text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Gary Sloan, Defendant-Appellant.
    (No. 73-252;
    Fifth District
    June 5, 1974.
    Robert E. Farrell and Steven Clark, both of Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Robert H. Howerton, State’s Attorney, of Marion, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant was charged on March 29, 1973, by an information with the crime of aggravated battery. A preliminary hearing was held on April 5, 1973, and on April 10, 1973, the defendant waived indictment and pled gmlty to the offense of aggravated battery. Pursuant to a plea agreement the defendant was sentenced to probation for a period of 3 years. The defendant was represented by counsel at the preMminary hearing and also at his plea of guilty.

On May 24, 1973, a petition to revoke the defendant’s probation was filed. This petition was amended on June 2, 1973, so as to charge that the defendant violated the terms of his probation by committing the offense of arson and by possessing and consuming alcoholic liquor.

On July 9, 1973, the defendant pled guilty to violating his probation, and he was sentenced, pursuant to a plea agreement, to a minimum of 1 and a maximum of 3 years in the penitentiary. Before the plea was accepted, the defendant was informed of the nature of the charge against bim; that he had a right to a hearing at which the State would have to prove the charges by a preponderance of the evidence; that he had the right to confront witnesses and have witnesses called on his behalf. The court also determined that there was a factual basis for the plea and that the plea was entered voluntarily. Defendant was represented by counsel at the plea.

The defendant complains in this appeal that he was not properly informed of the possible sentence that he could receive. The only reference to the possible sentence at the revocation proceeding was the following:

“Court: Do you further understand that if you * * * if this court finds that you violated your probation, of course, you could be sent to the penitentiary on the original charge of aggravated battery. Do you understand that?
Defendant: Yes.”

The issue raised in this appeal is whether a defendant must be informed of the possible sentence when he pleads guilty to probation revocation. “It seems hardly necessary to indicate that where defendant has been found guilty, granted probation, that he should upon violation of his probation be once again admonished as to the possible sentence that might be imposed. There is no analogy as counsel contends, between acceptance of a plea of guilty and the imposition of a sentence upon the revocation of probation.” (People v. Evans, 3 Ill.App.3d 435.) This same reasoning was adopted in People v. Beard, 15 Ill.App.3d 663, which cites Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L.Ed.2d 656, 93 S.Ct. 1756. The United States Supreme Court stated at page 789:

“* * * we deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.”

In the instant case, the defendant was afforded the same due process rights given to defendants who plead guilty to a criminal offense. He was informed of the nature of the charge against him and admonished of his right to a hearing and of his rights at that hearing. The defendant was further informed that at his hearing the State would have to prove the charges by a preponderance of the evidence, not beyond a reasonable doubt, but just by a preponderance of the evidence; he would have the right to be confronted by his accusers and his counsel could cross-examine them, and he would also have the right to have witnesses testify in his own behalf. He was represented by an appointed attorney, and it was the same attorney who had represented him at his original plea of guilty to the aggravated battery. The defendant had agreed to the negotiated sentence of 1 to 3 years. He was told, and stated that he understood, that he could be sentenced upon probation revocation for the conviction of aggravated battery. The defendant had been earlier informed when he pled guilty that the possible penalty for aggravated battery was a term of from 1 to 3 years. That was an understatement of the actual penalty, but a defendant is not prejudiced by such an understatement.

In People v. Hardnett (1971), 132 Ill.App.2d 843, the court stated that “the defendant is entitled to and was given a conscientious judicial determination according to accepted procedural methods upon the question of whether the conditions of his probation were violated.” The supreme court in People v. Pier, 51 Ill.2d 96, 100, considered the problem and the following language was used:

“Since the results of a probation revocation may be a deprivation of liberty and, consequently, as serious as the original determination of guilt, we agree with the holdings of these cases that due process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge according to accepted and well recognized procedural methods.”

Following the guidelines as set out in Pier, the trial court need not precisely follow Supreme Court Rule 402 as if the probationer were making a plea of guilty to a criminal offense. “An admission of a probation violation is significantly different in nature and effect from what is involved in a plea of guilty to the original criminal charge. A probationer has no right to a hearing by a jury, and the State is required to prove the violation only by a preponderance of the evidence, rather than by proof beyond a reasonable doubt.” (People v. Beard, 15 Ill.App. 3d 663.) The defendant in this case was afforded the necessary due process and the admonitions given him by the trial court demonstrate that the court judicially determined in a conscientious manner that the defendant was guilty of violating the probation which had been granted and was aware of the consequences of admitting his guilt.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EGAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Tisley, Defendant-Appellant.
    (No. 58402;
    First District (1st Division)
    May 20, 1974.

      Rehearing denied June 10, 1974.

    James J. Doherty, Public Defender, of Chicago (Robert Gevirtz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, William Tisley, was charged in three separate indictments with the offense of arson in connection with fires at an apartment building at 612 and 614 North Spaulding on July 9, 1971, August 6, 1971, and September 4, 1971. He was also charged with the murder of four persons who were killed in the September 4, 1971, fire. After a bench trial, he was found guilty of the August 6, 1971, arson and acquitted on the other charges.

The indictment on which he was found guilty alleged that he, “by means of fire knowingly damaged the building of Uglee Hopson, in violation of Chapter 38, Section 20 — 1, of the Illinois Revised Statutes 1969.”

Uglee Hopson executed a contract to purchase the building at 612 and 614 North Spaulding from Roy Walker for $20,000 in April, 1971. There were nine tenants in the building, and May 1 was the first time that he collected the monthly rents. Mrs. Tisley, the mother of tire defendant, paid only $90 of her $125 monthly rent. In June, Hopson again collected rents and the Tisleys failed to pay anything. Hopson gave Mrs. Tisley 5 days’ notice, but she did not move out. In July, he again collected rents, and Mrs. Tisley did not pay. She moved out sometime that month.

There was a fire in the building on July 9, 1971, which started on the second floor of the building east of the Tisley apartment. On August 6, 1971, there was another fire in the building. The area burned was from the basement to the third floor. On September 4, 1971, there was a fire which rendered the building unhabitable. Hopson testified that he was trying to get the people to move from the building, but he had given up going to the building because the people were so rough. He filed 5-day notices against the tenants and collected no rents after July. He wanted the people out of the building so that he could board it up and get it repaired.

Walker, the contract seller, showed no interest in taking the building back, and Hopson never executed any document conveying the interest back to Walker. Before the fires he made several improvements to the building including a new hot water heater and provision for garbage collection. He had fire insurance but never made a claim because he was interested in the building and not the insurance. He continued to provide garbage collection, light, water and heat.

Isaac Johnson, Sr., lived at 614 North Spaulding until July 9, 1971, on which date he saw the defendant around the building several times. The fire occurred late in the evening, and Johnson entered the building after the fire was out. He noticed that in the Tisley’s apartment everything was burned, and he testified that the steam “sort of smelled like gasoline.”

Isaac Johnson, Jr., 14 year's old, saw the fire coming out of the second floor. He went up to his apartment and took his younger brothers and sister downstairs. He went through the gangway leading to the back of the building and saw the defendant and his brother running toward him. When he reached the back of the building, he heard the defendant say: “I got that house and I am going to get Ida Well’s house next.”

Hattie Rucker lived at 612 North Spaulding from January of 1971 until the fire in September. She knew the defendant by his nickname, Baby. On July 9, 1971, while she was standing at an open front window in her living room, she saw the defendant and heard him say to the others who were standing with him: “If we couldn’t live in the building it was no other going to live there [sic].” She left home and discovered there had been a fire when she returned that evening. The Tisley family did not live in the building between July 9, 1971, and August 6, 1971, but Mrs. Rucker saw the defendant in the area several times. In the early morning of August 6, 1971, Mrs. Rucker testified she was again standing near her front window when she saw a man whom she identified as the defendant go into the entrance at 614 North Spaulding. She could see his face. He was carrying a bottle about 10 inches long and 4 inches in diameter which was burning at the small end at the top. After 4 or 5 minutes had elapsed, the defendant came out, and Mrs. Rucker heard “a big explosion.”

After that evening Mrs. Rucker saw the defendant about a week later. She was again standing at the front window of her second floor apartment when she saw the defendant standing outside with two other persons. She heard the defendant tell them: “If we can’t stay in the building, nobody else is going to stay because we are going to burn it down.”

On cross-examination Mrs. Rucker testified that at the times in question she was not employed and she happened to be near her windows. Around August 6 she was sleeping during the day and staying up most of the night. On that date she saw the defendant holding a burning bottle containing some type of liquid and walking into the gangway. Somebody ran out of the building in front of the defendant. It wasn’t anyone she knew.

After the September 4, 1971, fire she talked to a Detective Keating, who questioned her about that fire. She told him she knew nothing. He subsequently questioned her about the August 6 fire, and she told him what she had seen.

There were no street lights on in front of her building, but the light was shining in from the school across the street. The light was sufficient to permit her to see that the defendant was wearing purple clothing of some kind.

Annie Rucker, 12 years old, testified that on September 4, 1971, at about 2 A.M. she saw the defendant standing outside her window and then running through the gangway. Shortly thereafter she went to bed and was later awakened by her sister who told her there was a fire. They jumped out the window to avoid the fire.

The defendant first contends that the indictment is defective because the evidence showed that the person specified in the indictment as the owner of the building actually had no ownership interest at the time of the fire. Judging from the cases cited by the defendant, we believe the defendant means to say that there is a fatal variance between the allegation of ownership in the indictment and the proof. In any event, we judge that the indictment on its face alleges ownership sufficiently to apprise the defendant of the nature of the charge against him and that it would provide a bar to any subsequent prosecution for arson of the same building. We further judge that there is no variance between the proof and the indictment. The evidence shows that Hopson was a contract purchaser of the building, and there is nothing to show that he had been relieved of his legal obligation under that agreement to pur-, chase. The Criminal Code defines property of another under the arson statute to mean “a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.” Ill. Rev. Stat. 1971, ch. 38, par. 20 — 1.

In a case where an arson indictment alleged that the building was the property of a certain individual and the proof showed the individual was a lessee, the conviction was upheld. (People v. Gaither, 103 Ill.App.2d 47, 243 N.E.2d 388.) And in People v. Ross, 41 Ill.2d 455, 244 N.E.2d 608, a conviction was affirmed where the indictment alleged that the property was the building of a savings and loan association and the proof showed the association was a mortgagee. The reasoning of those cases is applicable here; and we hold that a contract purchaser “has an interest which the [defendant] has no authority to defeat or impair.”

Ida Mae West testified that she saw the defendant and his brother Leroy walking across the street from 612 and 614 Spaulding on July 9, 1971. She also testified that she saw both of them around 612 Spaulding quite often between July 9 and August 6, 1971. On cross-examination the following occurred:

“Mr. Sammons: Q. You have bias, and wish to do harm to Lucille Tisley, the defendant's mother?
A. No, I don’t have anything against the Tisleys.
Q. Nothing? Didn’t you accuse them of committing a crime against your husband?
A. I didn’t.
Mr. Reilley: Objection.
The Court: Overruled. It may go to some bias.
Mr. Reilley: The word “accuse,” now, accuse whom; when? The Comt: I will sustain the objection to “accuse.” I think the form is bad.
Mr. Sammons: Q. Was your husband shot on or about the third of July, 1971?
A. My boy friend was shot July 4th.
Q. Is his name Lucarelli?
A. Yes.
Q. Is he presently your boy friend?
A. Yes.
Q. Is he in court today?
A. Yes.
Q. And was he, in fact, shot on or about July 4, 1971?
A. Yes, he was shot.
Q. You were not a witness to that shooting, were you?
A. It wasn’t never found who shot him.
Q. Were you a witness to that shooting, madam?
A. I don’t understand “witness.”
Q. Did you see the person that shot your husband?
A. Oh, no.
Q. Or your boy friend?
A. No, I didn’t see the person who shot him, no.
Q. Nevertheless, you told a policeman, the same day, he was shot by “Babe-Babe and “Spider Man,” did you not?
A. No, I did not; because if I had—
Mr. Reilley: Objection.
The Court: Sustained.” (Emphasis added.)

The defendant now contends that this exchange shows that the court improperly restricted his attempts to show the bias of the witness against him. We disagree. She was asked if she ever accused the Tisleys, not die defendant, of shooting her boy friend. And she was permitted to answer that she had not. She denied that she had ever told the police that Babe-Babe, that is, the defendant, and his brother Leroy, or Spider Man, had shot her boy friend. The defendant never offered any evidence to show that she had ever accused the defendant. On re-direct examination she specifically said she did not know who shot her boy friend, and she specifically denied that she thought the defendant or his brother had done the shooting. Consequently, we fail to see how the defendant can maintain he was not permitted to show any possible bias arising from the shooting of her boy friend. We note parenthetically, that Ida Mae West’s testimony centered on the occurrence of July 9, the date of a fire for which the defendant was acquitted.

Patrick McFarland at the time of trial had been a fireman for áVz years and had been engaged in 100 to 150 fires per month for over 3 years. Many of the fires had involved apartment buildings. On August 6, 1971, he went to a fire at 614 North Spaulding. When he arrived there he saw heavy smoke on the first floor and flames coming from all the front windows. There were flames on all floors. After he entered the building, the third floor landing fell on his head, and he was taken to a hospital. When he was asked if he noticed anything unusual about this fire, he said:

“What I found out unusual about that fire was there was all kinds of flames, a lot of flames, and the apartment was abandoned, and I believe there might have been an accelerant to help it.”

An objection was sustained on the ground of insufficient foundation. The State’s Attorney again asked him, based on his experience as a fireman and what he observed, whether he had an opinion as to “what may have been used and involved in the fire.” An objection was again sustained on the ground of insufficient foundation. He then testified in response to questions by the State’s Attorney that the heat was intense and that he had encountered fires with less intensity in buildings with stairways. When he was again asked if he had an opinion as to the “probable cause, or causes, of that fire,” the court said in response to an objection: “I will let him give an opinion for what it is worth.” The witness then answered: “In my own opinion, I think there was something to help this fire along.” The cross-examination then disclosed that the witness was unfamiliar with many terms used in the study of fire causation. The court repeatedly overruled objections by the State’s Attorney stating that, since the State had submitted him as an expert witness, the questions were proper because they went “to his expertise.” The witness recited the different causes of fires and said that he was unable to say whether the fire was started by electric wires or not. He did not see any accelerant in the building nor did he smell any. The defendant now assigns as error the fact that this witness was permitted to give an opinion as to the probable cause of the fire.

After McFarland had testified, the court in denying the motion to strike his testimony said:

“I think it goes to the weight of it. Let’s say you damaged him rather badly with your cross examination; however, I think it goes to the weight of it, not to its competency. I will deny the motion to strike.”

Whether a witness has been qualified as an expert is left to the broad discretion of the trial judge. (Stanley v. Board of Education, 9 Ill.App.3d 963, 971, 293 N.E.2d 417.) The remarks of the trial judge, taken with his initial ruling sustaining objections to the opinion of the witness, his comment that he would permit the testimony for “what it is worth,” and his overruling of the State’s objections disclose that he gave no weight to the opinion evidence of McFarland. Consequently, we judge that the admission of the opinion of McFarland, if it was error, was harmless. And we further judge that the evidence, absent the testimony of McFarland, is sufficient to sustain the conviction.

The defendant also argues that Hattie Ruckers’ testimony is not worthy of belief as a matter of law and that aU the witnesses were part of a conspiracy against him. Neither assumption is supported by the record; and since Hattie Rucker’s credibility was for the trial court to determine, the defendant was proved guilty beyond a reasonable doubt.

Finally, the defendant contends that his sentence of 3 to 12 years is excessive. At the time of sentencing he was 23 years of age. In 1966 he had been placed on probation for theft and later fined $200 for resisting arrest. In 1967 he was sentenced to 6 months for criminal damage to property. We can think of few more dangerously irresponsible, if not vicious, acts tiran setting fire to a building containing several families in the early morning hours, and we see no reason to upset the trial judge’s determination of a proper sentence. For a factually similar case where the reviewing court upheld the 10 to 20 year sentence of a defendant who had no previous criminal record, see People v. Grayle, 2 Ill.App.3d 4, 6, 276 N.E.2d 98.

The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and GOLDBERG, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank J. Robinson, Defendant-Appellant.
    (No. 58599;
    First District (1st Division)
    May 20, 1974.
    HALLETT, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM:

Defendant was found guilty after a bench trial of the offenses of aggravated assault and unlawful use of weapons, in violation of sections 12 — 2 and 24 — 1 of the Criminal Code, and was placed on probation for concurrent terms of 2 years on condition that the first 6 months be served in the county jail. (Ill. Rev. Stat. 1971, ch. 38, pars. 12 — 2, 24 — 1.) He appeals.

Henrietta Huffman testified for the People that at about daybreak on October 28, 1972, she had been asleep in the living room of her apartment on West 103rd Street in Chicago when she heard shouts of obscene language from her front porch. The defendant, an acquaintance of the witness, was on the porch and the witness telephoned the police. Gunshots were fired through the door and the defendant threatened to kill everyone in the house and “burn the place up.” It further appears that after the police arrived and had surrounded the house, a shot was fired from inside the house which the officers thought was meant for them; that they entered the house and held the witness’ son Carl at gunpoint; and that the defendant left the premises. A short while later the witness signed papers at the police station, after which she placed a telephone call to her apartment from a store away from the station; the defendant answered the telephone and again threatened to kill everyone in the house; the witness again informed the police that the defendant was at the apartment. The witness later learned that the defendant had been placed under arrest and she identified him as the person who shot a gun through her apartment door.

Chicago Police Officer Dennis Culom testified for the People that he went to the apartment in question in response to a radio communication; he and his fellow officers observed the defendant seated in the living room of the apartment and received permission from Carl Huffman to enter the apartment. The officers forcibly entered the apartment, the defendant was placed under arrest, and a handgun was taken from his possession, in which two expended shell casings were found. The defendant had been advised of his constitutional rights, he responded to questions that the gun did not belong to him, and he made no reply to questions concerning the gun’s registration and the expended shells found in the weapon. The officer testified that the gun was not found on the living room floor, nor was it taken from a drawer in the apartment.

Defendant testified in his own behalf that he was a friend of the complaining witness and that he possessed two keys to the apartment in question. On the morning in question he arrived at the apartment and rang the doorbell; he received no answer, used a key to gain entrance and found no one inside. While seated in the apartment the telephone rang and when he answered it, there was no response. While he was in the apartment the police arrived and placed him under arrest. The defendant denied firing a gun or threatening to harm anyone in the apartment; he stated that the police recovered the gun from the floor of the apartment, where the defendant had thrown the weapon, and he accounted for the presence of the two expended shells in the gun by stating that he had fired the weapon 2 days before in another part of the city.

The defendant was found guilty of the offenses of aggravated assault and unlawful use of weapons; additional charges of failure to comply with state and local firearms registration provisions were dismissed by the court. Defendant was placed on probation for concurrent periods of 2 years, on condition that he serve the first 6 months in jail, after a hearing, in aggravation and mitigation disclosed no prior criminal record.

Defendant’s initial contention is that the record does not disclose whether he understandingly and knowingly waived his right to a jury trial.

After the case had been called for trial, defendant’s appointed counsel answered “plea of not guilty” and “jury waived.” Although the record does not disclose when, in relation to the commencement of the trial, counsel was appointed, counsel’s knowledge of defendant’s version of the circumstances of the case and of defendant’s past history demonstrates that a conference had been engaged in between defendant and counsel prior to trial and prior to the waiver of the jury. It is settled that a defendant may properly waive his right to a jury trial through appointed counsel where there has been sufficient opportunity for consultation. (People v. Sailor, 43 Ill.2d 256, 260-261, 253 N.E.2d 397; People v. McClinton, 4 Ill.App.3d 253, 280 N.E.2d 795.) The jury waiver was properly made.

Defendant also questions whether he properly pleaded to the complaint charging him with aggravated assault.

The record affirmatively discloses that defendant was served with copies of the two complaints in this case, charging him with the assault and with the unlawful use of weapons. The complaint charging the assault was signed by Henrietta Huffman, but it had improperly named and described her son, Carl Huffman, as the victim of the assault. That discrepancy was corrected by the prosecutor in open court and without objection from defendant, who thereafter expressly waived re-execution and re-swearing of that complaint and also expressly waived his right to a preliminary hearing and to indictment in connection therewith. Defendant was specifically informed if the charge against him, which allowed him opportunity to prepare his defense and which would have prevented the possibility of being again charged for the same offense. (People v. Kaprelian, 6 Ill.App.3d 1066, 286 N.E.2d 613.) The charge of aggravated assault made against defendant was substantially the same in the amended complaint as that contained in the original complaint, and a new plea to the amended complaint under the circumstances was therefore not necessary. The cases cited by defendant in support of his position in this regard are not in point: see, e.g., People v. Moore, 21 Ill.App.2d 9, 157 N.E.2d 94.

Defendant’s further arguments, that a reasonable doubt exists as to his guilt of both offenses since the testimony of the complaining witness was confused and since both convictions arose out of confusion at the trial, are likewise without merit.

Although the complaining witness’ testimony was confused and contradictory in some measure, the salient facts which emerge from her testimony are that defendant was at her door on the morning in question, that he fired gunshots through the door and threatened to kill everyone in the apartment and that the police responded. The trial court, as the trier of fact, resolved whatever conflict existed in her testimony when the court found that any contradictions in her testimony which occurred on direct examination were settled on cross-examination. Defendant was proved guilty of the offense of aggravated assault beyond a reasonable doubt.

The further argument is made that the findings of guilty arose out of confusion at the trial, since the record allegedly fails to disclose that defendant was being tried for the unlawful use of weapons or that he was in fact charged with the gun registration offenses. The record affirmatively discloses that he was in fact tried on the unlawful use of weapons charge, which complaint was also amended in open court when the case was called for trial. Defendant cannot be heard to complain with regard to the court’s dismissal of the gun registration charges since he in fact was found not guilty of those offenses and the instant record consequently does not contain the complaints in that regard.

The final point raised by defendant on appeal is that the 6-month county jail sentence imposed as a condition of the terms of his probation entered upon the convictions violates section 5 — 6—3 of the Unified Code of Corrections, which prohibits a term of incarceration as a condition of probation; he states that the jail sentences must therefore be vacated. We agree.

Subsection (d) of section 5 — 6—3 of the Code specifically provides that a term of incarceration shall not be imposed as a condition of probation. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—3(d).) Since the instant convictions have not yet been finally adjudicated and since it may benefit the defendant in the terms of his sentence, that provision of the Unified Code is applicable here. Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.

The People argue against the application of that provision to the instant case, stating (a) that the Chupich case applies solely to sentencing and does not apply, as here, to matters of probation, citing People v. Brezezinski, 15 Ill.App.3d 509, 305 N.E.2d 32, and (b) that the recent amendment to section 5 — 6—3 of the Code enacted by Public Act. 78— 939 permitting the imposition of a sentence of up to 6 months in jail as a condition of probation took effect November 17, 1973, and controls the instant appeal.

The Chupich case applies to the instant situation, since both cases involve the question of terms of sentence. (See People v. Claudio, 13 Ill. App.3d 537, 300 N.E.2d 791.) The Brezezinski case, on the other hand, deals with the question of whether the requirement in the new Code relative to pre-sentence investigation reports may be made applicable to cases not yet finally adjudicated, within contemplation of the Chupich decision.

With regard to the question of whether Public Act 78 — 939 is applicable to the instant situation, that Act, although signed into law by the Governor on November 17, 1973, does not become effective until July 1, 1974. Public Act 78 — 939 neither contains an express provision that it was to become effective on the date that it was signed into law, nor does it fall within the non-retroactively effective statutory provisions dealing with the effective date of statutes which could have rendered it effective on November 17, 1973. See Public Act 77 — 147 (Ill. Rev. Stat. 1971, ch. 131, par. 21, effective July 2, 1971), and as amended by Public Act 78 — 85 (Ill. Rev. Stat. 1973, ch. 131, pars. 21-26, effective July 13, 1973); Public Act 78 — 939 was “passed” by the legislature, for the purposes of the foregoing statutes, prior to July 1, 1973. See also People v. Wheatley, 17 Ill.App.3d 657, 308 N.E.2d 129; People v. Braddock, 17 Ill. App.3d 73, 308 N.E.2d 74 (abstract opinion).

For these reasons, each portion of the respective sentences imposed upon defendant requiring incarceration in the county jail as a condition of his probation is vacated and the judgments of conviction, as so modified, are affirmed.

Judgments affirmed as modified.

Mr. JUSTICE HALLETT took no part in the consideration or decision of this case.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Barrett, Defendant-Appellant.
    (No. 59003;
    First District (3rd Division)
    May 16, 1974.
    James J. Doherty, Public Defender, of Chicago (Lawrence J. Czepiel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Theodore J. Schmidt, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

MEJDA, J., took no part.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Erwin Klein, Defendant-Appellant.
    (No. 59017;
    First District (4th Division)
    May 22, 1974.
    O’Brien and Trittipo, Ltd., of Chicago (Donald V. O’Brien and Peter B. Carey, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Mary Ellen Dienes, and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was found guilty of operating a motor vehicle in excess of the maximum weight permitted by law, in violation of section 15 — 111 of the Illinois Motor Vehicle Code. (Ill. Rev. Stat. 1971, ch. 95%, § 15 — 111.) The defendant was fined the sum of $10,270.00 plus costs.

The only issue presented on appeal is whether the statutory exemption set out in section 15 — 111(e) of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1971, ch. 95%, § 15 — 111(e)) is applicable to the defendant.

On January 7, 1972, the defendant, Erwin Klein, was arrested and charged with operating a motor vehicle in excess of the maximum weight permitted by law, and in excess of the maximum width permitted, in violation of sections 15 — 111 and 15 — 102 of the Illinois Motor Vehicle Code. Prior to trial the defendant made an offer of proof as an affirmative defense to the overweight charge that at the time of his arrest he was transporting equipment needed for an emergency repair of a public service facility and, therefore, came under the statutory exemption provided by section 15 — 111(e) (Ill. Rev. Stat. 1971, ch. 95%, § 15 — 111(e)). More specifically, the defendant requested an opportunity to demonstrate the vehicle in question, a lowboy, upon which was loaded a Northwest 80D backhoe, was being transported in order to repair certain trench cave-ins which had occurred during the course of the performance of a contract between the defendant’s employer and the Metropolitan Sanitary District of Greater Chicago. The trial judge rejected the defendant’s offer of proof on the ground the statutory exemption applied only to vehicles operated by a public utility when transporting equipment for the emergency repair of “existing” public works. Following the trial judge’s ruling the defendant waived a jury trial and proceeded to trial before the court. The defendant was found guilty of both the overwidth and overweight charges and was fined $10,270.00 plus costs on the overweight charge. The defendant does not contest the finding as to the overwidth charge.

The defendant contends the court erred in ruling the statutory exemption applies only where repair machinery is being transported to an “existing” public works. In support of his contention, the defendant relies on section 15 — 111(e) of the Illinois Motor Vehicle Code, which states:

“Weight limitations shall not apply to vehicles (including loads) operated by a public utility when transporting equipment required for emergency repair of public service facilities or properties.” (Ill. Rev. Stat. 1971, ch. 95%, § 15 — 111(e).)

Defendant maintains the word “existing” does not appear in the statute and, therefore, cannot be considered a condition precedent to the applicability of the exemption set out in section 15 — 111(e).

We believe the statutory exemption prescribed in section 15— 111(e) of the Illinois Motor Vehicle Code is applicable to the defendant in the instant case. No restrictive language limiting the applicability of the exemption to facilities already in existence appears in the statute. It is well settled, that in the absence of an expressed legislative intention to the contrary, courts will assume that statutory words were intended to convey their ordinary and popularly understood meanings. (People v. Blair (1972), 52 Ill.2d 371.) An examination of the statute in question clearly indicates the intent of the legislature was to permit public utilities to meet their responsibilities and respond immediately to unanticipated emergencies for the protection of the public. We construe the statute to include those situations where emergency repair of a public service facility then under construction is necessary. Considering the purpose of the statutory exemption, we find no difference between an emergency arising in connection with an existing facility and an emergency which arises during the construction of such a facility.

A review of the record in the case at bar reveals no disagreement between the parties that the Metropolitan Sanitary District of Greater Chicago in constructing and operating a sanitary storm sewer is a public utility within the meaning of the Illinois Motor Vehicle Code. Further, there is no doubt that the sudden and unexpected cave-ins of the trenches constituted an emergency situation requiring immediate repair in order to prevent serious harm to the men worldng at the job site and to prevent interference with the completion of the public service facility. We conclude, therefore, section 15 — 111(e) of the Illinois Motor Vehicle Code was applicable to the defendant at the time of his arrest.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed.

Reversed.

BURMAN and JOHNSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lester Lewis et al., Defendants-Appellants.
    (Nos. 59035, 59116 cons.;
    First District (5th Division)
    May 17, 1974.
   PER CURIAM.

James J. Doherty, Public Defender, of Chicago (Joseph M. Dvorak, III, and Ira Churgin, Assistant Public Defenders, of counsel), for appellants.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Lawrence D. O’Gara, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank M. Stankovich, Defendant-Appellant — (The City of Evanston, Intervenor-Appellee.)
    (No. 59524;
    First District (5th Division)
    May 17, 1974.
    Douglas W. Graham, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant appeals from the denial of his petition to vacate an order for the destruction of a gun which had been seized by police at the time of his arrest for unlawful use of a weapon. (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a).) He contends that the court below did not have the authority to issue such an order.

Defendant was arrested by the Evanston Police Department and prosecuted pursuant to an amended complaint alleging that he “knowingly possessed a Game Getter shotgun *** with a barrel length of less than 18 inches with the intent to use said weapon unlawfully against” Officer James Smith and two other individuals. The weapon was seized by arresting officers. Found not guilty of the criminal charges, defendant sued for recovery of the gun. During the course of the recovery proceeding he discovered that in the criminal trial the court had ordered his gun destroyed. He petitioned the court to “delete the order of destruction to allow the pending civil action to proceed to a final determination of Petitioners right to the ‘Game Getter.’” He alleged that the destruction order was erroneous as a matter of law.

A hearing was held on the petition at which time defendant called James Bell, Jr., a gunsmith, as an expert witness. Bell testified that the “Game Getter” had two 12-inch barrels, that while the top barrel was rifled, the bottom barrel was not, and that the gun was capable of firing shotgun shells. He estimated that the weapon was over 50 years old and that fewer than 10,000 guns of this model had been manufactured. No other testimony was heard.

Noting that the length of the barrel and the bore determine whether a gun of this nature is “legal or illegal,” the court ruled that it was unlawful for defendant to possess the “Game Getter” and denied defendant’s petition and directed that the gun be destroyed.

OPINION

It is defendant’s contention that there is no authority for a court to confiscate a gun and order its destruction absent a showing that there has been a conviction for unlawful use or unlawful possession of a weapon. (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 6.) We disagree.

The circuit court is vested by the Constitution with plenary jurisdiction to adjudicate any justiciable matter. (Ill. Const., art. VI, sec. 9.) A destruction order, of course, is necessarily dependent upon the power to confiscate. Defendant does not deny that the grant of authority found in the Constitution extends to the power of a court to order the confiscation of articles of personal property it determines to be contraband per se. (See People v. Moore, 410 Ill. 241, 102 N.E.2d 146; cf. Ill. Rev. Stat. 1971, ch. 38, par. 108 — 2.) Per se contraband consists of those items whose possession alone constitutes a criminal offense. (One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693; People v. Moore; People v. Steskal, 55 Ill.2d 157, 302 N.E.2d 321.) Even if improperly seized, such articles need not be returned since to do so would frustrate a clear expression of public policy. United States v. Jeffers, 342 U.S. 48; One 1958 Plymouth Sedan v. Pennsylvania; People v. Steskal.

In the case at bar it was adduced at an evidentiary hearing that defendant’s “Game Getter” was a firearm with a 12-inch, smooth-bore barrel capable of firing shotgun shells. In Illinois the mere possession of a shotgun with a barrel less than 18 inches in length subjects an individual to criminal liability. (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(7).) The underlying rationale of this statute is that firearms of this nature are so inherently dangerous to human life that they constitute a hazard to society. (See Committee Comments to Ill. Rev. Stat. 1971, ch. 38, art. 24.) In view of this clear expression of public policy, the trial judge was correct in holding that defendant’s “Game Getter” was an “illegal” weapon. It is contraband per se and consequently the court below had the authority to order that the gun be confiscated and destroyed. The order confiscating the gun and ordering its destruction is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       The record does not indicate the present status of defendant’s replevin action.

       In making this determination, the court was apparently referring to Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(7), which provides, in pertinent part, that:
      “(a) A person commits the offense of unlawful use of weapons when he knowingly:
      ***
      (7) *** possesses or any shotgun with a barrel less than 6 carries 18 inches in length ***.”

       This provision, dealing with the confiscation and destruction of weapons, states:
      “(a) Upon conviction of a violation of Section 24 — 1 or Section 24 — 3.1 of this Article, any weapon seized shall be confiscated by the trial court.
      (b) * * * All other confiscated weapons when no longer needed for evidentiary purposes, shall in the discretion of the trial court, be destroyed, or preserved as property of the governmental body whose police agency seized the weapon.”


text:
    The People of the State of Illinois, Respondent-Appellee, v. John H. Rush, Petitioner-Appellant.
    (No. 58016;
    First District (1st Division)
    May 20, 1974.
    James J. Doherty, Public Defender, of Chicago (Ian Levin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Elmer C. Kissane, Russell Hartigan, and Frederic Chaimson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court on the Petition for Rehearing:

On January 30, 1969, the defendant, John H. Rush, filed his verified petition under the Illinois Post-Conviction Hearing Act. (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 1.) After argument by counsel, but without an evidentiary hearing, the trial court granted the State’s motion to dismiss.

The basis of the petition is contained in that portion which is captioned “Argument”:

“The question in this petition is whether petitioner because of the intimidation of the State’s Attorney and the coercion, browbeating, in bringing up his past record and convictions and sentences. The incompetence of his attorney whom [sic] allowed these violations to occurred [sic] at the trial and not to challenge the violations. Also his attorney colloborated [sic] with the State’s Attorney. Furthermore petitioner was never confronted with the complainant who was the accuser of the alleged charges. The State’s Attorney made mentioned [sic] of a statement in open court which was suppose [sic] to be have been given by the accuser, but petitioner never did see any statement. These were direct constitutional violations. The State’s Attorney made ascertions [sic] that under the circumstances that if petitioner stood trial if he was found guilty then he would receive the maximum penalty for the crime of rape. Petitioner changed his plea from not guilty to guilty after these ascertions [sic]. The serious charge which was rape was dropped. It was a grave injustice in this and not knowing the facts of his constitutional rights there left no other alternative, but for petitioner to do but to change his plea.”

On March 31, 1967, the defendant entered a plea of guilty to robbery, deviate sexual assault and attempt rape. The State nolle prossed Count I of the indictment, which charged rape.

The evidence, which was introduced by stipulation, showed that the complainant, who was present in court, was accosted by the defendant at 2 A.M. The evidence clearly established that he robbed her, forced her to perform an act of oral copulation and attempted to rape her, but was unsuccessful. He was shot and captured at the scene. He had been sentenced to the penitentiary in 1955 for rape and robbery; and in 1963 for possession of narcotics. In 1966 he was sentenced to the House of Correction for battery and for petty theft.

The trial court has a right in passing on a motion to dismiss to refer to the record of the proceedings before it. (People v. Morris, 43 Ill.2d 124, 251 N.E.2d 202.) And the court could have concluded that the record alone refuted most, if not all, of the defendant’s contentions. The complainant was in court; no statement was referred to or introduced; the previous record of the defendant was properly presented to the court; and the State understandably nolle prossed the rape count.

But apart from the question of the trial court’s determination of facts without an evidentiary hearing, it is clear that the petition is insufficient on its face. The principal assertion is that he had been threatened by the State’s Attorney, who allegedly told him if he was found guilty of rape he would receive the maximum sentence. This allegation is similar to that made in People v. Covington, 45 Ill.2d 105, 109, 257 N.E.2d 108, in which the defendant’s petition alleged that his plea of guilty had been coerced by a police officer who threatened to arrest the defendant’s wife for the same robbery and to take the defendant’s infant child from him if he did not plead guilty. The court said:

“Although the amended petition was verified, no affidavit or other evidence was filed in support of this allegation as the Act requires, and in our opinion the bare allegations of the petition were not sufficient to require a hearing on this issue.”

At the post-conviction hearing in this case the attorney for the defendant told the court:

“Your Honor, for the record, we did in November of 1970 ask Mr. Rush for substantiation of his allegations, and we asked him the time, place and who was present at these events. In addition, any proof that he would have that there is collaboration between the State’s Attorney and his attorney, we attempted to elicit these from him so we could attach affidavits, but we did not get any answers.”

For these reasons we conclude that the trial court properly dismissed the petition. The order is affirmed.

Order affirmed.

BURKE and GOLDBERG, JJ., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Marion Holmes, Defendant-Appellee.
    (No. 58606;
    First District (3rd Division)
    May 16, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Joseph Romano, and Larry Thompson, Assistant State’s Attorneys, of counsel), for the People.
    Leo E. Holt, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

The State, pursuant to Supreme Court Rule 604 (a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1)), brings this interlocutory appeal from an order of the circuit court of Cook County sustaining defendant’s motion to quash a search warrant and suppress certain evidence. The trial court found that the search warrant was invalid because it failed to state the date of the offense, and because it failed to describe with sufficient particularity the items to be seized.

On June 13, 1971, an officer of the Chicago Heights Police Department appeared before a judge and requested a warrant to search the interior of defendant’s vehicle. The complaint for the search warrant identified the items to be seized in the auto as

* * an undetermined amount of United States Currency and the weapon used in the armed robbery of the Kroger Food Store at Joe Orr Road and Dixie Hwy. in the City of Chicago Heights * * * which have been used in the commission of, or which constitute evidence of the offense of Armed Robbery.”

The complainant therein stated that he had probable cause to believe the items listed above were on the person and premises based upon the following facts:

“Complainant received radio dispatch of a armed robbery of the Kroger Food Store at Joe Orr Road and Dixie Hwy. and that the vehicle used was a black over red Pontiac possible Illinois 71 plate number-6772, also the offender was the same subject who had heldup the store on one other occasion. At 1200 Wentworth Ave. in the City of Chicago Heights approximately ten minutes after the robbery complainant observed one 1966 Black Vinyl over maroon in color, Pontiac CTO, bearing Illinois 71 plate “PF6372” parked unoccupied. The hood of said vehicle was hot to the touch. Victim of the robbery at the Kroger Food Store was brought to 1200 Wentworth Ave. where he (victim) stated the above mentioned vehicle was identical to the vehicle used in the robbery of the store.
Also complainant recognized the vehicle from an extremely detailed description given by a witness to an Armed Robbery of another Kroger Food Store at 26th Street and Chicago Road in the City of Chicago Heights which occurred on 7 May 71 which complainant investigated. At this time above mentioned vehicle was taken into police custody and shown to the witness, one Mark Graziani of 3534 Wallace St., Steger, Illinois. Graziani stated that he was positive that this was the vehicle used in the armed robbery of the Kroger Food Store at 26th Street and Chicago Road on 7 May 71.”

The judge issued the search warrant, commanding the complainant to search defendant’s automobile and seize “an undetermined amount of United States Currency and the weapon used in the armed robbery of the Kroger Food Store at Joe Orr Road and Dixie Hwy.” A search of the auto yielded, among other items, $1,055 in cash and a Colt .38-caliber revolver. Defendant was arrested several weeks later.

At a hearing on his pre-trial motion to quash the search warrant and suppress the physical evidence, defendant argued that the failure of the complaint to specify the date of the offense was fatal to an independent determination of probable cause. He also contended that the State could not rely on the date of the earlier offense set forth in the complaint because its remoteness from the date the warrant was issued rendered the information stale. In a separate argument, defendant maintained that the references in the warrant to the objects to be seized were not described with sufficient particularity to conform to constitutional requirements.

At the conclusion of the hearing, the trial judge ruled that both positions of defendant were meritorious. Accordingly, tire judge quashed the warrant and suppressed the physical evidence.

The State first contends that the trial judge erred in holding that the complaint failed to disclose sufficient facts to constitute probable cause justifying the issuance of the search warrant. Conceding that the complaint and warrant omitted the date of the armed robbery prompting the request for the warrant, the State argues that the fact that the complaint for the search warrant was drafted in the present tense was sufficient to enable the judge issuing the warrant to infer that the crime had occurred in the recent past. Alternatively, the State urges that the reference in the complaint to a prior armed robbery which had taken place 37 days prior to the request for and issuance of the search warrant was sufficient to constitute probable cause to search the vehicle.

The leading case rejecting the “present tense” argument is Rosencranz v. United States (1st Cir. 1966), 356 F.2d 310. Tire court explained the reasons for its holding at pp. 316-317:

“The present tense is suspended in the air; it has no point of reference. It speaks, after all, of the time * * * which could have been a day, a week, or months before the date of the affidavit. To make [an inference] that the undated information speaks as of a date close to that of the affidavit and that therefore the undated observation made on the strength of such information must speak as of an even more recent date would be to open the door to the unsupervised issuance of search warrants on the basis of aging information. Officers with information of questionable recency could escape embarrassment by simply omitting averments as to time, so long as they reported that whatever information they received was stated to be current at that time. Magistrates would have less opportunity to perform their “natural and detached” function. Indeed, if the affidavit in this case be adjudged valid, it is difficult to see how any function but that of a rubber stamp remains for them.”

Many other courts have utilized similar reasoning in rejecting the “present tense” argument. (United States v. Boyd (6th Cir. 1970), 422 F.2d 791; Kohler v. United States (9th Cir. 1925), 9 F.2d 23; People v. Chippewa Circuit Judge (1924), 226 Mich. 326, 197 N.W. 539; Staker v. United States (6th Cir. 1925), 5 F.2d 312; Dandrea v. United States (8th Cir. 1925), 7 F.2d 861.) Although a few courts have upheld the State’s “present tense” contention (See People v. Nelson (1959), 171 Cal.App.2d 356, 340 P.2d 718; Hanson v. State (1933), 55 Okla. Crim. 138, 26 P.2d 436), these latter decisions fail to disclose the reasoning for their holdings and neglect to address themselves to the possible dangerous implications of their conclusions so persuasively articulated in Rosencranz. We, therefore, subscribe to the Rosencranz holding, and reject the State’s argument that the failure to specify the date of the crime should not be deemed fatal to the search warrant because the complaint was drafted in the present tense.

The State argues alternatively that the reference in the complaint to the armed robbery occurring 37 days prior to the issuance of the search warrant was sufficient to overcome the defects outlined above and to establish the facts supporting a finding of probable cause.

Probable cause exists where facts and circumstances within the knowledge of the affiant are sufficient in themselves to warrant a man of reasonable caution to believe the law is being violated, and that evidence is presently on the premises to be searched. (People v. Francisco (1970), 44 Ill.2d 373, 255 N.E.2d 413.) Although there is no strict rule in Illinois as to the number of days which may elapse from the time of the observed offense to the time of the making of the affidavit or complaint upon which the warrant is based, it is axiomatic that the shorter the interval in time, the more likely a conclusion of probable cause will be sustained. (People v. Holton (1927), 326 Ill. 481, 158 N.E. 134.) In cases involving the sale of narcotics, intervals of 10 days (People v. Holton) and 8 days (People v. Montgomery (1963), 27 Ill.2d 404, 189 N.E.2d 327) have been held reasonable and sufficient to sustain findings of probable cause. Although a delay of 49 days has been deemed reasonable (People v. Dolgin (1953), 415 Ill. 434, 114 N.E.2d 389), in that case the court specifically held that the facts disclosed a crime of a continuing nature. Also see People v. McCoy (1973), 10 Ill.App.3d 1054, 295 N.E.2d 483.

In the present case, there is neither a continuing crime nor a continuing course of conduct. There is merely a complaint for a search warrant reciting that the police are in custody of a vehicle which has been identified as having been used in an armed robbery 37 days prior to the presentment of the complaint. We must presume from the complaint that the automobile was identified by the witness on the date of the mentioned robbery. The only reasonable conclusion to be drawn is that any money seized or weapon employed in the commission of the crime would not be in the automobile after the passage of so long a time. Since the facts stated in the complaint do not supply sufficient information to enable a neutral and detached magistrate to conclude that there was probable cause to believe the items to be seized were in the vehicle on the date the complaint was presented to the magistrate, the ruling of the trial judge quashing the search warrant for lack of probable cause was correct.

The trial court also correctly held that the search warrant was constitutionally defective in that its recital of the items to be seized did not describe the objects with sufficient particularity.

The constitutional clause requiring the search warrant to describe particularly the items to be seized was inserted to preclude the previous widespread practice of issuing general search warrants. (People v. Elias (1925), 316 Ill. 376, 147 N.E. 472.) The clause represents a recognition by our government that it is a natural right of man to be free from unreasonable searches and seizures. (See Go-Bart Co. v. United States (1931), 282 U.S. 344.) In determining whether a warrant describes the objects of the search sufficiently, our supreme court, in People v. Prall (1924), 314 Ill. 518, 145 N.E. 610, stated at p. 523:

“A minute and detailed description of the property to be seized is not required, but the property must be so definitely described that the officer making the search will not seize the wrong property. * * * [The warrant must give the officer] information by which he could select certain property within the description in the warrant and refuse to take other property equally well described in the warrant.”

In our view, for the purposes of a search warrant, the expression “undetermined amount of United States Currency” is meaningless. It fails to provide any distinction between funds obtained in the robbery and any other money. Although a precise inventory may not have been possible immediately after the robbery, nevertheless a general description of the denominations and an approximate amount could have been ascertained.

Similarly, the term “weapon” is clearly too vague to justify the issuance of a search warrant. A weapon is a generic term that could apply to a variety of instruments. It is such a broad term that officers executing the warrant had unlimited discretion as to what they could seize. More information was necessary to make the search warrant constitutionally adequate.

The State in this court also maintains that the search of the vehicle was permissible without a valid search warrant. The State, however, did not make this argument in the trial court. Indeed, it rejected the trial judge’s invitation to offer testimony regarding the existence of exigent circumstances which might have justified the search without a warrant. Since no testimony was adduced regarding the possible existence of such exigent circumstances, we are precluded from arriving at an independent determination of the validity of a warrantless search.

Accordingly, we hold that the trial court correctly quashed the search warrant and suppressed the evidence thereby seized. The order of the circuit court of Cook County is affirmed.

Order affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ricky Birge, Defendant-Appellant.
    (No. 73-235;
    Fifth District
    June 11, 1974.
    Robert E. Farrell and Howard B. Augustus, both of the State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Philip G. Feder, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On a negotiated plea of guilty in the Circuit Court of St. Clair County defendant was convicted of burglary. He was first sentenced to a 2-year term of periodic imprisonment in the St. Clair county jail with the provision that he would be released during school hours to continue his education in a vocational training school. When he failed to return to the jail on the first day that he was released for this purpose he had to be apprehended on a court order. His periodic imprisonment was then revoked and he was sentenced to the penitentiary for a term of not less than 3 nor more than 7 years.

It is from this sentence that defendant appeals, contending that the sentence was excessive and that the minimum term should be reduced to 1 year, or, in the alternative, to 2 years and 4 months in compliance with the Unified Code of Corrections. Ill. Rev. Stat. 1973, ch. 38, par. 1005— 8 — 1(c)(3).

Burglary is a Class 2 felony and for this offense the Unified Code provides that “the minimum term shall be one year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum * *

Because the minimum sentence imposed did exceed one-third of the maximum, contrary to the express provisions of the Code, defendant’s sentence is set aside and the cause is remanded with directions to re-sentence in compliance with the Unified Code of Corrections.

Accordingly, the judgment of the Circuit Court of St. Clan County revoking probation is affirmed, the sentence set aside, and the cause remanded with' directions to impose a new sentence.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond R. Crislip, Defendant-Appellant.
    (No. 72-357;
    Fifth District
    June 13, 1974.

      Robert E. Farrell and Richard E. Cunningham, both of State Appellate Defenders Office, of Mt. Vernon, and William J. Becker, Senior Law Student, for appellant.
    Michael K. Grabowski, State’s Attorney, of Pinckneyville, for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant was convicted in Perry County upon his plea of guilty to one count of burglary and two counts of theft.

The defendant subsequently filed a pro se post-conviction petition which was later amended by appointed counsel. The amended petition contended that: (1) The defendant was denied effective assistance of counsel, (2) defendant was not fully admonished of his constitutional rights when he pled guilty, and (3) the guilty plea was coerced by threats made by the sheriff’s department of Perry County. The post-conviction petition was dismissed by the court without an evidentiary hearing on the ground that the defendant’s allegations were thoroughly refuted by the record of the guilty plea proceeding.

Generally, where a post-conviction claim of denial of constitutional right is founded on evidence not a part of the record, an evidentiary hearing should be held. (People v. Airmers, 34 Ill.2d 222, 215 N.E.2d 225.) If the post-conviction petition is demonstrated to be non-meritorious on the basis of what is revealed in the record, however, the petition may be dismissed without an evidentiary hearing. People v. Spicer, 47 Ill.2d 114, 264 N.E.2d 181.

Appellant first contended in his post-conviction petition that the defendant spoke to his appointed counsel on only one occasion and that counsel did not inform the defendant of any of his rights. The defendant claims that he was therefore denied the effective assistance of counsel. The record reveals, however, that before the plea of guilty was accepted, defense counsel told the court that he had informed the defendant of his rights. The defendant concurred in that statement and said that he had no complaints about his representation. He also told the court that he was satisfied that his attorney had spent enough time on the case and that he was fully advised of his rights. We believe that the record sufficiently refutes the claim that the defendant was denied effective assistance of counsel so that an evidentiary hearing was not required on that issue.

Appellant secondly contended in his post-conviction petition that the trial court did not admonish the defendant of his constitutional rights before he pled guilty. This is completely disproved by the record. The defendant does not contend in this appeal, in fact, that the court erred in fading to hold an evidentiary hearing on that question.

We believe that the third post-conviction assertion, however, necessitated the holding of an evidentiary hearing. The defendant maintains that he was induced to plead guüty by police threats that, if he did not do so, a companion of his would be jailed and that person’s chüd would be placed in a public care home.

The transcript of the proceedings reveals that before the court accepted the defendant’s guilty plea, the defendant responded negatively when asked whether any force, threats, or promises were used to induce the plea. The State insists that this portion of the record sufficiently rebuts the defendant’s assertion. We disagree.

The Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122 — 1 et seq.), provides for a proceeding whereby a prisoner can seek redress from his conviction when he claims a substantial denial of his constitutional rights. Both the statute and the pertinent case law establish that the proceeding is commenced by filing a petition that sets forth factual allegations that would translate into a substantial denial of constitutional rights if proven. Mere conclusions of law to the effect that constitutional rights were denied is not sufficient. In addition, affidavits and any other evidence supporting the factual allegations must accompany the petition or the petition must explain the absence of such evidentiary support. The State may answer the petition or move to dismiss. Sections 122 — 5 and 122 — 6 of the Act give the courts considerable procedural discretion and several cases have helped to define the borders of that discretion. In People v. Jennings, 411 Ill. 21, a case taken to the United States Supreme Court and remanded to the Illinois Supreme Court, guiding principles were written which shed some light on this case:

“The Illinois Post Conviction Hearing Act * * * [provides] a remedy for any person who is imprisoned in the penitentiary in violation of his constitutional rights. * * * * * * the trial court shall examine the petition with a view to determining whether the allegations of fact, liberally construed in favor of the petitioner, and taken as true, make a showing of imprisonment in violation of the Federal or State constitution ft ft ft
If the petition so charges, the trial court should ascertain whether it is supported by accompanying affidavits and if not, whether the absence of such affidavits is sufficiently explained and excused by the petitioner’s own sworn statements. Where there are no supporting affidavits and their absence is neither explained nor excused, the trial court should either dismiss the petition or grant a further time within which such affidavits may be obtained.
A petition meeting tírese requirements [substantial allegations and affidavits] is sufficient to invoke the Act. Such a petition calls for answer from the State’s Attorney and a hearing on the merits. * * *” 411 Ill. 21, 26.

From this case and the statute, the threshold issue emerges: Did Crislip’s petition allege facts which if proven would show Crislip was imprisoned in violation of his constitutional rights?

The trial court decided the amended petition for a post-conviction hearing was sufficient. Although the state contends in its brief that Crislip’s amended petition did not allege facts which established a prima facie denial of constitutional rights, the State did not argue that the petition per se was insufficient in the trial court. Therefore this contention will not be entertained for the first time on appeal. People v. Washington, 38 Ill.2d 446, 232 N.E.2d 738.

Although several cases have concluded that a sufficient petition requires a hearing (People v. Jennings, supra; People v. Airmers, 34 Ill.2d 222; People v. Rose, 43 Ill.2d 273, 253 N.E.2d 456, appeal after remand, 48 Ill.2d 300, 268 N.E.2d 700), other cases have concluded that a trial court can dismiss a petition on the basis of not only what appears in the pleadings but also what appears in the transcripts of the proceedings. (People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455; People v. Bliss, 44 Ill.2d 363, 255 N.E.2d 405:) However, if a petition was based upon matters outside the record, e.g., a coerced guilty plea, it has been held that these claims cannot be adjudicated on the pleadings and record alone; the petition is entitled to a hearing. People v. Thomas, 38 Ill.2d 321, 325; contra, People v. Harris, 50 Ill.2d 31; People v. Spicer, 47 Ill.2d 114.

Clearly, the trial court did not err in dismissing those issues in Crislip’s petition which could be resolved by the transcript. But, the issue of whether or not Crislip’s guilty pleas were in fact coerced concerns matters outside the record. The exact, question we must decide is whether defendant lost his right to a post-conviction hearing when he pled guilty, but prior thereto he answered that his plea was voluntary.

It is well settled that a coerced guilty plea deprives a defendant of liberty without due process of law even though facts may be independently established to verify guilt. A guilty plea obtained by wrongful coercion will not support a conviction. Therefore an allegation that a guilty plea was coerced (despite assertions on the record to the contrary.) raises a substantial constitutional issue and clears the way for a collateral attack on the conviction. (Machibroda v. United States, 368 U.S. 487, 7 L.Ed.2d 473, 82 S.Ct. 510.) Logically, a statutorily authorized collateral attack, e.g., a Federal habeas corpus proceeding on an Illinois post-conviction hearing, cannot be thwarted by the doctrine of res judicata; an allegedly void judgment cannot preclude a collateral investigation to determine whether or not the judgment is void. It may be that Crislip’s pleas and the concomitant assertions of voluntariness were in fact coerced. The trial court’s pro forma inquiry into the voluntariness of the pleas should not impede an evidentiary hearing whereby Crislip could present evidence to prove coercion.

The Illinois Post-Conviction Hearing Act was intended to provide State prisoners with an effective post trial procedure through which the Illinois courts could determine whether or not substantial constitutional rights had been violated. (People v. Dale, 406 Ill. 238.) Its title captures the essence of the statute, i.e., to establish a hearing in which a conviction may be collaterally attacked. If a State does not provide such a remedy, however, the Federal courts have jurisdiction under the Federal habeas corpus statute (28 U.S.C., par. 2241 et seq.) to fill the void. Fay v. Noia, 372 U.S. 391, 9 L.Ed.2d 837, 83 S.Ct. 822; Townsend v. Sain, 372 U.S. 293, 9 L.Ed.2d 770, 83 S.Ct. 745.

However, in People v. Harris, 50 Ill.2d 31, 276 N.E.2d 327, and People v. Spicer, 47 Ill.2d 114, 264 N.E.2d 181, the Illinois Supreme Court affirmed the dismissal of amended post-conviction petitions without affording any evidentiary hearings on the basis of the trial records.

In Spicer the defendant’s post-conviction petition alleged that a guilty plea had been induced by an unfulfilled promise that the defendant would receive probation. The petition was dismissed without an evidentiary hearing. The supreme court held that the dismissal was justified because the defendant had denied at tire time he entered his plea of guilty that any promises were made to him, the defendant did not complain when he was sentenced to a term of imprisonment and the defendant’s subsequent motion to withdraw his plea of guilty did not include an allegation that his plea was induced by promises.

In Harris the defendant’s post-conviction petition alleged that the guilty plea had been coerced because defense counsel, who had been retained, threatened to withdraw from the case if a guilty plea was not entered. The record revealed, however, that the defendant informed the court before his guilty plea was accepted that he was satisfied with the representation of his attorney and that no threats or force were used to induce the guilty plea. In both Spicer and Harris the supreme court paraphrased the following language from People v. Smith, 42 Ill.2d 547, 248 N.E.2d 85:

“It seems incredible that any fact-finder would believe defendant if he now testified in support of the allegation of police brutality, and defendant’s testimony would have been of hide, if any, value at the hearing.”

While defendant’s testimony in support of his post-conviction petition may have been, in light of the entire record, incredible and unbelievable in Spicer and Harris, the same is not necessarily true in the instant case. If the defendant did plead guilty because he feared reprisal by tire sheriff’s department if he did not do so, that fear would very likely impel him to answer negatively when asked by the trial judge whether his plea was induced in any way. For that reason, the defendant’s negative response does not belie his post-conviction contention to the same degree as did the records in Spicer and Harris. In Spicer, after the defendant had been sentenced to a term of imprisonment, there was nothing to prevent him from informing the judge that he had been promised probation. In Harris, if the defendant believed that his retained counsel was forcing him to plead guilty, nothing precluded him from hiring a new attorney or informing the judge of the situation when he was asked whether he was satisfied with his representation. It cannot be stated with certainty in the instant case, however, that the defendant was not deterred from answering truthfully when asked by the trial judge whether his guilty plea was induced by threats, force or promises. We hold, therefore, that the defendant’s post-conviction petition should not have been dismissed without an evidentiary hearing.

For the foregoing reasons, the judgment of the circuit court of Perry County is reversed and the cause remanded with directions that an evidentiary hearing be held.

Reversed and remanded with directions.

EBERSPACHER and CREBS, JJ., concur.