lake’s processing plant had to be constructed. High Lake applied to the Du Page County Building Department for a building permit, but was required to construct a sewage-disposal system prior to issuance of the permit. Tins was done. The new system treated the wastes in a sewage-treatment plan, from which the fluid passed into a pond for further treatment, and from therein to Kress Creek, a tributary of the Du Page River.

It developed that the sewage-disposal system did not work properly. Tests taken by the Sanitary Water Board showed an extremely high biochemical oxygen demand (B.Q.D.). To correct this, High Lake employed an engineer to prepare plans for a new sewage-treatment system, which were submitted to the Sanitary Water Board for approval. On October 8, 1969, the Sanitary Water Board issued a permit authorizing construction of the new facilities in accordance with those plans, which was to be valid for a period of 1 year.

By this time High Lake had plans for another addition to its plant, which was to be a welfare facility for its employees, consisting of larger lunchrooms, locker rooms, and washrooms. The Du Page County Budding Department refused to issue a permit for this new addition, however, unless a cash bond of $10,000 were posted to guarantee that the proposed sewage-treatment facilities would reduce the B.O.D. to meet the Sanitary Water Board’s limits. There was no certainty that the proposed facilities would do this, though the Sanitary Water Board had issued a permit in the expectation that the proposed new system would operate in accordance with its requirements. Therefore in the summer of 1970, with the encouragement of the Environmental Protection Agency, High Lake began negotiations with the city of West Chicago for the purpose of annexing and connecting into that city’s sewage-treatment facilities. Efforts in this direction were brought to an end when the Agency notified High Lake on April 30, 1971, that West Chicago was having its own sewage-treatment problem.

Meanwhile, on April 9, 1971, High Lake received a memorandum from the Illinois Department of Agriculture, notifying High Lake that its welfare facilities were not large enough to meet the Department of Agriculture’s requirements. The proposed new addition to the plant would have satisfied those requirements, but the DuPage County Building Department was still withholding issuance of a permit until it received a cash bond of $10,000 which might very possibly be forfeited, and High Lake’s annexation efforts were going slowly. The Department of Agriculture demanded that High Lake commence construction of its proposed new welfare facility by June 15, 1971. If High Lake did not do so, its license to do business was to be revoked. Therefore, early in May of 1971, High Lake filed a new application with the Environmental Protection Agency for a permit to upgrade and expand its sewage-treatment facilities, resubmitting the plans which in 1969 had been approved by the Sanitary Water Beard. Then on May 20, 1971, it was able to obtain the Du Page County Building Department’s approval of its plans for the welfare facility, with the stipulation that occupancy would be denied until such time as the sewage-treatment improvements were under construction.

When High Lake filed its application for a new permit, its problems with the Department of Agriculture and its need for prompt issuance of a permit were explained to the person on the Environmental Protection Agency staff who appeared to be in charge of the issuance of permits. His response was that he had a number of other permit applications to review before High Lake’s, that he took them in order as they came in, and that it would be quite some time before he would be able to get to High Lake’s application. This person was subsequently issued a subpoena for appearance at the hearing before the Pollution Control Board’s hearing officer, but failed to appear before the hearing officer or to offer an excuse for his absence. After submission of the plans, calls were made by High Lake once or twice a week to learn whether review of its plans had been begun, and finally, when it was obvious that a permit would not be issued by the Agency before the Department of Agriculture’s June 15 deadline for beginning work on the welfare facility, High Lake began construction of its proposed sewage-treatment improvements without a permit, in accordance with the plans which had previously been submitted to and approved by the Sanitary Water Board in 1969.

On June 11, 1971, High Lake was visited by an inspector from the Environmental Protection Agency, who notified High Lake that it was in violation of the Act because of its having commenced construction without a permit. By letter dated July 28, 1971, High Lake was informed that its application for a permit was denied. Action had to be taken within 90 days of the filing of High Lake’s application in early May, or a permit would have been deemed issued, under section 39(a) of the Act. (Ill. Rev. Stat. 1973, ch. 111½, § 1039(a).) Printed at the bottom of the letter was this additional information: “In the New Illinois, we accomodate!” [sic]

Subsequently High Lake attempted through correspondence and telephone calls to determine what the Environmental Protection Agency wanted done, and filed another permit application with plans revised to meet the Agency’s current requirements. By the time of the hearing on the complaint the Agency had meanwhile filed against it, not much work remained for High Lake to do. Furthermore, by the time of the hearing High Lake had a certified operator for its waste-treatment facilities. This was the general contractor who had constructed and supervised the operation of the facilities but had not earlier been employed by High Lake in the capacity of registered engineer.

The issue before us is whether the fines imposed on High Lake for the admitted violations are justified in the circumstances presented by the record. It appears to us that if the Environmental Protection Agency employee officially responsible for issuing permits had considered High Lake’s application ahead of the many others filed before it, making allowance for the extraordinary pressures on High Lake at the time, he might have completed his review and given High Lake its permit, with such conditions imposed as he deemed necessary, before High Lake came to decide it had to proceed without a permit. It appears to us, further, that if a variance from the requirement of a permit should have been sought, as the Agency now argues, High Lake should have been so advised, although it is not evident to us why a variance might have been expected any sooner than a permit, the legislature having allowed 90 days for action on variance requests also. (Ill. Rev. Stat. 1973, ch. 111½, § 1038.) It appears, further, that in this case a relatively small business was being put to considerable trouble and expense, was frying to cooperate with the various governmental bodies which seemed to be aligned against it, and was ultimately penalized for being too early rather than too late in making improvements to its sewage-treatment system, on the instigation of an agency responsible in some measure for the company’s predicament.

It is established that the principal reason for authorizing the imposition of civil penalties was to provide a method to aid the enforcement of the Act, and punitive considerations were secondary. (City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 490; Lonza, Inc. v. Pollution Control Board, 21 Ill.App.3d 468, 470.) Where cooperation has been shown, compliance with the Act has already come about, and the imposition of a civil penalty would in no way aid the enforcement of the Act, it has been held that a fine is improper. (Bresler Ice Cream Co. v. Pollution Control Board, 21 Ill.App.3d 560; Chicago Magnesium Casting Co. v. Pollution Control Board, 22 Ill.App.3d 489, 317 N.E.2d 689, 693-94; CPC International, Inc. v. Pollution Control Board, 24 Ill.App.3d 203, 321 N.E.2d 58, 61.) Since the Agency may be considered to have contributed in some degree to the situation which caused High Lake to build without a license, and High Lake has shown its willingness to cooperate, is now in substantial compliance with all of the Agency’s requirements, and has doubtless incurred sizeable legal expenses also, we have concluded that fines should not have been imposed by the Board in this case. Accordingly, that part of the Board’s order finding violations to have occurred is affirmed but that part of its order assessing penalties is vacated.

Affirmed in part and vacated in part.

RECHENMACHER, P. J., and T. MORAN, J., concur.


author: Mr. JUSTICE MATHERS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Strawder, a/k/a Levi Kensey, a/k/a Slim, Defendant-Appellant.
    (No. 73-85;
    Second District
    January 28, 1975.

      Modified opinion upon denial of rehearing filed March 12, 1975.

      Ralph Ruebner and Richard Wilson, of State Appellate Defenders Office, of Elgin, for appellant.
    Gerry Dondanville, State’s Attorney, of Geneva (Clarence F. Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE MATHERS

delivered the opinion of the court:

This is an appeal from the judgment of the Circuit Court of Kane County denying motions for a new trial and for a verdict of acquittal, notwithstanding the jury’s verdict of guilty. The trial .cóurt imposed concurrent penitentiary terms of 3 to 20 years on the charges of attempted murder, and 1 to 14 years on the charge of attempted armed robbery by the appellant, Anthony Strawder, known also as Levi Kensey, or Slim.

The record reveals that various witnesses for the state testified that early on the afternoon of February 22, 1972, two black men entered a small grocery store of Charles and Josephine Gebelt in Elgin, Illinois. The testimony of Mr. and Mrs. Gebelt and other occurrence witnesses establishes that after the men entered the' store, one man asked Mr. Gebelt if he had any chicken wings. After being informed that there were none, he remained in the store, together with the taller man who stood in a comer of the store looking out the window for approximately 10 minutes. Shortly after the shorter man had approached and walked past the checkout counter where Mrs. Gebelt had just checked out'two customers, including Mrs. Carol Doyle, the taller man turned around •and walked toward her. He stepped over to the checkout counter, and when Mrs. Gebelt looked up from a distance of about 5 or 6 feet, he was pointing a gun at her. He told her to, “Open the cash register.” When she did not understand his instruction, she asked, “What?” The gun was fired, and she was shot. The bullet entered her left face .between the jaws so that her dentures were broken, and pieces of the bullet lodged in her palate.

When Mrs. Gebelt first turned and looked at the taller man, the gun was pointed at her chest. During the conversation it then moved up to her face and was pointed directly at her when the shot occurred.

Mr. Gebelt heard the shot and ran to the front of the store, where he saw his wife holding her mouth and bleeding from the face. He ran out the door and saw two black men running down the street. He then returned to the store and called the police. One or both of the men got into a car parked at the curb in which another person was sitting, and they drove away.

On May 2, 1972, Mrs. Gebelt went to a lineup at the Geneva County Jail. The lineup was composed of six black men of average height. She identified one of the men as the tall one who had entered the store and had shot her. At the trial she pointed out the appellant as being the same person. Carol Doyle also identified the defendant at the trial.

The defense offered two alibi witnesses, the brother of the accused and his wife, both of whom testified that the defendant was at their home in Chicago, in bed with the flu, on the day of the crime. They also offered one occurrence witness, who was unable to say that the defendant was the man involved in the shooting, or that he was not. Also testifying was Roy Lasswell, a public defender, who was present at the lineup when Mrs. Gebelt identified the defendant. The accused did not take the stand.

On appeal, the defendant has urged that the trial court lacked jurisdiction, because the defendant had not waived his right to be indicted, that defendant was not proven guilty beyond a reasonable doubt, that prejudicial error was committed when inadmissible evidence of defendant’s prior criminal record was brought out by the state, and that the trial court erroneously imposed concurrent sentences for crimes arising out of the same conduct. In the alternative, appellate requests that in lieu of vacating the sentence for attempted armed robbery, the sentence should be reduced to the penalty for a Class 4 felony.

Supreme Court Rule 401(b)(3) provides that the judge shall personally address the defendant, inform him and determine that he understands “that he can be prosecuted for the offense only after indictment by a Grand Jury unless he waives indictment.”

The record clearly shows that Mr. Strawder was asked by the court if he understood he had a right to be indicted by the grand jury, and he replied, “Yes.” The court then said, “You are waiving your right to be indicted by the Grand Jury and asking those charges be brought by Information, is that correct?”. Mr. Strawder did not respond to this personally, but his defense counsel said, “I have explained that to him, Your Honor, about his indictment and he waives that right.”

Appellant maintains that this waiver is defective because he did not respond personally. Cases cited by appellant do not support this contention. In People v. Culbert, 69 Ill.App.2d 162 (1966), the defendant was not represented by an attorney. When the judge asked him about waiver he said, “It is up to you.” The court then said, “Well, it is not up to me, it is up to you, if you want to waive, I will accept your waiver.” The defendant then said, “Well, that will be all right.” In our case, the appellant was represented by counsel, and the explanation and response were much more positive by both the defendant and his counsel.

In People v. Cimino, 45 Ill.2d 556, 560 (1970), the appellant’s conviction was affirmed when the review court stated the accepted principle of law that, “[t]he general rule is that the failure of a defendant to make his appropriate motion in the trial court, thus not preserving the question for review, is deemed to be a waiver of the question.” In the instant case, no such motion was made by the appellant.

The state cites the case of United States «. Pate, 430 F.2d 639, 641 (7th Cir. 1970), where the court said, “While a defendant may waive Grand Jury indictment under Illinois Revised Statutes, Chapter 38, Section 111 — 2, failure to make such a waiver does not affect the fairness of the trial.”

In People v. Sailor, 43 Ill.2d 256, 260 (1969), the court said, “An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial, is deemed to have acquiesced in, and to be bound by, his actions.”

1 Since defendant clearly stated that he understood that he had a right to indictment, and acquiesced in his counsel’s statement of waiver, proceeded to trial on the information without objection, and at no time in the trial eourt contended that he had not waived indictment, and the fairness of his trial was not affected, we do not consider that the strict compliance with Supreme Court Rule 401(b)(3), which defendant now urges, was required under the circumstances here present.

Was the defendant proven guilty beyond a reasonable doubt? This question appears to be closely associated with identification of the accused. Four occurrence witnesses testified for the State. One occurrence witness and two alibi witnesses appeared for the defendant. Thus it appears there is a direct conflict in the testimony between the alibi witnesses and the two state witnesses. Mrs. Gebelt, who was shot at close range in the face, made a positive identification of the accused, both at tire trial and the police lineup. Carol Doyle, a customer who was visiting with Mrs. Gebelt for about 10 minutes before the incident, identified “the tall and thin one” as the one with the shiny shoes who was standing some 6 to 8 feet away from her in the store. Soon after her departure from the store, she saw the same man running from the entrance to the store and down an alley.

Appellant contends that the two alibi witnesses that place him in Chicago on the 22nd day of February, on the day of the offense, were not controverted. Julia Conegie, sister-in-law of the defendant, testified that she was home all day and that the defendant, who resided with them for several months, did not leave the house on the 22nd day of February, 1972. Her husband, who was defendant’s brother, Eddy Conegie, testified that he saw defendant there at 8:30 on the morning in question and that he was still there when he returned about 4:25 in the afternoon.

Testimony of alibi witnesses is not to be disregarded, but the strength and credibility of the alibi witnesses must always be weighed against the strength and weight of contradictory evidence that is offered by the state. The determination of the credibility in a jury trial must be determined by the jury, who have ample opportunity to observe all the parties who testify, their demeanor on the stand, responses to the questions, and then to weigh the testimony.

The State cites several cases where conviction has been affirmed where identification was made only by the victim. (People v. Woods, 26 Ill.2d 582 (1963); People v. Novotny, 41 Ill.2d 401 (1968).) The defendant cites only one case, People v. Gooden, 403 Ill. 455 (1949), where the alibi evidence was quite different from the instant case. A doctor testified that he had treated the accused 8 or 10 times at the home of his mother during the month of March, when it was alleged that he committed the ciime. His mother testified he was in bed on the day of the crime and it was corroborated by his stepfather and by two other good friends who stopped by to see him while he was sick.

In People v. Shields, 9 Ill.App.3d 682, 685 (1973), the court said, “The law is well settled that even the uncorroborated identification of a defendant by a single witness, including the complaining witness, is sufficient to* convict if the testimony is positive and the witness credible although contradicted by the accused.”

In most cases where an alibi is interposed, the trier of the facts or the jury must weigh the credibility of various witnesses and resolve any conflicts in their testimony. The jury in the present case resolved any conflicts in the evidence against the accused and reviewing courts will not substitute their judgment for that of the trier of the facts (People v. Lobb, 17 Ill.2d 287 (1959)) unless the imbalance is quite obvious. Such a disparity does not appear in our case.

Was prejudicial error committed by the state in introducing evidence of defendant’s prior criminal record?

During the trial a police officer testified he had known appellant for about 5 years and that he had known him by the names of Anthony Strawder, Levi Kensey, Slim and Marion Hall. At another point appellant’s brother, while being cross-examined, was asked by the State’s attorney when he had first learned about the charges that were brought against the defendant. Mr. Conegie, the witness, said that he learned for the first time about tire present charges when they “[h]ad him for the $350.00 check thing.”

Then the following colloquy took place between the prosecutor and the appellant’s brother:

“Q. [By Mr. Dondanville] What was that?
A. [By Mr. Conegie] Time they had him for a check which was the first time I came to court on.
Q. When was that?
A. I can’t recall.
Q. You don’t know when?
A. That was the first time when they picked him up, I came to his trial, it was down here in Geneva.
Q. Do you know when he was charged with this crime of attempt murder and attempt armed robbery?
A. No I don’t. I know I talked to my sister, she said — she told me about the check but I don’t know anything about tire armed robbery until about a week after that.”

Appellant states that both of these incidents violate the principal rule of evidence, that evidence of a prior criminal offense can only be elicited by bringing in the record of prior convictions.

It should be pointed out that defendant did not object to this testimony but did move for a mistrial at the conclusion of the State’s case.

Appellant cites several cases which we do not find in point since they each indicated repeated questioning directly about defendant’s criminal record. In People v. Galloway, 28 Ill.2d 355, 361 (1963), the court rejected an appeal by defendant where a police officer was questioned about defendant’s criminal record and the answer was, “I’d have to look in the records, that was a long time ago.” Again in People v. Thomas, 132 Ill.App.2d 198, 201 (1971), in affirming a conviction for forgery, the court stated that “[t]he general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission.”

It would appear, therefore, in the instant case, that the State did not attempt to bring in evidence of his criminal record, but merely that the police officer had known the defendant for 5 years under different names. This information might lead one to suspect the prior behavior of the individual, but it does not allege or even raise questions about a prior criminal record.

The defendant herein also raises a question as to whether the trial court committed error in imposing concurrent sentences for the two crimes that are involved. Appellant cites People v. Lerch, 52 Ill.2d 78 (1972), as authority for the proposition that where the defendant is charged with multiple offenses, that the sentence for the less serious crime should be vacated. In that particular case the court so held, where an attempted escape and aggravated battery were the multiple offenses. Appellant maintains that section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a)) has adopted the language of the Lerch case, but it must be observed that the section in question says, “The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” The State points out that the facts in our case are different from the Lerch case in that where attempted murder and attempted armed robbery have been charged, that the Illinois courts have held, that they are two separate and distinct offenses.

This distinction was made as late as 1970 but in People v. Stewart, 45 Ill.2d 310 (1970), our supreme court held that where two crimes of aggravated battery and attempted robbery arose from the same course of conduct, that only a single sentence could be imposed for the greater of the two offenses.

In People v. Hickman, 3 Ill.App.3d 919 (1971), the Appellate Court of the Second District once again adopted the old rationale between acts of attempted robbery and attempted murder. This decision was reversed, however, by our supreme court in People v. Hickman, 56 Ill.2d 175 (1974). See also People v. Prim, 53 Ill.2d 62 (1972).

The facts in the Hickman case and the Prim case are very similar to ours and nothing appears in our case to indicate a “separate, independent motivation” for the two offenses charged. We must hold, therefore, that a concurrent sentence for attempted aimed robbery could not be imposed in conjunction with a sentence for attempted murder.

Accordingly, the judgment of the Circuit Court sentencing the defendant for attempted murder is affirmed. Its judgment pertaining to the conviction and sentence for attempted armed robbery is reversed.

Affirmed in part and reversed in part.

CREBS and EBERSPACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard J. Stewart, Defendant-Appellant.
    (No. 74-75;
    Second District (1st Division)
    February 18, 1975.
    Ralph Ruebner and Phyllis J. Perko, both of State Appellate Defender’s .Office, of Elgin, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel)., for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

On April 24, 1972, defendant entered a plea of guilty to the offense of theft in excess of $150 (Ill. Rev. Stat., 1971, ch. 38, par. 16 — 1). He was thereafter admitted to a probationary term of 24 months on May 31, 1972, which required that he spend the first four consecutive weekends in the County Jail. On January 24, 1973, defendant entered a plea of guilty to forgery (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3) committed during the probationary term, and was convicted.

This appeal is from an order issued by the court on June 24, 1973, revoking defendant’s probation on the basis of said forgery conviction and sentencing him to a term of from 2 to 6 years. Defendant raises two issues on appeal. First, he contends that we ought to reverse the order revoking his probation and remand the cause for a rehearing because the trial court failed to comply substantially with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402) prior to accepting his stipulation to the forgery conviction. Second, he maintains that we ought to remand the case and direct the trial court to credit him on the 2- to 6-year sentence with time he served successfully while on probation (“street time”). The State has confessed error respecting this latter contention; therefore, there is no need to discuss it further, and we accordingly remand the cause and direct the court so to credit the defendant. For reasons which follow, however, we disagree with defendant’s first contention and affirm the lower court’s revocation of his probation.

Our Supreme Court has recently held that the requirements of Supreme Court Rule 402 are not applicable to probation revocation proceedings since they were formulated to “secure proper entry of guilty pleas” at trial (People v. Beard (1974), 59 Ill.2d 220, 226, 319 N.E.2d 745). There was only one issue of fact in Beard and that was whether defendant had failed to report to his probation officer in violation of the terms of his probation. Defendant there stipulated that he had failed to report because he was in Federal detention at the time, which subsequently had resulted in his conviction for another crime committed during the probationary term. The court held that the stipulation did not violate defendant’s right to due process of law. The conviction was, after all, a matter of public record, and defendant’s stipulation merely eliminated the perfunctory necessity of proof required of the State’s attorney. In the instant case, there was no issue of fact. The petition for revocation of probation alleged that defendant had committed and had been convicted of a crime during, and in violation of, probation. The State then submitted a certified copy of the conviction. Defendant was neither called upon to admit nor to deny anything. As was the case in Beard, there clearly was no need here for the various admonishments of Supreme Court Rule 402. Defendant was afforded due process of law.

The order of the lower court revoking defendant’s probation is affirmed, but the cause is remanded for the limited purpose of crediting defendant’s sentence with time served successfully while on probation.

Affirmed and remanded with directions.

SEIDENFELD, P. J., and GUILD, J., concur.


text:
    Elizabeth Dean et al., Plaintiffs-Appellees, v. Keith’s and Ralph’s Tavern, Inc., Defendant-Appellant.—(Robert Weems, Defendant.)
    (No. 73-387;

    Second District (1st Division)
    February 18, 1975.
    O’Brien, Burnell, Puckett & Barnett, of Aurora (Peter K. Wilson, Jr., of counsel), for appellant.
    Tyler, Peskind & Solomon, of Aurora, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

This is an appeal from an order denying defendant Keith’s and Ralph’s Tavern’s post-trial motion for judgment notwithstanding the verdict and/or new trial and from the judgment entered on the jury’s verdict (1) awarding plaintiff, Elizabeth Dean, and her two children damages of $10,000, and (2) awarding plaintiff, Johnny Dean, damages of $15,000. Defendant contends that the trial court erred when it denied the post-trial motion and asks that we either reverse and remand the cause for a new trial or that we reverse and remand the cause with directions that the trial court enter judgment notwithstanding the verdict. We decline to do either and affirm.

The facts are not disputed. Plaintiff, Johnny Dean, was shot by defendant, Russell Weems, outside the defendant’s tavern. Weems had been drinking there. Johnny Dean and his spouse (now divorced) Elizabeth, on behalf of their two children, brought suit below against the defendants for personal injuries and loss of her and the childrens means of support. Keith’s and Ralph’s Tavern, Inc., was sued under the Illinois dramshop act (Ill. Rev. Stat., 1971, ch. 43, par. 135). Following the close of all evidence, the trial court held a conference on jury instructions. The following plaintiff’s instructions, among others, were given to the jury: First, respecting Elizabeth Dean’s claim for loss of her and the children’s means of support:

“If you decide for the plaintiffs on the question of liability, you must then fix the total amount of money which will reasonably and fairly compensate the person you find has suffered loss to their means of support, for such loss.
The phrase, means of support’, includes the necessities of life, and comforts as well. Whatever lessens or impairs the ability to supply suitable comforts which might reasonably be expected from the person who furnished support, considering his occupation and capacity for earning money, may be regarded as lessening or impairing the means of support’ referred to in these instructions.”

Second, respecting Johnny Dean’s claim for injuries:

“If you decide for the plaintiff, Johnny Dean, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have been caused by the intoxicated person: the nature, extent and damage of the injury. The disability resulting from the injury. The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries. The reasonable expense of necessary medical care, treatment and services received. The value of eamings lost and the present cash value of the earnings reasonably certain to be lost in the future.
Whether any of these elements of damage has been proved by the evidence is for you to determine.”

The jury returned a verdict in favor of the plaintiffs and awarded damages of $15,000 to Johnny Dean and $10,000 to Elizabeth Dean and the two children.

The bone of contention concerns the jury’s award of damages. Defendant contends that the jury awarded double damages. In support of this contention, it cites tire above jury instructions and points out that the “means of support” instruction, pertaining to the wife and children’s award, includes the earnings of the husband as one of its elements, while the instruction pertaining to the husband’s award includes his loss of income (present and future) as one of its elements. Defendant argues that, in effect, the jury was misled into awarding compensation to the husband for his loss of income and awarding the same amount again as compensation to the wife and children for loss of their means of support, and cites the well-known principle that plaintiffs are only entitled to a single award.

Defendant, however, neglected to advance this objection to the instructions at the conference on jury instructions. Defendant did object to the instruction concerning Johnny Deans award; however, the objection was grounded on defendant’s contention that there was no evidence to warrant giving that instruction. Defendant never objected to the instruction on the ground that it was likely to mislead the jury into awarding double damages until defendant asserted in its post-trial motion that the jury had been so misled.

The rule in Illinois is that objections to instructions offered by an opposing party must be made at the conference on instructions and must be specific or they are waived on appeal (Russo v. Kellogg (1962), 37 Ill.App.2d 336, 341-342, 185 N.E.2d 377; Taylor v. Elgin, J. & E. Ry. Co. (1961), 33 Ill.App.2d 64, 77, 178 N.E.2d 704; Thompson v. Chicago & E. I. Ry. Co. (1961), 32 Ill.App.2d 397, 401, 178 N.E.2d 151; Greenlee v. John G. Shedd Aquarium (1961), 31 Ill.App.2d 402, 411, 176 N.E.2d 684). Further, the failure to object specifically at the conference cannot be cured by making the proper objection for the first time in the post-trial motion (Russo v. Kellogg (1962), 37 Ill.App.2d 336, 342, 185 N.E.2d 377; Jackson v. Gordon (1962), 37 Ill.App.2d 41, 184 N.E.2d 805) because the trial court would otherwise be deprived of an opportunity to correct the defective instruction, and the party failing to object would thereby gain the advantage of obtaining a reversal based upon his own failure to act. Onderisin v. Elgin, J. & E. Ry. Co. (1959), 20 Ill.App.2d 73, 77-78, 155 N.E.2d 338.

In the instant case, defendant failed to urge the proper objection at the conference on instructions, and we hold that the objection was waived.

The judgment is affirmed.

Affirmed.

SEIDENFELD, P. J., and GUILD, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph H. Fitzgerald, Defendant-Appellant.
    (No. 74-86;
    Second District (1st Division)
    February 18, 1975.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence F. Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

On September 27, 1971, defendant was charged by information with the offenses of burglary (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1) and theft in excess of $150 (Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1). He was arraigned on the same day and waived indictment and preliminary hearing. On October 22, 1971, pursuant to plea-bargain negotiations, defendant pleaded guilty to theft of less than $150 (Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1). He was then placed on probation for a period of 24 months. During the probationary term, he was convicted of burglary and sentenced to a term of from 1 to 5 years in the Illinois State Penitentiary. The State then filed a petition to revoke defendant’s probation.

This appeal is from an order issued by the court on April 3, 1973, revoking defendant’s probation and senténcing him to a period of 120 days to run consecutively to the 1- to 5-year sentence. Defendant first contends that the trial court lacked jurisdiction to revoke his probation because his initial plea of guilty for theft, for which he had been placed on probation, was entered subsequent to his invalid waiver of indictment, in that the court at that time had failed substantially to comply with the requirements of Supreme Court Rule 401(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 401(b)). Second, he contends that the trial court erred in that it failed to credit him on the 120-day sentence with time served successfully on probation (“street time”). We conclude that we have no jurisdiction to pass on the first contention and agree with the second. We therefore affirm the order revoking probation and direct the Rial court, on remand, to enter an order crediting defendant with time served successfully on probation.

Defendant’s first contention is that the trial court lacked jurisdiction to revoke his probation because the court which originally convicted him and placed him on probation did so following his alleged invalid waiver of indictment and preliminary hearing. We are without jurisdiction to consider this contention because defendant never filed notice of appeal from the order of the court convicting him and placing him on probation.

The rule in Illinois is that a defendant has 30 days in which to file notice of appeal from a final judgment or from the court’s ruling on his application for probation (Ill. Rev. Stat. 1971, ch. 110A, par. 606(b)). An additional 6-month period is granted provided that defendant can show reasonable cause for having delayed beyond 30 days (Ill. Rev. Stat. 1971, ch. 110A, par. 606(c)). Thus, the time period in which to file notice of appeal has passed. Also, where there has been no appeal from a judgment of conviction and order of probation, such cannot be reviewed on appeal from an order revoking probation (People v. Coleman (1973), 13 Ill.App.3d 252, 301 N.E.2d 59; People v. Godsey (1974), 22 Ill.App.3d 382, 317 N.E.2d 157). Thus, we are without jurisdiction to consider defendant’s first contention.

Defendant’s second contention is that he should have been credited with time served successfully on probation. We agree. His probation was revoked on February 15, 1973. At that time section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6— 4(h)) provided in part,

“Time served on probation or conditional discharge shall be credited by the court against a sentence * * * or periodic imprisonment.” (Emphasis ours.)

In our view the statute imposed an obligation upon the trial court to so credit the defendant.

We reject the State’s two contentions — that defendant waived the sentencing advantage by failing to affirmatively request it and that, since defendant’s case has not reached a stage of final adjudication because the last direct appeal has not yet been decided (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4; People v. Chupich (1973), 53 Ill.2d 572, 581-582, 295 N.E.2d 1), we should uphold the trial court because current law (since July 1, 1974, or over a year after the order revoking probation arid imposing sentence) leaves the sentencing credit to the court’s discretion. Insofar as the first contention is concerned, the legislature plainly directed the judiciary to credit defendants with time served successfully while on probation. There is no room here for judicial interpretation of the sort recommended by the State. We are bound by the plain meaning of the statute. Therefore, defendant was entitled to be credited whether or not he specifically requested the credit.

The State’s second contention is also without merit. The purpose of section 8 — 2—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4) is to allow defendants in criminal cases to avail themselves of the sentencing benefits of the Code provided their cases have not reached a stage of final adjudication on the date that the Code was adopted (emphasis ours). Where the sentencing provision provides no benefit but rather provides a detriment, the provision does not apply (see People v. Brooks (1973), 13 Ill.App.3d 1003, 1008, 301 N.E.2d 496).

We affirm the revocation of defendant’s probation but remand the cause to the trial court with directions that it credit defendant with time served successfully while on probation.

Affirmed and.remanded with directions.

SEIDENFELD, P. J., and GUILD, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred H. Johnson, Defendant-Appellant.
    (No. 12491;
    Fourth District
    November 21, 1974.

      Rehearing denied March 17, 1975.

      Richard J. Wilson and Thomas Nelson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (Kai A. Wallis, of Statewide Appellate Service, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Fred H. Johnson, appeals from convictions for the offenses of theft under $150 and burglary and from a sentence imposed of 3 to 9 years imprisonment. Defendant raises the following issues for resolution by this court: (1) Whether both offenses arise from the same conduct or transaction, and (2) Whether defendant’s sentence is excessive.

On July 16, 1973, defendant was indicted for burglary and theft. A jury trial was held on October 23, 1973, The evidence adduced at the trial established that defendant entered a Georgetown, Illinois, residence and stele various items from said residence. The jury returned verdicts finding defendant guilty of the burglary and the theft. The trial court proceeded to enter judgments of conviction on both verdicts. On November 7, 1973, a sentencing hearing was held, and defendant received a 3- to 9-year term of imprisonment, sentence being imposed on only the burglary judgment.

Defendant contends and the State concedes that defendant’s conviction for theft, under $150 should be reversed. Although the trial court properly imposed only one sentence, he erred in entering judgments upon both jury verdicts. Both offenses here clearly arose from the same conduct or transaction and were not independently motivated. (See People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Long, 12 Ill.App.3d 974, 298 N.E.2d 784.) The conviction then for the lesser crime, here theft under $150, should be reversed since the conviction for the greater crime of burglary is valid. See People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651.

Defendant also contends that the sentence imposed of 3 to 9 years imprisonment for the burglary is excessive. We do not agree. It is well established that our power to modify sentences should be used with caution, and that the sentence imposed by the trial court will ordinarily not be disturbed on appeal. The trial judge who presides over the trial and hears the evidence in aggravation and mitigation is clearly in a better position to make a sound determination in regard to sentencing than is tins court. (People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706; People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) We note that the sentence imposed here is within statutory limits. We further note that this was the fifth burglary conviction for this 33-year-old defendant within the last 14 years, and that defendant was on parole when the present offense was committed. The trial court clearly did not abuse its discretion in imposing sentence.

Accordingly, for the reasons stated above the judgment of conviction upon the charge of theft under $150 is hereby reversed. The judgment and sentence imposed for the offense of burglary are hereby affirmed, and the cause is remanded to the circuit court of Vermilion county for issuance of an amended mittimus.

Affirmed in part, reversed in part, and remanded with directions.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE CARTER

text:
    Connie Simmons Heady, Plaintiff-Appellant, v. James B. Simmons, Defendant-Appellee.
    (No. 74-55;
    Fifth District
    February 19, 1975.

      Robert L. Douglas, of Robinson, for appellant.
    John R. Meyer, of Meyer & Meyer, of Flora, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The appellant-plaintiff had filed a petition to enforce a decree of divorce and to modify the decree. A marital settlement agreement of the parties had been incorporated in the decree. The defendant-appellee filed a motion to strike appellant’s petition, and this motion was allowed by the trial court, which decided that each of the five counts of appellant’s petition were defective and that the petition failed to set forth sufficient facts to justify the relief sought.

The appellant appealed from an order of the trial court dismissing her petition to enforce the decree of divorce and to modify the decree.

The appellant was divorced from the appellee pursuant to a decree of divorce entered on May 22, 1970. The decree incorporated a marital settlement agreement entered into by the parties on March 10, 1970. The settlement agreement provided in part of paragraph 2 the following:

“The husband agrees to pay to the wife as and for the support and maintenance for the children the sum of $200 per month payable in two payments of $100 each. Payments shall be due on the first and fifteenth of each calendar month commencing with the fifteenth day of March, 1970. In the event of a divorce between the husband and wife and the remarriage of the wife thereafter, the husband shall have the option of establishing a trust fund for the children and one half of said $200 monthly payment shall be placed in trust by the husband for the benefit of said children. The trust shall provide that the Trustee in his discretion may use such part of the principal and interest as may be necessary in his discretion for the education and support of said children until each of them attains the age of 22 years. The trust shall terminate as to the oldest child upon her attaining the age of 22 years, and the Trustee shall distribute one half of the principal and accrued interest at such time to such daughter. The trust shall continue for the younger daughter until she attains the age of 22 at which time the trust shall terminate. The Trustee will distribute the balance of the trust fund to her at such time. The trust agreement shall provide for the distribution of the proceeds of the trust in the event of the death of one or more of the children prior to the attaining of the age of 22 years.”

The appellant remarried on November 7, 1971, and the appellee declared in a written instrument the trust for the benefit of the minor children as provided in the marital settlement agreement.

The petition to enforce the divorce decree and to modify the decree contained five counts. Count one of'the petition alleges that the defendant is $3600 in arrears for child-support payments and prays that defendant pay that sum. The complaint incorporates the trust agreement by reference. The fact that the defendant has paid one-half of the monthly child-support payments into the trust negates the allegation that defendant was in arrears and renders the count insufficient as failing to state a cause of action supported by the alleged facts. Count four is practically in the same language as count one, except in addition it asks that appellee be held in contempt for failing to comply with the divorce decree. Appellant cites Storm v. Storm, 9 Ill.App.3d 1071, as holding that undisputed nonpayment of child support makes a prima facie case of contempt. This case refers to the remedy sought and actually does not relate to the sufficiency of the complaint. Count four does not state a cause of action and was properly stricken.

The second count of appellant’s amended complaint declares that the trust was set up to defraud the plaintiff. The trial court in its memorandum opinion stated that no facts are alleged which show fraud. In Tate v. Jackson, 22 Ill.App.2d 471, a concise statement was contained of what elements must be set forth showing fraud. These elements are representation, falsity, scienter, deception and injury. This count does not contain these elements, and it was properly dismissed as not alleging a cause of action for fraud. Count three is in practically the same language as the second count, except that mistake rather than fraud is alleged. The case of Stephens v. Hamilton (7th Cir. 1936), 81 F.2d 324, is cited by the defendant as holding that specific acts which constitute a mistake of law must be alleged, and a mere allegation of mistake was a conclusion. This count fails to allege what acts constituted the mistake, and this requirement is a necessity. Thus, count three was also properly dismissed.

The last count of appellant’s petition alleges the divorce and the establishment of the trust and then recites specific circumstances which would justify a hearing concerning a modification of the decree. These circumstances include an increase in the cost of providing for the support, maintenance and education of the minor children, and also that the income and means of the appellee has increased. The prayer for relief in the count asks for an increase in the sum to be paid for the support of the children, modifying the divorce decree accordingly.

There is no question that a trial court has the authority to order a modification in a divorce decree regarding child-support payments. (Lewis v. Lewis, 120 Ill.App.2d 263). Section 18 of “An Act to revise the law in relation to divorce” (Ill. Rev. Stat. 1973, ch. 40, par. 19) authorizes the court on "application * * ** make such alterations * * 0 [in] the care * * * an(j support of the children as shall appear reasonable and proper.” Cases have held that to warrant an increase in child-support payments the petitioner has the burden of proving a change in circumstances which could warrant the increase, and also that the income of the defendant has increased. (Metcoff v. Metcoff, 4 Ill.App.3d 160; Weber v. Weber, 8 Ill.App.3d 374.) The appellant alleged in her petition a change in circumstances warranting an increase in the child-support payments, and also that defendant’s income had increased. She should be given the opportunity to prove these allegations and, if the trial court holds these allegations to be proven, it can grant the relief requested. The trial court may also consider the relief asked for in count five concerning the marital trust agreement, wherein appellant requests that appellee be denied the option of paying one-half of the child-support payments into the trust.

The trial court’s decision dismissing counts one, two, three and four of appellant’s petition is affirmed; however, the decision as to dismissing count five is reversed, and the appellee is instructed to answer the allegations in count five.

The judgment of the Circuit Court of Jasper County is affirmed in part and reversed in part, and the case is remanded to the Circuit Court for such further proceedings as may be necessary in accordance with the opinion of this court.

Reversed and remanded.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. JUSTICE GUILD

text:
    Sharon Ann Duda, Adm’r of the Estate of David W. Duda, et al., Plaintiffs-Appellees, v. Frank Haberman et al., Defendants-Appellants.
    (No. 73-285;
    Second District (1st Division)
    February 14, 1975.

      Robert H. Heise, of Wheaton, for appellants.
    Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton (James F. Quetsch, John R. Mackay, and Louis P. Vitullo, of counsel), for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The instant action was brought by Sharon Ann Duda, individually and as administrator of the estate of David W. Duda, under the provisions of the dramshop act of Illinois (Ill. Rev. Stat. 1967, ch. 43, § 135). The action was originally brought against several defendants. The case was tried before a jury and at the conclusion of the plaintiffs’ case a directed verdict was entered as to the defendants other than Frank Haberman and James Haberman, d/b/a Venard’s. The jury retened a verdict in favor of the plaintiffs in the total sum of $66,500. Upon motion by the defendants, the trial court reduced the judgment to the sum of $20,000, being the maximum allowable under the provisions of the dramshop act.

On the night of June 14, 1969, David Duda was in Venard’s tavern in Westmont, Illinois, with a number of friends, including his wife and sister-in-law, one Ronald Dietschweiler, and one Thomas Mottlow, among others. Dietschweiler had apparently come to the tavern at approximately 8:30 in the evening, and later that evening Dietschweiler drove Mottlow to his place of residence, accompanied by Duda. They returned to Venard’s tavern and remained there until either 12 or approximately 2 A.M., there being a conflict in the testimony as to the time Dietschweiler and Duda left the tavern. During the course of the evening Dietschweiler consumed alcoholic beverages in Venard’s tavern. Dietschweiler, accompanied by Duda, then drove his 1969 Cadillac to another tavern called The Blue Front. Dietschweiler and Duda entered the tavern and after a period of time were asked to leave. They , then drove to Lemont where they entered an unnamed tavern and .were refused of their intoxicated condition. Duda then walked to another tavern while Dietschweiler remained in the car. Upon Duda’s return Dietschweiler then drove towards Westmont. He apparently fell asleep, drove off of the road, struck a culvert and both he and Duda were injured, Duda being so severely injured that he died shortly thereafter.

At the outset it is to be noted that this is a “by” action brought under the provisions of the dramshop act of Illinois. As has been repeatedly stated, there are two types of actions possible under the provisions of this act, one known as a “by” action and the other known as an action “in consequence of the intoxication.” The courts of Illinois have rather clearly defined this distinction between the two types of action and the degree of proof necessary in either one. In Cope v. Gepford (1945), 326 Ill.App. 171, 176, 61 N.E.2d 394, 396, the court there pointed out the distinction:

“It will be noted that the act affords a right of action to one injured in person or property or means of support (1) “by any intoxicated person,’ or (2) ‘in consequence of the intoxication, habitual or otherwise, of any person.’ In the first instance the action is for a direct injury inflicted by an ‘intoxicated person,’ and in the second instance it is for such injury as may be suffered ‘in consequence of intoxication’ of any person.”

The court then went on to state that the case considered by them therein was an “in consequence” case and that it was incumbent upon the plaintiff to prove that the intoxication was the proximate .cause of the injury. In Danhof v. Osborne (1957), 11 Ill.2d 77, 142 N.E.2d 20, the supreme court considered the same issue and in that case, which was an “in consequence” type of case, the court stated that it was incumbent upon the plaintiff to prove that the intoxication of the plaintiff’s husband was the proximate cause of the injury. Somewhat in summation, the supreme court, in Hernandez v. Diaz (1964), 31 Ill.2d 393, 397, 202 N.E.2d 9, 12, made the following statement in citing St. Clair v. Douvas (1959), 21 Ill. App.2d 444, 452, 158 N.E.2d 642, 647:

“Under the Act two causes of action are given: one for an injury resulting from the direct affirmative act of an intoxicated person, and the other for an injury resulting ‘in consequence of the intoxication, habitual or otherwise.’ ”

The court succinctly stated that:

“What is required under the theory of a ‘by’ action is that the direct affirmative act of an intoxicated person must have a causal, connection with the injuries sustained by the plaintiff.” 31 Ill.2d 393, 398, 202 N.E.2d 9, 12.

In the case -before us there is no argument but that the intoxication of Ronald Dietschweiler, the driver of the car, had a direct causal connection with the death of the plaintiffs’ decedent, David Duda. We find that this is not a “by” type of action under the dramshop act and plaintiff must prove a causal connection between the intoxication and the injuries resulting in the death of plaintiffs’ decedent.

In the appeal before us the defendants contend (1) that the plaintiffs failed to establish a prima facie case; (2) that the verdict was against the manifest weight of the evidence; (3) that tire trial court improperly restricted cross-examination of plaintiffs’ witness which constituted prejudicial reversible error; (4) that the attorney for the plaintiffs made prejudicial remarks during final argument which constituted reversible error; and (5) that the award to the plaintiffs of $20,000 was excessive.

Turning to the first contention of the defendants, the gist of the argument presented is that the accident was caused by Dietschweiler falling asleep and that the plaintiffs failed to prove that the intoxication of' Dietschweiler was the cause of his falling asleep. This is a somewhat novel argument and is contrary to common knowledge. In the case of Weisguth v. Stack (1911), 165 Ill.App. 462, 465, the court there considered a case where plaintiff’s husband became intoxicated in a tavern, fell asleep in the back room of the saloon and was robbed of $85. The case was tried by a jury, and the court made the following interesting observation:

“[Ojn the other hand the jury were justified in finding, as they must have, that the money would not have been taken from Weisguth had he not been in a drunken sleep brought about by the intoxication.”

Likewise in Grant v. Paluch (1985), 61 Ill.App.2d 247, 253, 210 N.E. 2d 35, 38, the court there stated:

“It is common knowledge that there are varied effects of alcoholic liquors upon persons.”

As we will point out later herein, there is no question in this court’s mind that Dietschweiler was intoxicated. We agree with the courts as stated in Weisguth and Grant that intoxication does bring about drunken sleep as a matter of common knowledge. We find plaintiffs did, therefore, establish a prima facie case in this regard.

We do not find that it is any more necessary to prove by expert testimony that intoxication may and does cause an intoxicated person to fall asleep than it would be necessary to prove by expert testimony that intoxication causes a man’s speech to be slurred or that an intoxicated person is unable to walk steadily.

The next contention of the defendants is that the verdict is against the manifest weight of the evidence. In support of this contention, the defendants state that where the facts are controverted the proof of a mere possibility is not sufficient. We find from the facts as indicated herein that, although controverted, the evidence satisfactorily indicates that Dietschweiler did in fact become intoxicated in the tavern in question and as a result of his intoxication the plaintiffs’ decedent was killed. Defendants further contend that a verdict must not be based upon speculation, conjecture or surmise. In support of this contention tire defendants state that the defendant owner of the tavern testified that Dietschweiler was not intoxicated at the time he left Venard’s tavern and that Dietschweiler himself testified that he was not intoxicated at that time. As defendants point out, this is a controverted fact, and the evidence on behalf of the plaintiffs was that he was observed in an intoxicated condition at the tavern, and the further evidence is, at best, that he had one drink at the subsequent tavern visited by Dietschweiler. It is again to be noted that they were ejected from that tavern and upon their attempt to enter another tavern were refused admission. The evidence that Dietschweiler was intoxicated at the time he left Venard’s tavern is, even though controverted, further substantiated by the fact, as indicated herein, that the two officers who appeared upon the scene of the accident testified that in their opinion Dietschweiler was, in fact, intoxicated at the time of the accident. Defendants further contend that Dietschweiler was not intoxicated at the time of the accident. In support of this contention he points out the fact that a Sergeant Gogliotti, one of the three officers at the scene, testified that he did not form an opinion as to whether or not Dietschweiler was intoxicated. This statement is not in conflict with that of the other two officers and obviously is merely a statement that he did not observe one way or the other whether Dietschweiler was intoxicated. Further, defendants contend that if this court should find Dietschweiler was intoxicated at the time of the accident, the manifest weight of the evidence is that he became intoxicated at the Blue Front Tavern after leaving defendants’ tavern. Again, defendants say this is a controverted fact. The only evidence in the record as to consumption of alcoholic beverages by Dietschweiler after leaving Venard’s tavern was his statement that he might have had a drink at the Blue Front Tavern. Lastly, defendants again reiterate the contention-that, conceding Dietschweiler was intoxicated, the accident occurred because Dietschweiler fell asleep and the plaintiffs did not prove the intoxication caused the party to fall asleep. Considering all of these arguments, in substance, the defendants have admitted that these are controverted facts. If, in fact, they are, the jury was justified in finding that the death of the decedent was caused as a direct result and by the intoxication of the driver of the motor vehicle, Ronald Dietschweiler.

Defendants argue that they were prejudiced because they were not allowed to cross-examine one of the investigating officers at the scene of the accident as to whether he issued a traffic summons to Dietschweiler. This argument is without merit. In Allen v. Yancy (1965), 57 Ill.App.2d 50, 206 N.E.2d 452, the trial court admitted evidence by the investigating police officer that he did not issue a ticket or summons. Plaintiff objected. The court stated that the trial court erred in not striking this testimony as the jury might have properly inferred from it that in the officer s opinion the defendant was not at fault. The court went on to further state therein that failure to strike the testimony that the investigating officer did not issue a traffic summons at the time was clearly error.

The defendants argue that counsel for the plaintiffs made improper remarks in his final argument to the jury, primarily because the statement by plaintiffs’ counsel that “[tjhey [Mr. Dietschweiler and plaintiffs’ decedent] were ejected from the first place they went to after leaving Venard’s” was not only improper and prejudicial as a statement regarding facts not in evidence, but, beyond that, the statement was contrary to the clear evidence in the case. This argument is without merit and contrary to the record. The witness Dietschweiler testified specifically, “I think we had a drink and we were told to get out of there. They didn’t want us there * * The record further discloses that Dietschweiler testified that they went to Lemont to another bar. Specifically he stated, “The first tavern we went to there, they told us to leave. They didn’t want us coming in there.” There was, therefore, no evidence whatsoever that any liquor was served to Dietschweiler or to Duda in the second tavern in Lemont. We fail to see how these remarks, based upon the evidence in the record, would prejudice defendants’ theoiy that Dietschweiler became intoxicated at a dramshop other than the defendants’.

The last argument of the defendants is that the award of $20,000 is excessive because the decedent was an unskilled laborer earning considerable less than that amount per year. Decedent’s widow testified that the decedent (Duda) had earned the sum of $4300 during the year up to the time of his death on June 15, 1969. While not so stated by defendants, it would appear that their contention is that the award is excessive and should be based upon the earnings of a decedent in a dram-shop action such as this for the calendar year. We find no such interpretation. In the dramshop action found in Kiriluk v. Cohn (1958), 16 Ill. App.2d 385, 393-94, 148 N.E.2d 607, 611, the jury awarded the sum of $10,000 to the surviving wife. The court held that the use of mortality tables as a basis for plaintiff’s loss of support was not error and stated: “The testimony showed decedent’s annual income was about $1,100, and the table showed a life expectancy of nearly eighteen years. Multiplying these two factors would far exceed the verdict which was rendered.” The decedent in the case before us was 23 years of age. The award is for fhe support of the widow and the minor children and is a statutory amount set forth by the legislature, and it is obvious that fhe sum of $20,000 is not excessive for an award to the widow and two minor children aged approximately 3 months and 15 months respectively at the time of fhe death of the father and husband. As a matter of public policy in this statutory proceedings, the limitation of the award is now the sum of $20,000 and under the facts of this case it is not excessive.

Judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P. J., and HALLETT, J., concur.


text:
    Department of Mental Health, of the State of Illinois, Plaintiff-Appellee, v. Russell L. Mitchell, Defendant-Appellant.
    (No. 73-380;
    Fifth District
    February 11, 1975.

      J. Max Mitchell, of Frankfort, for appellee.
    William J. Scott, Attorney General, of Chicago (Jerry Felesenthal, Assistant Attorney General, of counsel), for appellant.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant appeals from a judgment requiring him to pay the sum of $345.14 to the Department of Mental Health, as the outstanding portion of monies due for the care and support of the defendant’s daughter. The trial court granted the plaintiff’s motion for summary judgment.

The three questions presented for review are:

(1) Was the defendant precluded from raising the factual issue, as to whether there was payment, by failure to use administrative review?
(2) Was this a proper case for summary judgment?
(3) Did the statute of limitations bar this action?

We answer the first two questions in the affirmative and the last question in the negative; thus, the judgment of the trial court must be affirmed.

Plaintiff’s complaint alleged that the defendant was the father of Carolyn Mitchell, who was hospitalized in the Lincoln State School. The complaint further alleged that, pursuant to section 12 — 12 of the Mental Health Code (Ill. Rev. Stat., ch. 91%, par. 12 — 12), the father was a responsible relative and liable for maintenance charges in the amount of $345.14. Attached to the complaint was an exhibit, showing that from July through December, 1963, the defendant owed $63 per month and that only $32.86 had been paid. Another exhibit was a notice of final determination, sent to the defendant on January 11, 1960, which assessed charges of $63 per month. The defendants motion to dismiss was denied, and the plaintiff filed a motion for summary judgment. The trial granted defendant 10 days for a reply, and he then filed an affidavit of defense. Over 2% years later, the trial court entered an order granting plaintiff’s motion for summary judgment.

The defendant’s affidavit claimed the July and August, 1963, payments were barred by the 5-year statute of limitations, and on a rehearing, the defendant also alleges that a factual issue was presented, thus preventing the court from granting a summary judgment.

The plaintiff cites Department of Public Welfare v. Haas, 15 Ill.2d 204 (1958), and In re Estate of Hartseil, 4 Ill.App.3d 80 (1972), for the proposition that defendant must first pursue his remedy before an administrative board. Plaintiff claims his failure to do that precludes him from raising an issue for the first time in the trial court. However, defendant’s ability to pay the charges assessed was the key issue in the Haas case, and it was held in the Haitseil case that the trial court had no authority to inquire into and reduce the amount of claims where no administrative procedure for review had been followed. The question in the instant case is whether the issue of payment by defendant should have been raised first in an administrative hearing.

Section 12 — 12 of the Mental Health Code states, “The Department may issue * * * to any person liable * * * a statement of amount due as treatment charges.” It is reasonable to assume that the Illinois legislature intended that tire Department of Mental Health first determine that the amounts claimed had not been paid, before bills were forwarded. This would be in conformity with good, sound business practices. The word “due” is interpreted as meaning unpaid. The language of section 12 — 12 of the Mental Health Code gives authority to the Department to determine whether the defendant has paid.

The defendant could have petitioned for a hearing and attempted to have his charges modified or cancelled on the ground that his bill had been paid. His failure to do so precludes him from raising this point for the first time in the trial court.

Section 57(1) of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, par. 57(1)) provides that “Any time after the opposite party has appeared * * * a plaintiff may move * * * for a summary judgment or decree in his favor for all * * * of the relief sought.” Defendant’s argument that it was error to grant summary judgment before die defendant has answered has no merit. First the defendant filed a motion to dismiss which was denied, and then he filed a detailed affidavit of his defense. The trial court properly considered this affidavit for determining that a factual dispute existed, and an answer was not necessary for this purpose.

In Frick v. O’Hare Chicago Corp., 70 Ill.App.2d 303 (1966), the court held that if upon an examination of the pleadings, depositions, affidavits and admissions on file, it can be fairly said that there is a genuine issue as to any material fact, a motion for a summary judgment should be denied. On the other hand, when the record shows there is no triable issue of fact, a summary judgment will be granted. The same reasoning was brought forth in Lumberman’s Mutual Casualty Co. v. Foths, 104 Ill.App.2d 80, 88 (1968), when the following language was used: “The only function of the court, when presented with a motion for summary judgment, is to determine if a genuine issue exists as to a material fact; if not, summary judgment is proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue.”

Nowhere in his motion or affidavit does the defendant claim that he had paid the charges which were the subject of the complaint. Rather, the defendant claims that, prior to the 1963 amendment to the Mental Health Code, he had paid enough money so that, when the new amendment went into effect, he would not be required to pay more. This is the only claim made in respect to payment of these charges. Consequently, there never was a factual issue raised by the defendant that he paid the sum in question. His claim of payment was forwarded on an interpretation of the statute, and as the judge found against him on this issue, summary judgment was appropriately entered. Even if this would have been a valid defense, and the defendant should not have been assessed the charges, because of an overpayment, the issue would be whether the charges were properly assessed. However, the Haas case indicates that this is a matter which must be raised in an administrative hearing before it can be raised in the trial court. Consequently, it was not error to grant summary judgment, as there was no factual dispute.

The third and final question for review was whether or not the statute of limitations would bar plaintiff’s action. The 1963 amendment to the Mental Health Code set 5 years (Ill. Rev. Stat., ch. 91½, par. 12— 12) as a statute of limitations. The record shows that the defendant made a payment of $63 in August, 1967. The following cases have held that part payment of a debt tolls the statute of limitations — In re Estate of Swift, 267 Ill.App. 224 (1932); Walker v. Warner, 179 Ill. 16 (1899); Meyer v. Kramer, 350 Ill.App. 102 (1953) (abstract opinion). Thus the payment in August, 1967, caused the 5-year statute of limitations to run from that date, and the filing of plaintiff’s complaint in 1968 was within the period.

The judgment of the Circuit Court of Franklin County is affirmed.

Judgment affirmed.

G. MORAN and EBERSPACHER, JJ., concur.