author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM JON WISEMAN, JR., Defendant-Appellant.
    Fifth District
    No. 5—88—0648
    Opinion filed March 20, 1990.
    Rehearing denied April 27, 1990.

      Daniel L. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori L. Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People. *
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, William Jon Wiseman, Jr., appeals from his conviction of aggravated battery after a bench trial in the circuit court of Randolph County. Defendant was sentenced to four years’ imprisonment. We affirm.

In July of 1987, defendant was housed in the Perry County jail awaiting disposition of Perry County charges and a petition to revoke his probation. On the 30th of that month, defendant was transferred to the Randolph County jail for holding while the Perry County jail was being painted. During his stay in the Randolph County jail, defendant struck, kicked and bit two Randolph County jail personnel. Defendant was- charged on August 9, 1987, with aggravated battery in connection with this incident. On August 11, bond was set, and on August 27, probable cause was found after a preliminary hearing. Defendant posted no bond. On September 3, 1987, defendant was returned to the Perry County jail. The Perry County charges against defendant subsequently were dismissed on the 16th, but the petition to revoke probation was heard and granted. On November 24, 1987, defendant was sentenced to four years’ imprisonment for violating probation and transferred to the Department of Corrections the following day. On July 29, 1988, defendant was brought to court in Randolph County pursuant to a writ of habeas corpus ad prosequendum, at which time defendant was granted a continuance in connection with the charges then pending in Randolph County. Defense counsel subsequently filed a motion to dismiss these charges based on a violation of defendant’s speedy trial rights pursuant to section 103— 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(a)). The trial court denied defendant’s motion, ruling that because section 3 — 8—10 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 8—10), entitled “Intrastate Detainers” (hereinafter Intrastate Detainers Act), applied, Randolph County never had constructive custody of defendant. As defendant failed to invoke the provisions of the Intrastate Detainers Act, he was not entitled to dismissal of the Randolph County charges. Defendant subsequently was convicted of one count of aggravated battery and sentenced to four years’ imprisonment.

Defendant first argues on appeal the trial court erred in denying his speedy trial motion. Defendant believes because he was served with a complaint and was not free to leave until he posted bail, he was “in custody” on the Randolph County charges before the proceedings in Perry County terminated. Therefore, once the Perry County proceedings terminated on November 24, 1987, the speedy trial period started running. As no further action was taken on the Randolph County charges until some 191 days later, defendant asserts his conviction for aggravated battery should be vacated. We disagree.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(a)), entitled “Speedy Trial” (hereinafter Speedy Trial Act), provides that every person in custody in this State shall be tried within 120 days of the date he was taken into custody. Subsection (b) further provides that persons on bail or recognizance shall be tried within 160 days from the date they demand trial. (Ill. Rev. Stat. 1987, ch. 38, par. 103—5(b).) Failure to try an accused within this statutory time frame results in the discharge of the accused. (See, e.g., People v. Lykes (1984), 124 Ill. App. 3d 604, 606, 464 N.E.2d 849, 851.) A defendant, however, who is in custody awaiting trial in one county with a charge pending against him in another county is not deemed in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he then is either returned to or held in custody for the second county. (People v. Davis (1983), 97 Ill. 2d 1, 13, 452 N.E.2d 525, 530; People v. Clark (1968), 104 Ill. App. 2d 12, 20, 244 N.E.2d 842, 846.) This is true even if the defendant already has appeared before the court in the second county but been returned to the first county. The second county does not have custody until the proceedings in the first county are concluded. (See Davis, 97 Ill. 2d at 13-14, 452 N.E.2d at 530-31; People v. Wentlent (1982), 109 Ill. App. 3d 291, 297, 440 N.E.2d 296, 300; People v. Gardner (1982), 105 Ill. App. 3d 103, 109-12, 433 N.E.2d 1318, 1322-24.) A further qualification of an accused’s right to a speedy trial is found in section 3 — 8—10 of the Uniform Code of Corrections, titled “Intrastate Detainers” (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 8—10). Under this section, the provisions of section 103 — 5(b) are made applicable to a person, except for those sentenced to death, committed to any institution or facility or program of the Illinois Department of Corrections who has untried complaints, charges or indictments pending in any county of this State. Consequently, in order to invoke the provisions of the Speedy Trial Act, a defendant who has been committed to the Department of Corrections and who has untried charges pending against him must send his speedy trial demand to the State’s Attorney. Once a defendant makes such a demand, pursuant to section 103 — 5(b), he then must be tried within 160 days.

Here, once the proceedings were terminated in Perry County, defendant was transferred immediately to the penitentiary. Defendant was neither returned to. nor held in custody for Randolph County, and, accordingly, Randolph County never obtained custody of defendant following the termination of the Perry County proceedings. Randolph County was not given an opportunity to bring defendant to trial. As a result, the 120-day period with respect to the Randolph County charges never started to run. Rather, once defendant was transferred to the penitentiary, it was incumbent upon to him to invoke the provisions of the Intrastate Detainers Act to trigger his speedy trial rights. This the defendant did not do; consequently, he was not entitled to discharge of his Randolph County charges. It is true defendant never posted bond in connection with his Randolph County charges. Defendant’s confinement in the penitentiary, however, was pursuant to his Perry County sentence, not his inability to make bail with respect to the Randolph County charges. Defendant, therefore, was in the custody of the Department of Corrections, not that of Randolph County. The trial court made no error in denying defendant’s motion for discharge. See People v. Davis (1981), 92 Ill. App. 3d 869, 416 N.E.2d 85. See also Lykes, 124 Ill. App. 3d at 608, 464 N.E.2d at 852-53; Wentlent, 109 Ill. App. 3d at 299-300, 440 N.E.2d at 301-02.

Defendant also argues on appeal he is entitled to 444 days of credit toward his present sentence because of the time spent in custody between the setting of his bond and his sentencing on the Randolph County charges. Defendant believes, under this court’s interpretation of section 5 — 8—7(b) of the Unified Code of Corrections as set forth in People v. Higgerson (1987), 157 Ill. App. 3d 564, 510 N.E.2d 574, he is entitled to such credit whether or not he was simultaneously in custody for the Randolph and Perry County charges. Section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7(b)) states, however, that an offender shall be given credit on his sentence for time spent in custody “as a result of the offense for which the sentence was imposed.” None of the period of defendant’s incarceration from the filing of the Randolph County charges to his sentencing on those charges was “a result of the offense for which the sentence was imposed.” All of this period was attributable either to his custody in Perry County while awaiting trial on his Perry County charges or to his custody in the Department of Corrections while serving his sentence on the Perry County conviction. Defendant simply is not entitled to any of the requested credit. (See People v. Krankel (1985), 131 Ill. App. 3d 887, 899, 476 N.E.2d 777, 787. See also People v. Carter (1989), 193 Ill. App. 3d 353, 356-57, 549 N.E.2d 763; People v. Hope (1986), 142 Ill. App. 3d 171, 177-78, 491 N.E.2d 785, 789-90.) We find Higgerson and its progeny, People v. Powell (1987), 160 Ill. App. 3d 689, 513 N.E.2d 1162, and People v. Cleaves (1988), 169 Ill. App. 3d 252, 523 N.E.2d 720, to be distinguishable on their facts. None involved two different counties. Additionally, the defendant in Higgerson was incarcerated due to his failure to post bond in connection with one charge. (See Higgerson, 157 Ill. App. 3d at 565, 510 N.E.2d at 575.) Here, defendant was in custody because of the Perry County offense, not his inability to make bond on the Randolph County charges. Unlike the situation in Higgerson, here there is no ambiguity with respect to the basis of defendant’s custody. We therefore decline to follow the reasoning of Higgerson and its progeny in this instance, and accordingly, decline to grant defendant’s request for 444 days’ credit toward the instant sentence. Contra People v. Bradney (1988), 170 Ill. App. 3d 839, 869-71, 525 N.E.2d 112, 132-33.

For the aforementioned reasons, we affirm the judgment of the circuit court of Randolph County.

Affirmed.

CHAPMAN and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    DOROTHY J. COLLINS, Plaintiff-Appellee, v. CHARLES REYNARD et al., Defendants-Appellants.
    Fourth District
    No. 4—89—0667
    Opinion filed March 28, 1990.
    Rehearing denied May 7, 1990.

      Heyl, Royster, Voelker & Allen, of Peoria (Karen L. Kendall, Roy 0. Gulley, and John A. Ess, of counsel), for appellants.
    Duane D. Young, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal is brought by defendants from an interlocutory order denying their motion to dismiss. Plaintiff, Dorothy Collins, sued defendants, Charles Reynard and his law firm, Reynard and Robb, for legal malpractice. Counts I and II are premised upon a negligence theory; counts III and IV are premised upon a breach of contract theory. In her complaint, Collins claimed as damages money due her under an installment contract negotiated by Reynard. Reynard contends that Collins failed to state a cause of action in tort because she alleged only economic damages which are not recoverable in tort. The trial court denied the motion to dismiss, but found that the issue presented a question of law with substantial grounds for difference of opinion. The court also found that an immediate appeal would materially advance the litigation. Reynard filed an application for an interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), which this court subsequently granted.

We reverse.

Collins employed Reynard and his firm to negotiate the sale of her business. In her complaint, Collins claims that Reynard negligently drafted or approved the sales contract because (1) the contract did not reflect her intent to retain a first and prior security interest in and to the business and assets sold; (2) Reynard advised her to sign a sales agreement which did not reserve a security interest in the business and the assets; and (3) Reynard failed to advise her to obtain a signed financing statement from the buyer of the business.

The buyer of the business defaulted on the installment contract and pledged the assets of the business to another creditor, a bank, who then held a security interest superior to that of Collins. The bank perfected its interest, took possession of the business, and sold it to another buyer. Collins claims as damages the payments due under the installment contract, which include the principal, interest, costs of collection, and attorney fees, totalling $47,971.35. Collins makes no claim for any personal injury or property damage, seeking to recover only the loss of benefit of her bargain for the sale of her business.

In 1986, the Illinois Supreme Court defined economic loss as:

“ ‘[DJamages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits— without any claim of personal injury or damage to other property.’ ” (Anderson Electric, Inc. v. Ledbetter Erection Corp. (1986), 115 Ill. 2d 146, 149, 503 N.E.2d 246, 247, quoting Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 82, 435 N.E.2d 443, 752.)

The injuries resulting from legal malpractice are not personal injuries, but are pecuniary injuries to intangible property interests. (Gruse v. Belline (1985), 138 Ill. App. 3d 689, 697, 486 N.E.2d 398, 404; Yates v. Muir (1985), 130 Ill. App. 3d 604, 609, 474 N.E.2d 934, 937.) To recover damages in a negligence action, there must be a showing of harm above and beyond disappointed expectations. A buyer’s desire to enjoy the benefit of his bargain is not an interest that tort law traditionally protects. Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 177, 441 N.E.2d 324, 327.

Economic damages have been characterized as objectively verifiable monetary losses, including medical expenses, loss of earnings, burial costs, loss of the use of property, costs of repair or replacement, costs of obtaining substitute domestic services, loss of employment, and loss of business or employment opportunities. Noneconomic damages have been characterized as losses for pain, suffering, inconvenience, physical impairment, disfigurement, emotional distress, loss of consortium, and injury to reputation. Evangelatos v. Superior Court (1988), 44 Cal. 3d 1188, 753 P.2d 585, 246 Cal. Rptr. 629; MacCuish v. Volkswagenwerk A.G. (1986), 22 Mass. App. Ct. 380, 494 N.E.2d 390; H. Oleck, Damages to Persons and Personal Property §46, at 31 (3d ed. 1961).

In this case, Collins seeks to recover, “all amounts due under her contract from and since February 1, 1985, including contract principal, interest, costs of collection and attorney’s fees.” We conclude the Collins’ complaint prays for purely economic damages. Having so concluded, we now must address whether such a complaint can set forth a cause of action for legal malpractice in tort based on claims of negligence.

The Indiana Court of Appeals recently discussed the issue of whether economic damages are appropriately awarded under a negligence theory. (See Jordan v. Talaga (Ind. App. 1989), 532 N.E.2d 1174.) In Jordan, the court reasoned:

“[T]he heart of this issue is the basic distinction between the theories of tort and contract law. The theory of negligence protects interests related to safety or freedom from physical harm, including not only personal injuries, but also damage caused by defective personal property. For example, the damages to an automobile wrecked by reason of its own bad brakes, as well as other property in the vicinity, is compensable through an action in negligence.
‘But where there is no accident, and no physical damage, and the only loss is a pecuniary one, through loss of the value or use of the thing sold, or the cost of repairing it, the [courts] have adhered to the rule *** that purely economic interests are not entitled to protection against mere negligence, and so have denied the recovery.’ ” Jordan, 532 N.E.2d at 1181, quoting W. Prosser, Torts §101, at 665 (4th ed. 1971).

In addition, the Illinois Supreme Court has considered whether one may recover economic damages in tort from various nonlawyer professionals. That court held that a plaintiff may not recover purely economic losses against a contractor or manufacturer for the tort of defeated expectations of a commercial bargain (Anderson, 115 Ill. 2d at 153, 503 N.E.2d at 249), against a builder for negligence (Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 97-98, 492 N.E.2d 181, 185; Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 157, 449 N.E.2d 125, 128; Redarowicz, 92 Ill. 2d at 177, 441 N.E.2d at 327), or against a seller-manufacturer for negligence (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 388, 493 N.E.2d 1022, 1026; Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88, 435 N.E.2d 443, 452).

This rule, that one cannot recover economic damages in tort cases based on negligence, is known as the Moorman doctrine because of its origin in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443. In Moorman, the court held that a products liability plaintiff could not recover solely economic losses under the tort theories of strict liability, negligence, and innocent misrepresentation. However, the Moorman decision did delineate two exceptions to this rule. Economic losses were to be recoverable (1) when one intentionally makes false representations, or (2) when one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations. Moorman, 91 Ill. 2d at 88-89, 435 N.E.2d at 452.

Reynard’s conduct does not fall under either exception to the Moorman doctrine. Collins did not allege that Reynard made either an intentional or a negligent misrepresentation. Furthermore, both the Restatement (Second) of Torts and the decisions pertaining to this issue suggest that the second Moorman exception does not apply to lawyers, but applies instead to suppliers of information, such as surveyors, newspapers, accountants, and credit bureaus. See Rozny v. Marnul (1969), 43 Ill. 2d 54, 66-67, 250 N.E.2d 656, 662-63, citing the proposed revision of the Restatement (Second) of Torts §552 (Tent. Draft No. 12, 1966); see also Restatement (Second) of Torts §552 comment c, illustration 2, at 129 (liability for negligence of supplier of information applies only when defendant has pecuniary interest in transaction in which information is given, not when it is given gratuitously); comment h (persons for whose guidance information is sought), illustrations 5, 11, 12, at 134, 135-36, 136 (1977).

The Moorman doctrine was later applied to a case based on the tort of defeated expectations of a commercial bargain. (Anderson, 115 Ill. 2d 146, 503 N.E.2d 246.) In Anderson, the court disallowed the plaintiff’s tort action alleging purely economic damages and further explained that the plaintiff’s inability to recover under an action in contract was of no consequence. Anderson, 115 Ill. 2d at 153, 503 N.E.2d at 249.

This court has also discussed the aforementioned principles. In People ex rel. Skinner v. Graham, (1988), 170 Ill. App. 3d 417, 524 N.E.2d 642, a case dealing with architect and engineer malpractice, this court noted that Moorman was based upon negligence in connection with products and not services. The court concluded nonetheless that this distinction did not render Moorman inapplicable to the claimed professional malpractice in the case before it. Instead, this court held that the relevant inquiry concerns the type of loss sustained and not the nature of the relationship giving rise to the loss. Graham, 170 Ill. App. 3d at 435, 524 N.E.2d at 652.

Both the first and second districts are in accord with our holding in Graham. (See first district decisions in Tolona Pizza Products Corp. v. Davy McKee Corp. (1989), 187 Ill. App. 3d 365, 370-71, 543 N.E.2d 225, 228 (engineer and architect malpractice), and Werblood v. Columbia College (1989), 180 Ill. App. 3d 967, 974, 536 N.E.2d 750, 754 (torts of intentional interference with prospect of economic advantage and negligent administration against a college, its trustees, its president, and its dean); and second district’s decision in Fence Rail Development Corp. v. Nelson & Associates, Ltd. (1988), 174 Ill. App. 3d 94, 100, 528 N.E.2d 344, 348 (architect malpractice).) In Tolona Pizza Products, the first district overruled Rosos Litho Supply Corp. v. Hansen (1984), 123 Ill. App. 3d 290, 462 N.E.2d 566, based on the intervening Anderson decision. Specifically, the court rejected, “the distinction between services and products, relied upon in Rosos, determinative as to when economic loss may be recovered in tort.” Tolona Pizza Products, 187 Ill. App. 3d at 370, 543 N.E.2d at 228.

The Seventh Circuit Court of Appeals recently reviewed the Moorman doctrine in the context of a tort action for profits lost as a result of a failure to complete a commercial undertaking. In Rardin v. T & D Machine Handling, Inc. (7th Cir. 1989), 890 F.2d 24, the plaintiff, Rardin, purchased a printing press from defendant, WhitacreSunbelt, Inc. Whitacre had hired T&D to dismantle and load the press in preparation for delivery to Rardin. T&D performed its tasks carelessly and damaged the press as a result. Rardin incurred both the costs to repair the press as well as lost profits from his printing business for the period of time in which the press was being repaired. Rardin’s claim against Whitacre was settled. His claim against T&D was dismissed in Federal district court for failure to state a claim. Rardin, 890 F.2d at 25.

In Rardin, the only damages that plaintiff sought from T&D were those for lost profits. Rardin was unable to recover these damages from Whitacre under a warranty theory because lost profits were considered to be consequential damages not recoverable in a breach of contract action. Furthermore, Rardin had no contract with T&D and, thus, no breach of contract claim. Rardin, 890 F.2d at 25.

The Seventh Circuit affirmed the dismissal, holding that Illinois law does not provide Rardin with a tort remedy. The court cited the Moorman doctrine, as well as a number of policy reasons in support of its holding. The policy reasons included the fact that T&D was not

“privy to the circumstances of the owners of those presses. It did not deal directly with the owner, that is, with Rardin. It knew nothing about his business and could not without an inquiry that Rardin would have considered intrusive (indeed bizarre) have determined the financial consequences to Rardin if the press arrived in damaged condition.” Rardin, 890 F.2d at 26.

Based on our understanding of the Moorman doctrine and its progeny, we conclude that Illinois law precludes the recovery of economic losses in tort cases, including legal malpractice, which are based on claims of negligence.

Reversed.

LUND and GREEN, JJ., concur.


author: JUSTICE REINHARD

text:
    ROBERT J. BALDASSARI, Plaintiff, v. CHELSA DEVELOPMENT GROUP, INC., et al., Defendants and Third-Party Plaintiffs-Appellants (Irving Federal Savings and Loan Association, Third-Party Defendant-Appellee).
    Second District
    No. 2—89—0765
    Opinion filed April 3, 1990.

      James H. Wolf, of James H. Wolf & Associates, Ltd., of Chicago, for appellants.
    Louis P. Svendsen, of Ryan & Nelson, Ltd., of Arlington Heights, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

On October 29, 1985, plaintiff, Robert J. Baldassari, filed an action against Chelsa Development Group, Inc. (Chelsa), Clyde Carlig, and Helmut Peter (defendants), alleging fraudulent misrepresentation and breach of contract in connection with a limited partnership agreement. On September 2, 1987, defendants filed a third-party complaint against Irving Federal Savings and Loan Association (Irving), alleging that it had breached its commitment to loan defendants $2 million, causing defendants to breach their contract with plaintiffs. On June 27, 1988, the court approved a settlement between plaintiff and defendants. At that time, plaintiff withdrew his jury demand. On August 3, 1988, defendants filed their written jury demand. Irving filed a motion to strike the jury demand as untimely, and the trial court granted this motion on April 17, 1989. The cause proceeded to a bench trial, and the trial court found in favor of Irving on all counts. Defendants now appeal from the judgment entered against them, raising the sole issue of whether the trial court abused its discretion in finding their jury demand was not filed promptly and striking it.

The facts giving rise to this litigation may be briefly summarized. Defendants Carlig and Peter are the principal shareholders, directors and officers of defendant Chelsa. Early in 1985, Chelsa, as general partner, entered into a limited partnership agreement with plaintiff as the sole limited partner. The purpose of the limited partnership agreement, pursuant to which plaintiff advanced $100,000, was to purchase and develop certain real estate in Lake County Illinois. Defendants never properly exercised their option to purchase the real estate, and the venture was ultimately unsuccessful. Plaintiffs complaint, which was filed on October 29, 1985, essentially alleged that defendants misrepresented the details of its negotiations with the seller of the land to be developed, thereby inducing plaintiff to contribute additional capital to the limited partnership. Plaintiff also alleged that defendants breached terms of the limited partnership agreement providing for the return of portions of his contribution upon the occurrence of certain events. Plaintiff sought judgment in the amount of $100,000 plus $500,000 in punitive damages. Plaintiffs demand for a trial by a jury was noted on the complaint.

Defendants filed their answer on April 6, 1987, and their third-party complaint against Irving was filed on September 2, 1987. Neither was accompanied by a jury demand. The third-party complaint alleged that Irving breached an oral commitment to loan defendants $2 million so that they might purchase the real estate, which was the subject of the limited partnership agreement. Defendants alleged that Irving’s failure to fulfill its oral loan commitment directly caused defendant to breach the limited partnership agreement with plaintiff. Defendants sought damages in excess of $500,000.

On June 27, 1988, the trial court entered an agreed order reflecting a settlement between plaintiff and defendants. The order, which ended plaintiff’s involvement in the case, called for judgment to be entered in favor of plaintiff in the amount of $125,000, plus interest and attorney fees. The order also noted that “[plaintiff’s jury demand is hereby withdrawn.”

On August 3, 1988, 37 days after the agreed order entering judgment against defendants on plaintiff’s complaint, defendants filed a substituted jury demand. Thereafter, Irving filed a motion to strike defendants’ jury demand on the ground that it was not filed “promptly” after the withdrawal of plaintiff’s jury demand as required by section 2 — 1105 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1105). On March 8, 1989, defendants filed a response to the motion to strike. The response claimed that defendants’ jury demand was timely filed because an oral jury demand was made on June 22, 1988. Defendants also claimed that they had good reason for the five-week delay in filing their written jury demand because they were waiting for Irving to file its objection thereto. Defendants’ response was accompanied by the affidavits of James H. Wolf, attorney for defendants, and Bernard J. Kayne, plaintiff’s attorney, which stated that defendants made an oral jury demand on June 22,1988, before Judge Stephen E. Walter.

The record contains no transcript of any proceedings on June 22, 1988, nor does the common-law record show an oral jury demand. In a written order dated April 17, 1989, Judge Raymond J. McKoski granted Irving’s motion to strike defendants’ jury demand.

On April 24, 1989, defendants filed a motion for reconsideration of the trial court’s order striking defendants’ jury demand. With its response to the motion, Irving submitted an affidavit of one of its attorneys, which stated that the first mention of defendants’ jury demand in open court was made on August 30, 1988. The motion for reconsideration was denied.

Following a bench trial, judgment was entered in favor of Irving on defendants’ third-party complaint.

Defendants contend on appeal that their jury demand was timely filed under section 2 — 1105(a) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1105(a)). Alternatively, defendants maintain that they had good cause for waiting until August 3, 1988, to file a jury demand.

Section 2 — 1105(a) provides:

“§2 — 1105. Jury demand, (a) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer. Otherwise, the party waives a jury. If an action is filed seeking equitable relief and the court thereafter determines that one or more of the parties is or are entitled to a trial by jury, the plaintiff, within 3 days from the entry of such order by the court, or the defendant, within 6 days from the entry of such order by the court, may file his or her demand for trial by jury with the clerk of the court. If the plaintiff files a jury demand and thereafter waives a jury, any defendant and, in the case of multiple defendants, if the defendant who filed a jury demand thereafter waives a jury, any other defendant shall be granted a jury trial upon demand therefor made promptly after being advised of the waiver and upon payment of the proper fees, if any, to the clerk.” Ill. Rev. Stat. 1987, ch. 110, par. 2—1105(a).

Defendants argue that, pursuant to the last sentence of section 2 — 1105(a), they were entitled to “promptly” demand a jury trial after plaintiff withdrew his jury demand in connection with the settlement of his claim. Defendants maintain that their demand was promptly made. We believe, as Irving has suggested, that defendants have misapplied section 2 — 1105(a). With respect to the claim at issue against Irving, defendants’ stance was that of third-party plaintiffs rather than defendants.

Section 2 — 401(d) of the Civil Practice Law provides:

“(d) Unless a contrary meaning is indicated, wherever used in ' this Act and in rules adopted pursuant hereto the term ‘plaintiff’ includes counterclaimants and third-party plaintiffs, and the term ‘defendant’ includes third-party defendants and parties against whom relief is sought by counterclaim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—401(d).)

Accordingly, we believe that with respect to a jury demand on defendants’ third-party claim, defendants are properly treated as plaintiffs under section 2 — 1105(a) as we find nothing in the Code of Civil Procedure or supreme court rules to indicate a contrary meaning. The third-party claim commences an action against a new party requiring additional pleadings and service of process. (Ill. Rev. Stat. 1987, ch. 110, par. 2—406.) Therefore, with respect to the third-party claim, defendants were required to make a jury demand upon filing their third-party complaint as provided in the first sentence of section 2— 1105(a).

Defendants’ jury demand, filed 11 months after the third-party complaint, was not timely. Accordingly, the proper inquiry is whether the trial court erred in striking the late jury demand. A party seeking to file a late jury demand must show good cause for the delay and an absence of prejudice or inconvenience. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 107, 382 N.E.2d 1205.) While Irving, as third-party defendant, might not have been prejudiced by the late demand since the cause had previously been set for a jury trial on plaintiff’s jury demand (see Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 96, 382 N.E.2d 1201), defendants fail to show good cause for the late filing. Defendants have argued that there was good cause for the delay in view of their purported oral request for a jury trial on June 22, 1988, and Irving’s announcement that it would file an objection, matters not contained in the record. This argument, however, is premised on defendants’ erroneous view as to when the jury demand was required in the first instance. The record discloses no good cause for the delay subsequent to the filing of the third-party complaint, and, accordingly, the trial court did not abuse its discretion in striking the untimely jury demand.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS and DUNN, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VITO M. IOZZO, Defendant-Appellant.
    Second District
    No. 2—89—0678
    Opinion filed April 3, 1990.

      Patrick J. O’Shea, of Law Offices of Patrick J. O’Shea, of Lombard, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

The defendant, Vito M. Iozzo, was charged by a complaint with the offense of theft in violation of section 16 — 1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(a)). The cause proceeded to a jury trial, but the trial court eventually declared a mistrial when the jury could not reach a verdict. After the cause was set for retrial on the same charge, the defendant filed a motion to dismiss the charge on the basis of former jeopardy. The trial court denied this motion, and the defendant now takes an interlocutory appeal from that order pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)). On appeal, the defendant argues that his retrial is barred by the constitutional prohibition against double jeopardy. Two issues are presented on appeal: (1) whether the evidence presented at the first trial was sufficient to sustain a conviction against the defendant; and (2) whether the trial court abused its discretion when it declared a mistrial in the first trial.

The charge against the defendant arises from events which occurred on the afternoon of Sunday, January 8, 1989. The defendant admits that he was on the premises of the Packey-Webb automobile dealership on this date and that he removed a custom wheel cover from the back of one of Packey-Webb’s vans. At trial, the defendant claimed that, although he took the wheel cover when the dealership was not open, he did so in the belief that his cousin, Michael lozzo, had arranged for the purchase of such an item from Packey-Webb.

Testifying at trial on behalf of the defendant, Michael lozzo stated that he was the general sales manager for Ogden Avenue Motors, lozzo testified that Ogden Avenue Motors conducted approximately $500,000 worth of business each year with Packey-Webb and that this commercial relationship continued after the incident on January 8, 1989. lozzo stated that his cousin, the defendant, called him a few days after the January 1, 1989, holiday to ask if lozzo could help him obtain a spare tire cover for the defendant’s jeep. lozzo said that he could order such a cover from Packey-Webb, with which he frequently does business, in time for the defendant’s planned trip to New Orleans on Monday, January 9. lozzo stated that he never told the defendant that he should go directly to Packey-Webb’s lot and remove a wheel cover from one of the vehicles there. No order was ever placed with Packey-Webb. According to lozzo, he mistakenly forgot to order a wheel cover from Packey-Webb because of his preoccupation with his mother’s terminal illness at about that time.

After the close of the evidence, the jury listened to the prosecutor’s closing argument. During his discussion of what the State needed to prove to sustain a conviction, the prosecutor stated:

“MR. CRONIN [Assistant State’s Attorney]: the fourth issue is that defendant intended to permanently deprive the owner of the property. Now, ladies and gentlemen, in order to prove that element, that he intended to permanently deprive the owner of the property, to prove that element absolutely, the People would have to open up [the defendant’s] mind and get some sort of a printout and show it to you.
Now, ladies and gentlemen, obviously, we cannot do that, but what we can do is urge you to look at his actions and what did his action tell you about his intent?
I’m asking you to look at his actions and use your common sense.”

The jury retired to deliberate at approximately 4 p.m. on Friday, May 5, 1989. Immediately after the jury retired, defense counsel made a motion for a directed verdict based on the prosecutor’s alleged “admission” during closing argument that the State could not prove the necessary element of intent. The State denied making such an admission. In response to the motion, the trial court stated:

“THE COURT: I think, as I understand, as I understood the comments, he was speaking graphically. You cannot physically see into a person’s head, comparing a head or brain to a computer which would give a printout.
It is my understanding of the comment that he was saying that he cannot physically do that. I do not believe he was saying that he could not prove the requisite elements of the case.”

The court denied the motion for a directed verdict.

At approximately 7:10 p.m., the trial court noted for the record that the jury had made two written inquiries approximately one hour earlier. The handwritten note from the jury read, “[pjlease define the term ‘reasonable’ doubt” and asked, “[i]s it possible to review Mike Iozzo’s testimony?” As to the first question, the State and the defendant agreed that the proper response would be for the trial court to refer the jury to its original instructions. On the request to review Michael Iozzo’s testimony, defense counsel indicated that, in his view, the jury was entitled to hear the testimony again. The trial court, however, instructed the jury that it must decide the case based on the evidence it had already heard.

Later, the jury issued a second written inquiry stating, “[i]s it possible to review the transcript (except for the opening and closing statements)?” The trial court’s answer to the question, which was given to the jury about one-half hour later, stated “[ajgain, you must decide the case based upon the instructions you have received and the evidence you have heard.”

At approximately 11 p.m., the trial court brought the jury back into the courtroom. The trial court stated that, although the jury had been deliberating for “several hours,” the jury indicated that it was making no progress. The court inquired of the foreman of the jury:

“THE COURT: Mr. Howell, I would like to ask you now, on behalf of the jury, if the Court were to ask you to continue your deliberations, do you believe that there is a reasonable probability that you might yet be able to arrive at a verdict?
THE FOREPERSON: Without further guidance, no. We have been — After the first half hour, there were nine people that voted one way and three people that voted another way.
THE COURT: I don’t want you to tell me which way anyone has voted.
THE FOREPERSON: No, No.
Since that point in time there has not been any change, so approximately six hours without any change.
THE COURT: All right. Now, earlier some questions were sent out and responses were made back to the jury. I want to ask you, is there anything further that the Court can do in assisting the jury in arriving at its verdict, such as any other jury instructions or reading of any testimony by the court reporter?
THE FOREPERSON: Yes.
THE COURT; If you cannot answer that question as the foreman, I will allow the jury to go back and make a preliminary vote on that, if you want to decide that amongst yourself.”

The jury then retired to consider the trial court’s question. At approximately 11:20 p.m., the jury submitted a written inquiry stating that the jury “would like to hear Mike Iozzo’s testamony [sic]” and asking, “if there is not enough testamony [sic] to prove or disprove one of the propositions does this mean not guilty?”

Both the prosecutor and defense counsel agreed with the trial court’s determination that, with regard to the latter inquiry pertaining to the standard of proof, the jury should be referred to its original instructions. The parties disagreed about the jury’s request to hear the testimony of Mike Iozzo again, the defendant favoring a reading of the testimony and the prosecutor opposing it. The trial court, after cautioning the jury not to place undue emphasis on one witness’ testimony, had Mike Iozzo’s testimony read to the jury.

At approximately midnight, the jury was again brought into the courtroom. The court inquired as to the state of its deliberations:

“THE COURT: Mr. Howell, again, I would like to ask you, I understand that since the last communication, the jury again has been deliberating and has not arrived at a verdict; is that correct?
THE FOREPERSON: Yes.
THE COURT: If the Court were to ask you to continue your deliberations, do you feel that there is a reasonable probability that you might yet be able to *** arrive at a verdict?
THE FOREPERSON: No, sir, I don’t.
THE COURT: Notwithstanding, I wish to give the jury this further instruction at this time.”

With the concurrence of both parties, the trial court then proceeded to give the jury the instruction discussed in People v. Prim (1972), 53 Ill. 2d 62, 72-76, appropriate when the members of the jury are in disagreement.

At approximately 12:40 a.m., the jury was brought back into the courtroom a final time. The court inquired whether jury deliberations were progressing:

“THE COURT: I understand that the jury again, after the further instruction of the Court, has still not made any further progress.
I would, again, Mr. Howell, like to ask you, if the Court were to ask you to continue your deliberations.
Do you feel there is a reasonable probability that you might yet be able to arrive at a verdict?
THE FOREPERSON: No, sir.
THE COURT: Do you believe that this jury is then hopelessly deadlocked at this time?
THE FOREPERSON: Yes, sir. I feel the sides are opinionated and will not change their view.
THE COURT: I would like to ask you, again, you said earlier that the vote was nine to three. I don’t want you to say which way this vote was, but I want to ask you, again, since you have taken your subsequent ballots, does this vote remain the same or has there been any change in the vote of the jury?
THE FOREPERSON: It remains the same.
THE COURT: At nine to three?
THE FOREPERSON: Yes.
THE COURT: It is now twenty minutes to 1:00 in the morning, I would like to ask you if you believe the jury were to recess at this time and then reconvene and continue its deliberation at some later time, if there is any reasonable probability that you might yet be able to arrive at a verdict?
THE FOREPERSON: No, sir. I asked that question. They felt additional time would not help anyone to change their opinion.”

The trial court then polled the jurors individually, and each juror was of the opinion that the jury would not be able to agree on a verdict or that agreement was “very unlikely.” The court then stated that, because the jury was “hopelessly deadlocked,” it would declare the proceedings a mistrial. The defendant did not object to the trial court’s ruling.

After the declaration of a mistrial, the cause was reset for a second jury trial. On May 15, 1989, the defendant filed a motion to dismiss the proceedings on the basis of former jeopardy. The defendant argued that a second trial was barred because there was no manifest necessity to declare the first proceedings a mistrial. On June 5, the defendant filed a motion for reconsideration of the court’s earlier order denying the defendant’s motion for a directed verdict because of the State’s “admission” that it could not prove an element of the crime charged. The trial court orally denied both motions on June 15, 1989, and the defendant filed a notice of appeal on July 7, 1989.

On appeal, the defendant contends that his retrial is barred by the constitutional prohibition against double jeopardy (U.S. Const., amend. V), and he advances two arguments in support of this contention. First, the defendant argues that the trial court erred by denying his motion for a directed verdict at the close of all the evidence because the State had made a judicial admission that it could not prove the requisite intent for the crime charged. Second, the defendant argues that the trial court erred by declaring a mistrial because there was no manifest necessity to do so and because the court improperly inquired into the division of the jury. Our jurisdiction over the appeal is appropriate pursuant to Supreme Court Rule 604(f) (107 Ill. 2d R. 604(f)).

The double jeopardy clause of the United States Constitution protects a defendant from prosecution for an offense after acquittal or conviction of the same offense and prohibits multiple punishments for the same offense. (People v. Hoffer (1985), 106 Ill. 2d 186, 197.) The principle underlying this constitutional prohibition is that the State should not be allowed to marshall its great power and resources in repeated attempts to convict an individual of an offense. (People v. Rudi (1984), 103 Ill. 2d 216, 223.) Where a mistrial is declared because the jury is unable to reach a verdict, retrial is barred by the prohibition against double jeopardy if the evidence introduced at the first trial was insufficient to convict the defendant. People ex rel. Daley v. Crilly (1985), 108 Ill. 2d 301, 308.

The defendant argues that his retrial is, in fact, barred by the prohibition against double jeopardy because the prosecutor in the first trial admitted in closing argument that the State could not prove the intent required to sustain a conviction. This argument is based on the prosecutor’s statements that, in order to prove the defendant’s state of mind “absolutely,” the State “would have to open up [the defendant’s mind] and get some sort of printout” and that “obviously, [the State] cannot do that.”

Assuming, without deciding, that a prosecutor can make a judicial admission in closing argument (see People v. Morrison (1988), 178 Ill. App. 3d 76, 92-93), we believe that the trial court correctly determined that the prosecutor’s comments during argument did not constitute an admission. The trial court’s interpretation of these comments was that the prosecutor was speaking “graphically.” The court believed that the State only conceded that it could not, of course, obtain a “printout” of the defendant’s mind as if it were a “computer”; the court did “not believe [the prosecutor] was saying that he could not prove the requisite elements of the crime.” A cursory examination of the prosecutor’s comments reveals that the trial court correctly found that no admission was made. Quite to the contrary, the prosecutor specifically asked the jury to look to the defendant’s actions to infer that he had the intent to deprive Packey-Webb of the custom wheel cover. This is a clear indication that the State never conceded that it could not prove that the defendant had the mental state required to convict him of the offense charged. Accordingly, we reject the argument that there was insufficient evidence to convict the defendant at his first trial.

The defendant next contends that the trial court erred when it declared a mistrial in the first proceeding. This argument is based on the defendant’s assertions that there was no manifest necessity to declare a mistrial and that the trial court improperly inquired into the division of the jury. The court may properly declare a mistrial and discharge a jury when it is apparent that the jury is hopelessly deadlocked. Under such circumstances, the constitutional prohibition against double jeopardy does not bar a retrial unless the trial court abused its discretion in discharging the jury. People v. Cole (1982), 91 Ill. 2d 172, 175.

We do not believe that the circumstances here demonstrate that the trial court abused its discretion in declaring a mistrial because the jurors were “hopelessly deadlocked.” The jury began its deliberations at 4 p.m. Brought into the courtroom at about 11 p.m., the foreman indicated that the jury would not be able to reach a verdict “[wjithout further guidance.” To aid in the deliberations, the trial court had the testimony of Michael Iozzo read to the jury at about this time. Later, at about midnight, the foreman again indicated that there was no reasonable probability that the jury would reach a verdict. The court did not at this point declare a mistrial and instead encouraged further deliberations consistent with the supreme court’s decision in People v. Prim (1972), 53 Ill. 2d 62, 72-76. At 12:40 a.m., the jury again indicated that no progress toward a verdict had been made, and each juror indicated his or her opinion that the jurors would not reach agreement on a verdict.

We believe that the trial court gave the jurors ample opportunity to deliberate and that the court declared a mistrial only when it became clear that further deliberations would not produce a verdict. A trial court is to be afforded great latitude in determining how long a jury should be permitted to deliberate before a mistrial is declared. (People v. Preston (1979), 76 Ill. 2d 274, 283.) It has recently been held that a period of only two hours' deliberation was sufficient where the jurors clearly indicated that no verdict was likely. (People v. Wolf (1989), 178 Ill. App. 3d 1064, 1066.) Here, a total of more than eight hours elapsed from the beginning of deliberations until the mistrial was declared. We feel that the trial court acted within its discretion in declaring a mistrial after the jury’s deliberations proved fruitless.

The defendant argues that the trial court gave the jury only 10 minutes to digest the reading of the testimony of defense witness Michael Iozzo, indicating that the court did not give the recounting of this testimony an opportunity to break the impasse. We disagree. First, the record indicates that more than one hour elapsed between the time that Iozzo’s testimony was read to the jury and the trial court’s declaration of a mistrial. Second, the foreman indicated on two occasions after Iozzo’s testimony had been read that agreement on a verdict was unlikely, and not one jury member indicated that further consideration of Michael Iozzo’s testimony would have led to a verdict.

Finally, the defendant contends that the declaration of a mistrial was tainted by the trial court’s improper inquiry into the numerical division of the jury. It is normally error for a trial court to inquire into the numerical division of the jury. (People v. Duszkewycz (1963), 27 Ill. 2d 257, 263.) However, where, as here, the trial court receives an unsolicited statement regarding the numerical division of the jurors, it is not error to order the jury to continue its deliberations. (People v. Farella (1979), 79 Ill. App. 3d 440, 445.) The trial court here learned of the jury’s numerical division only after the foreman volunteered such information.

Even if it were error for the trial court to have inquired into the numerical division of the jury, this is not per se reversible error unless it results in prejudice to the defendant. (Duszkewycz, 27 Ill. 2d at 262-63.) Whether prejudice has occurred depends on the facts of each case. (People v. Santiago (1982), 108 Ill. App. 3d 787, 806.) The defendant contends that the trial court should not have rushed to declare a mistrial when it could have inferred that the jury was split nine to three in favor of acquittal. The defendant apparently believes that the pattern of inquiries emanating from the jury indicates that the majority was leaning toward acquittal. Contrary to the defendant’s assumption, there is absolutely nothing in the record to indicate whether the majority of the divided jurors favored acquittal or conviction. The jurors who authored the various questions submitted to the trial court could have just as easily been three in number, and not nine. It would have been quite impossible for the trial court to have known what verdict was favored by the majority of the jurors. We believe that the trial court’s communications with the jury, after learning of the numerical division were not prejudicial because they were not coercive (People v. Gregory (1989), 184 Ill. App. 3d 676, 684-85) and because they were neutral with regard to the ultimate verdict which might result from further deliberations (see Santiago, 108 Ill. App. 3d at 806-07). Therefore, the defendant has failed to demonstrate what prejudice could have resulted from the trial court’s inquiry into the numerical division of the jury.

Accordingly, the orders of the circuit court denying the defendant’s motion to dismiss on the basis of former jeopardy and the motion to reconsider are affirmed.

Affirmed.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY D. SATTERFIELD, Defendant-Appellant.
    Second District
    No. 2—88—0189
    Opinion filed April 12, 1990.
    Rehearing denied May 4, 1990.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon, and Frank Weiss, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Gary Satterfield, was charged by an amended information in the circuit court of Ogle County with the offense of criminal sexual abuse (enhanced to a Class 2 felony due to a prior conviction of the sexual assault offense of rape) (Ill. Rev. Stat. 1985, ch. 38, par. 12—15(a)(1)) and with the offense of aggravated battery (battery occurred in a “public place of accommodation”) (Ill. Rev. Stat. 1985, ch. 38, par. 12—4(b)(8)). He was convicted of both offenses after a jury trial and was sentenced to the Department of Corrections for two five-year concurrent terms of imprisonment.

As to his aggravated battery conviction, he contends on appeal that the prosecution failed to prove beyond a reasonable doubt that his conscious objective or purpose was to accomplish insulting or provoking physical contact with the victim. As to his criminal sexual abuse conviction, he contends the prosecution failed to prove the essential elements of force, intent, and his prior felony conviction and, further, there was a fatal variance between the charging instrument and the proof at trial.

The evidence presented at trial showed that about 9:30 a.m. on Tuesday, July 28, 1987, the defendant arrived at the home of his friend, Carl Beightol. According to Beightol, the defendant had an open can of beer with him and, in Beightol’s opinion, the defendant “wasn’t feeling no [sic] pain at all.” The defendant wanted to go to the Polo Veterinary Clinic to find out what to do for a dog he had seen that morning in the yard of a home. The dog was tethered by a leash and its neck was rubbed raw. Beightol had some things to do at the house, so they did not drive to the clinic until afternoon.

Beightol parked his pickup truck in the veterinary parking lot. The defendant got out and walked toward the clinic door. Beightol then saw the defendant walk to the passenger side of another car, which was parked one space away and to the right of Beightol’s car. There were two women in the car, an older woman (Ester Nichols), the driver, and a younger woman (the complainant), to whom the defendant was talking. According to Beightol, the defendant had opened the passenger side door and was talking to the complainant. Beightol testified the defendant “leaned over and he grabbed her [the complainant], put his hand under her jaw like this, and shook her head.” Beightol estimated the defendant shook the complainant’s head three or four times.

Beightol stated it was raining, and with the windows rolled up, he did not hear any part of the defendant’s conversation with the complainant. The defendant then got back into Beightol’s truck and advised him he wanted to go to Mick’s, a bar in Polo. On cross-examination, Beightol affirmed that he saw no conduct other than the defendant hold the complainant’s head under her chin and shake her head.

Ester Nichols, the complainant’s foster mother, testified she took the complainant, age 15, to the Polo Veterinary Clinic to get treatment for the complainant’s dog, which had been struck by a moving vehicle. Nichols described her daughter as “crying really hard.” Nichols testified her daughter left the car to see if the clinic was open; as she returned to the car, the defendant followed her.

According to Nichols, the defendant

“leaned in the car and put his left arm around [the complainant’s] shoulders and he shook her neck real hard with his right hand, and then he said, well, I’m sorry I did that but I could have done this, so then he touched her breasts with his hand three or four times with his fingers.”

Nichols proceeded to start the car and tried to back away “but it didn’t seem like he would get away, because he still had the door part open.” Eventually, the defendant backed away, and the complainant rolled up the window and locked the door.

On cross-examination, Nichols reiterated that the defendant seized the complainant by the throat and shook her, and, with three fingers, he “poked” or “jabbed” complainant’s left breast three or four times. Nichols related that she had seen the defendant before but did not recognize him until he mentioned his name. She knew his name; he had been to her house to visit one of her sons.

The complainant described the incident as follows:

“I got out of the car and I went up to the door to go and see if the vet was there, but nobody was in there, and I was crying because my dog had gotten hit, and so I turned around and I went towards the car, and the man got out of the truck, and he come [sic] like I was — I had gotten back in the car when I noticed he was standing at the door, and he was mumbling and I couldn’t make out what he was mumbling, and he comes [sic] toward the car and he kept on talking, and then he like opens the door, and he put his arm around me, his left arm around my shoulders and he was looking at the dog and he was saying things like, well, your dog has no soul, and don’t worry about it. Just go home and give it some pain killers and he’ll be okay, and I was like really scared, and that, then he said, well, just don’t worry about it, and he took his right arm and he grabbed like the skin of my neck and he shook it like this, and I was really scared, and he says, don’t cry, just don’t worry about it, and he says, he says, well, I could have done this, and then he poked my breast right here, somewhere, it was down lower.”

The complainant testified the defendant used two or three fingertips of his right hand in touching her breast. She related that she was very frightened while he was poking her: “I couldn’t do anything. He was in the door and I had a dog on my lap and my mom was sitting next to me.”

On cross-examination, the complainant testified she was frightened “because my dog was bleeding and because I had never seen this man before, and I didn’t know what to do.” When the defendant asked what happened to her “little doggie,” she told him her dog had been struck by a van, and he put his arm around her shoulder. She did not say anything to him about that because she was frightened and did not know what to do. She stated she thought “what he was meaning to do is to comfort me by putting his arm around my shoulder.” Complainant demonstrated her lack of approval toward defendant’s gesture by “tightening up” because there was no place to which she could move. She stated the defendant grabbed the skin underneath her chin with his fingers and thumb of his right hand and shook it three or four times “just enough to — he was, I think, I believe, he was trying to, you know, like when you try to slap somebody when they are crying for something.” Complainant testified further that “[a]t that moment, I was not sure what he was trying to do. I had thought that maybe he was trying to help me after that, days after that.”

The complainant estimated that the entire incident lasted five or six minutes. She did not tell the defendant to go away but instead advised him, “[wje’re leaving now, excuse me, good bye.” The mother started the car and pulled away; the defendant made no effort to hold her.

Defense counsel moved for a directed verdict, arguing as to the sexual abuse charge that no force or threat of force was shown and that “poking” was not sexual conduct. As to the aggravated battery charge, he argued the clinic parking lot was not a public place of accommodation and the testimony was not clear as to whether the touching constituted a battery. Following the prosecutor’s argument, the court denied the defendant’s motion as to the aggravated battery, and, early the next day, it also denied his motion as to the criminal sexual abuse charge.

The defendant’s case consisted of a stipulation and his own testimony. He stipulated that Al Beightol, Carl Beightol’s father, would testify that he had knowledge of the dog that the defendant was concerned with trying to help.

In his own behalf, defendant testified he got out of Beightol’s pickup truck and walked to the clinic door to determine the office hours. The complainant, carrying a box, was there also. She was crying and appeared to be emotionally upset. The defendant opened the front passenger door to Nichols’ car so the complainant could get in. He recognized Nichols, who was the mother of one of his friends. He testified:

“I was trying to calm down the girl, and I asked what was the matter, and she said that her doggie was going to have to get put to sleep, and I told her it wasn’t, you know, it wasn’t the end of the world, and she could get another doggie, or something, and then I told her that dogs and animals don’t have a soul and spirit, and its in the Bible, it’s not crazy. God breathed life into man, not animals’ soul and spirit rather.” (Emphasis in original.)

He believed he probably put his hand on complainant’s shoulder; she did not squirm or make any motion when he did that. He asked to see the complainant’s dog, which she had in a box on her lap, the dog covered by a blanket. The defendant saw no blood on the dog or other injury He advised her to call the veterinarian’s residence. He looked at the dog, and it whined at him. The defendant told the complainant, “the doggie didn’t want to die, just take the doggie home and love it, and, you know, it will probably get better.”

The defendant testified he thought Mrs. Nichols said something then, he did not remember what, but he believed he said in response:

“[Tjhat I was only trying to help, and then, because I kind of sometimes have a snide remark or smart remark *** to say * * *
* * *
I said if I was trying to do something wrong, that I might play with her breasts, or something, and then with my left hand, because I was leaning over inside the car, because it was raining, and I was getting wet, in my trying to help, since I was leaning over in front of her, I touched her on the upper chest, right here, "with my left hand, because it was the closest to her, and my hand now, for sure, wasn’t on her shoulder, or around her. I touched her with the side of my left hand, and after that, she didn’t cry anymore. She straightened up. I guess I accomplished what I was trying to accomplish all along, was to calm her down, because she didn’t need to be that upset over an animal or something. Sure, you get upset, but you can’t stay that way. You can’t cope.”

After he touched the complainant, she stopped crying and did not cry anymore. Neither she nor her mother gave him any signals that what he was doing was not right. The defendant testified the chin-touching incident occurred on his return to the car after he volunteered to check the office hours posted on the door. Both women indicated they wanted him to check the hours. When he returned to the car, the door was shut and the complainant rolled down her window. He told the women there was supposed to be someone at the clinic until 5 p.m. and that they should call the vet’s house and give the dog some crushed aspirin mixed in its food. As he was telling this to the women, he placed his hand on top of the complainant’s head. In trying to get her attention, he lifted her head up with his right hand under her chin. He did not remember shaking her, “but, you know, I may have done a little something like that. *** It was just something to — meant to get [her] attention and help calm [her] down.” Through the whole five-minute incident, there was no indication by Nichols or the complainant that he was bothering them. Finally, the defendant admitted that he had prior felony convictions.

On cross-examination, the defendant maintained he meant no harm to the complainant; he was merely trying to comfort her and be a good person. He stated he was not intoxicated at the time of the incident, but admitted he had four or five beers prior to it. He stated he leaned into the car only in order to shelter himself from the rain. He denied he touched the complainant’s breast but, rather, touched her upper chest with the side of his hand. When asked why he would do that when the complainant was crying because her dog was dying, the defendant replied, it “[straightened her up. She didn’t cry any more.” On re-cross-examination, the defendant testified that he was 35 years old.

Ester Nichols testified in rebuttal in part that the defendant took hold of the complainant’s chin and neck and shook her head before he went to the door of the clinic to check the hours.

Following deliberations, the jury returned with guilty verdicts on both charges, and judgment was entered on the verdicts. Following a presentence investigation and a psychiatric evaluation, the defendant was sentenced as noted above. The court denied the defendant’s subsequent post-trial motions raising the issues of whether the parking lot was a public place of accommodation and whether sexual conduct occurred.

The defendant first contends his conviction of aggravated battery must be reversed because the evidence was insufficient to show the requisite intent and the nature of the conduct. The information charged the defendant with aggravated battery in that he

“without legal justification and while [the complainant] was at the Polo Veterinarian Clinic, a public place of accommodation, knowingly made physical contact of an insulting or provoking nature with [the complainant] in that he grabbed [the complainant] by the throat, with his hand.” (Emphasis added.)

See Ill. Rev. Stat. 1985, ch. 38, par. 12—4(b)(8).

Defendant argues the evidence leaves considerable doubt about whether his actions constituted contact of an insulting or provoking nature as opposed to merely a well-intentioned effort to comfort the complainant in light of the circumstances of her dog’s injury. Although he acknowledges he did not know the complainant, he argues he was acting as a “good Samaritan” for Nichols, whom he did know. He points to the fact neither the complainant nor her mother made a verbal or affirmative physical objection to his conduct as being supportive of his contention that he lacked the specific intent required to sustain a conviction of battery.

The defendant correctly notes that battery is a specific intent crime. (People v. Hayes (1976), 37 Ill. App. 3d 772, 774.) That is, the contact must be made intentionally or knowingly (Ill. Rev. Stat. 1985, ch. 38, par. 12—3(a); Hayes, 37 Ill. App. 3d at 774); the defendant must know what he is doing before his conduct will be considered an offense. (People v. Weir (1985), 131 Ill. App. 3d 562, 564.) “A person knows, or acts knowingly or with knowledge of *** [t]he result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” (Ill. Rev. Stat. 1987, ch. 38, par. 4—5(b).) When the sufficiency of the evidence is challenged, it is not the function of the reviewing court to retry the defendant. The relevant question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237.

Viewing the evidence in the light most favorable to the State, we conclude the defendant knowingly made contact of an insulting or provoking nature with the complainant. Despite his alleged good intentions, the defendant quite clearly made objectionable physical contact with a young woman he admitted he did not know. Nichols and the complainant testified his initial contact was his left arm around the complainant’s shoulders and the shaking of her head by grasping her neck. The defendant testified his initial contact was a hand on her shoulder and that it was only later that he lifted up her chin and may have done something like shake her head in order to get her attention and calm her down. Whatever the sequence of events — a question for the jury to resolve along with the witnesses’ credibility — the evidence refutes his contention he received no affirmative signal that his initial contact with the complainant was objectionable. Nichols and the complainant each testified and the defendant admitted that he stated: “Well, I could have done this” and he then proceeded to make contact of an even more insulting and provoking nature by poking or jabbing at the complainant’s left breast. (Emphasis added.) Defendant’s statement clearly suggests he knew he already had done something objectionable. During the defendant’s contact with the complainant, she testified she was frightened and could not move away from him because she was boxed in, so she “tightened up.” Also, Nichols testified she was trying to back out of the parking space- away from the defendant, but that the car door was open.

Although the contact made with the complainant’s neck in the instant cause did not have the sexual overtones of the contact which occurred in People v. Margiolas (1983), 117 Ill. App. 3d 363, People v. Siler (1980), 85 Ill. App. 3d 304, or People v. Hamilton (1980), 81 Ill. App. 3d 297, 301, contact which is insulting or provoking in nature is not limited to sexually oriented contact but includes the slightest intentional or knowing unlawful touching. (Ill. Ann. Stat., ch. 38, par. 12—3, Committee Comments, at 439 (Smith-Hurd 1979).) The defendant and the complainant here were complete strangers to each other. Yet, because he was acquainted with the son of the other woman in the car with the complainant, the defendant took it upon himself to “comfort” the complainant by making physical contact with her before he knew who she was or even what was causing her to cry. His own characterization of his conduct as “officious” — although astute — is, nonetheless, an understatement. “Officious” is defined as “objectionably forward in offering one’s unrequested and unwanted services, help or advice.” (The Random House Dictionary of the English Language 1000 (1983).) The defendant’s conduct — emboldened, no doubt, but not excused, by the four or five beers he had consumed — went beyond officious, right into criminal. We conclude his conviction of aggravated battery was supported by sufficient evidence.

The defendant next contends the State failed to prove his guilt beyond a reasonable doubt of the offense of criminal sexual abuse in that it failed to prove the requisite elements of force and intent and, further, there was a fatal variance between the information filed and the proof at trial.

The amended information charged the defendant violated section 12 — 15(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 12—15(a)(1)) in that he

“committed an act of sexual conduct with [the complainant] in that [he], by the use of force knowingly touched the breast of [the complainant] for the purpose of the sexual arousal of [himself] or [the complainant]; after [he] had previously been con- ' victed of the sexual assault offense of rape in the 15th Judicial Circuit of the State of Illinois in Ogle County, court file number 78—DF—78.”

As to the element of force, defendant argues neither the complainant nor her mother testified to any conduct of his intervening between the shaking of the complainant’s neck or head and the touching of her breast. The statute defines force, however, to include overcoming the victim by the use of physical restraint or confinement. (Ill. Rev. Stat. 1985, ch. 38, par. 12—12(d)(2).) Here, the complainant testified there was nowhere she could move in order to avoid the defendant’s advances. She virtually was pinned in the car and, thus, was physically confined within the meaning of the statute.

As to intent, the statute defines an act of “sexual conduct” in pertinent part as “any intentional or knowing touching *** by the *** accused *** of the *** breast of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused.” (Ill. Rev. Stat. 1987, ch. 38, par. 12—12(e).) The defendant argues his touching of the complainant’s breast three or four times in the context of the instant cause was not for the purpose of sexual gratification or arousal of the victim or himself. Rather, “he merely wanted to make the point that his act of shaking complainant’s head was not meant to be alarming.”

The defendant’s own explanation of the point he wished to make to the complainant’s mother, Mrs. Nichols, reveals the wolf in sheep’s clothing: “Well, if I was trying to do something wrong, [then] I might play with her breasts or something.” The defendant’s subsequent unnecessary illustration of his point by engaging in the act which he himself described as “wrong” betrayed an ulterior intent to obtain a measure, however slight, of sexual gratification.

Accordingly, we conclude the State’s evidence proved his guilt beyond a reasonable doubt of the offense of criminal sexual abuse.

The question of the variance between the information and the proof at trial arises by virtue of the fact the jury received the definítional and issues instructions relating to subsection (b)(1) of section 12 — 15 of the Code (relating to the certain ages of the accused and the victim), rather than subsection (a)(1) (used force or threat of force) as charged in the information. Subsection (b)(1) provided:

“The accused commits criminal sexual abuse if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 16 years of age when the act was committed.” (Ill. Rev. Stat. 1985, ch. 38, par. 12—15(b)(1).)

In contrast, subsection (a)(1) provided:

“The accused commits criminal sexual abuse if he or she:
(1) commits an act of sexual conduct by the use of force or threat of force.” Ill. Rev. Stat. 1985, ch. 38, par. 12—15(a)(1).

Pursuant to People’s instructions Nos. 13 and 14 (Illinois Pattern Jury Instructions, Criminal, Nos. 11.36, 11.37 (2d ed. Supp. 1987)) (IPI Criminal 2d (Supp. 1987)), the jury was instructed, in pertinent part:

“A person commits the offense of Criminal Sexual Abuse when he was 17 years of age or older and commits and [sic] act of sexual conduct with a victim who was at least 13 years of age but under 16 years of age when the act was committed.” People’s Instruction No. 13.
“To sustain the charge of Criminal Sexual Abuse, the State must prove the following propositions:
First: That the defendant committed an act of sexual conduct with [the complainant]; and
Second: That the defendant was 17 years of age or older; and
Third: That [the complainant] was at least 13 years of age but under 16 years of age when the act was committed.” People’s Instruction No. 14.

The defendant did not object to these instructions and did not tender any of his own. He did not object to withdrawal of People’s instruction No. 10, which defined the term “force,” to wit, “the term ‘force or threat of force’ means the use of force or violence, or the threat of force or violence when the accused has overcome the victim by use of physical confinement.” (See IPI Criminal 2d No. 11.63 (Supp. 1987).) The defendant also did not raise the instructional issue in either of his post-trial motions, and he raises the issue of variance for the first time in this court.

The record shows the defendant argued the absence of force during his motion for a directed verdict after the close of the State’s case, but his motion for a directed verdict was not renewed at the close of all the evidence, and he did not argue the absence of force during closing argument. Rather, he stated during closing argument: “There’s no doubt about the ages of the people involved here, and so that’s pretty easy. I think you can decide that very easily.” Thus, it is clear that defendant not only did not object to the erroneous instruction, he did not offer a correct issues instruction, and he acquiesced in the withdrawal of the definitional instruction of force. Finally, he conceded the irrefutability of the ages of the accused and the victim.

It is axiomatic that a defendant may not complain of error which he invited or in which he acquiesced. (People v. White (1985), 134 Ill. App. 3d 262; People v. Benka (1983), 117 Ill. App. 3d 221.) The defendant has not challenged the competency of his trial counsel, nor has he argued that the plain-error doctrine should be applied to preserve the issue. (See generally People v. Berryman (1988), 171 Ill. App. 3d 548, 559-61.) Consequently, we conclude he has waived this issue.

Briefly, on the merits, however, the record shows no fatal variance between the information and the proof at trial. The defendant relies on People v. Veile (1982), 109 Ill. App. 3d 847, in support of his contention. In Veile, the defendant was convicted by a jury upon an information charging aggravated battery causing bodily harm to a police officer. (Ill. Rev. Stat. 1979, ch. 38, pars. 12—4(b)(6), 12—3(a).) On appeal, the defendant claimed the State failed to prove any bodily injury. The court agreed, and it rejected the State’s alternate argument that any variance between the charge of bodily harm as opposed to merely insulting touching could not have misled the defendant since she maintained that she did not hit the officer at all. The court noted the State elected to charge the defendant with aggravated battery causing bodily harm and was bound by the information upon which it proceeded to trial. Inasmuch as the court was not called upon to render any opinion as to whether the actions of the defendant constituted a touching of an insulting or provoking nature, it did not s.o decide.

The defendant here knew what he was charged with and, unlike Veile, the evidence was sufficient to convict him of that charge. As the State argues, there is no variance here between the information and the proof at trial which showed force by physical confinement as discussed above. That there was also positive, direct evidence of the ages of the victim and the accused, which the defendant conceded during closing argument and the jury was instructed as to those elements without objection by the defendant, does not negate the proof of force shown in the record. To require a reversal, the variance between the proof and the charge “ ‘must be material and of such character as to mislead the accused in making his defense or expose him to double jeopardy.’ ” (People v. Bohm (1983), 95 Ill. 2d 435, 439, quoting People v. Johnson (1976), 65 Ill. 2d 332, 337.) The defendant was neither misled in his defense nor exposed to double jeopardy.

The defendant’s final contention is that the State failed to prove his guilt of the offense of criminal sexual abuse, where evidence of his prior sexual offense conviction — an essential element of its case — was not presented to the trier of fact, the jury. Section 12— 15(d) of the Code provides that criminal sexual abuse is a Class A misdemeanor but:

“A second or subsequent conviction for a violation of subsection (a) of this Section is a Class 2 felony. For purposes of this Section, it is a second or subsequent conviction if the accused has at any time been convicted under this Section or under any similar statute of this State or any other state for any offense involving sexual abuse or sexual assault that is substantially equivalent to or more serious than the sexual abuse prohibited under this Section.”

The State argues the defendant should be estopped from asserting this error, and we agree. The State concedes that, at the time the defendant was tried, a prior offense used to enhance the level of a subsequent conviction was an element of the subsequent offense which was to be pleaded in the charging instrument and proved at trial. (People v. Hicks (1987), 119 Ill. 2d 29; People v. Palmer (1984), 104 Ill. 2d 340.) However, it contends a defendant may be estopped from challenging on appeal the failure of the State to prove the prior conviction at trial where he agrees to or invites the error. People v. Hall (1986), 145 Ill. App. 3d 873; see also People v. Roberts (1985), 136 Ill. App. 3d 863, 866-67. But cf. People v. Nolan (1989), 188 Ill. App. 3d 251, 257-59 (where the court found the defendant was not estopped from claiming error in the exclusion of the evidence of his prior theft conviction pursuant to his motion in limine where the evidence of such conviction was otherwise excludable on the basis that conviction was invalid in that he did not knowingly waive his right to counsel, and where none of the parties in the instant cause were aware that the evidence of the prior theft needed to be presented to the jury).

It is clear from the instant record that the defendant concurred in the plan to withhold from the jury the certified copy of his 1978 conviction of rape in Ogle County. The certified copy of the conviction was offered and accepted into evidence, although not shown to the jury, and the defendant testified at the trial that he had prior felony convictions, although the nature of those convictions was not specified. Counsel and the court were all aware that proof of the prior conviction was an element of the offense to be proved, yet all concurred in not specifying to the jury the nature of the defendant’s prior felony conviction of rape.

Under these circumstances, we conclude that defendant is estopped from asserting it was error for the court to do exactly that which he agreed it should do.

For the reasons above, the judgment of the circuit court of Ogle County is affirmed.

Affirmed.

REINHARD and WOODWARD, JJ., concur.

      Compare now with Public Act 86—964, amending section 111—3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111—3), effective July 1, 1990, by adding, inter alia, subsection (c) as follows: “When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State’s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, ‘enchanced sentence’ means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5 — 5—1 of the ‘Unified Code of Corrections,’ approved July 26, 1972, as amended; it does not include an increase in the sentence applied within the same level of classification of offense.” (Emphasis added.)


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRI BROWN, Defendant-Appellant.
    Second District
    No. 2—87—0226
    Opinion filed April 6, 1990.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

This case comes before us for the second time. The defendant’s first appeal to this court was dismissed because she did not make a motion pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) to withdraw her guilty pleas to the Class 4 felony offense of driving under the influence of alcohol (involved in an accident resulting in great bodily harm) (Ill. Rev. Stat., 1986 Supp., ch. 951/2, par. 11—501(e)) and the Class A misdemeanor offense of leaving the scene of a motor vehicle accident involving personal injuries (Ill. Rev. Stat. 1985, ch. 951/2, pars. 11 —401(a), (c)). Two other misdemeanor counts of driving under the influence (Ill. Rev. Stat., 1986 Supp., ch. 951/2, pars. 11-501(a)(1), (a)(2)) were nol-prossed as lesser-included offenses.

The factual basis for the pleas presented by the prosecution showed that in Woodridge, Illinois, on October 9, 1986, Mary Grace was driving a car, in an eastbound lane, waiting to make a left turn. A car, driven by the defendant, headed westbound, crossed over an eight-foot wide median strip into the eastbound lanes, and struck Grace’s car on the driver’s-side door, spinning the Grace car around. Grace sustained a fractured vertebrae, a fractured pelvis and whiplash. Her infant son, also inside the car, was unhurt. After the collision, the defendant drove across the road through a parking lot and then on to her apartment. She was found thereafter in her apartment by the police, who detected a strong odor of alcohol on her breath. Her eyes were bloodshot and glassy, and she had difficulty walking. She admitted having had a drink in the morning. After failing a number of agility tests, she underwent a breathalyzer examination which indicated she had a blood-alcohol level of .37.

Following her guilty pleas in the instant cause, the defendant was sentenced on the felony DUI conviction to 30 months’ probation, the conditions of which included, inter alia, six months in the Du Page County jail and a $500 fine. On the misdemeanor leaving-the-scene-of-an-accident conviction, she was sentenced to a one-year term of probation, a condition of which was a six-month term in the Du Page County jail, such jail term “to be served at the conclusion of the term of incarceration” imposed on the felony DUI conviction. The defendant moved the court to reconsider these sentences, asserting the terms of incarceration constituted consecutive terms of imprisonment within the meaning of section 5 — 8—4 of the Unified Code of Corrections (Code of Corrections) and were improper because the offenses' were part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(a).) The court denied that motion, and the defendant’s subsequent appeal, as noted above, was dismissed.

The Illinois Supreme Court initially denied the defendant’s petition for leave to appeal from our dismissal. It later granted her motion for reconsideration, vacated the denial and allowed leave to appeal. In the exercise of its supervisory jurisdiction, the supreme court remanded the cause to us for further consideration in light of the its modified opinion in People v. Wilk (1988), 124 Ill. 2d 93.

In Wilk, the supreme court affirmed the dismissals of the direct appeals in two cases in which the respective defendants claimed ineffective assistance of counsel due to counsel’s failure to comply with Supreme Court Rule 604(d). (107 Ill. 2d R. 604(d).) The supreme court emphatically reaffirmed the necessity of compliance with Rule 604(d) before taking a direct appeal. In light of the defendants’ noncompliance with Rule 604(d) in the causes before it, it suggested the defendants’ proper avenue of relief was by way of post-conviction petition. In the two other cases involved in Wilk, the supreme court reversed and remanded the causes for review of the respective sentences imposed where each of the defendants, although not challenging his guilty plea, appealed the trial court’s denial of his motion to reconsider his sentence which was filed prior to filing the notice of appeal. Inasmuch as those defendants were not appealing their guilty pleas, the supreme court stated it was not necessary for them to file a Rule 604(d) motion.

In her reinstated appeal which we now consider, the defendant contends the consecutive sentences imposed are improper (1) where the offenses were part of a single course of conduct during which there was no substantial change in the nature of the criminal objective and (2) because she was not admonished that consecutive sentences were a possibility prior to entering her guilty plea. She further contends the sentences should be reversed and the cause remanded because the court misapprehended the statutory provision governing good behavior allowances in setting the length of the jail sentences.

The State concedes the latter issue, noting the record shows the court believed the defendant would receive a day-for-day good behavior allowance for each of the six-month terms and that the maximum time she would be incarcerated would be a total of six months. The court was mistaken, however. Good behavior allowance is not applicable to a defendant “who inflicted physical harm upon another person in committing the offense for which [she] is confined.” (Ill. Rev. Stat., 1986 Supp., ch. 75, par. 32.) Defendant’s conduct inflicted serious physical harm on Mary Grace, and, therefore, she would be excepted from the good behavior allowance. See People v. Wenkus (1988), 171 Ill. App. 3d 1064.

The record shows the court intended that the defendant be incarcerated for a maximum of six months. By virtue of section 3 of the County Jail Good Behavior Allowance Act, however, the defendant will be incarcerated — assuming good behavior — a total of nine months. (Ill. Rev. Stat., 1986 Supp., ch. 75, par. 32.) Accordingly, we agree with the defendant and the State that vacation of the defendant’s sentences and remand for resentencing are warranted.

Because it may arise on remand, we proceed to address one of the remaining issues raised by the defendant. She contends the two six-month periods of incarceration imposed were improper consecutive sentences under section 5 — 8—4(a) of the Code of Corrections. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(a).) The State argues the instant terms of incarceration were conditions of probation, not sentences of imprisonment, and, therefore, they are not subject to the provisions of section 5 — 8—4 of the Code of Corrections.

We agree the two six-month periods of incarceration are conditions of the defendant’s terms of probation. However, section 5 — 6— 2 of the Code of Corrections provides that “[m]ultiple terms of probation imposed at the same time shall run concurrently,” and section 5 — 6—3(d) of the Code of Corrections prohibits as a condition of probation a period of imprisonment in excess of six months. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-6-2(b), 1005-6-3(d).) This court has previously been led to the natural and logical conclusion that conditions of multiple sentences of probation are to be served concurrently as well. (People v. Tedford (1983), 112 Ill. App. 3d 603, 605-06.) Accordingly, the periods of incarceration imposed on the defendant as conditions of her terms of probation were improperly ordered to be served consecutively.

In light of the above discussion, it is unnecessary for us to consider the defendant’s remaining contention that the consecutive sentences were improper because she was not admonished as to the possibility of such sentences before she pleaded guilty. Moreover, we view her argument as to this latter issue as an untimely and improper challenge to the voluntariness of her guilty pleas.

For the reasons above, the defendant’s sentences of probation and the attendant terms of incarceration are vacated, and the cause is remanded for resentencing consistent with this opinion.

Judgments of conviction affirmed; sentences vacated and cause remanded.

REINHARD and INGLIS, JJ., concur.