author: JUSTICE WOODWARD

text:
    ORGANIC WASTE SYSTEMS, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Ronald Blackburn, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4—92—0113WC
    Opinion filed February 18,1993.

      Stevenson, Rusin & Friedman, Ltd., of Chicago (Gregory G. Vacala and Jeanmarie Calcagno, of counsel), for appellant.
    Bucklin & McIntyre, P.C., of Springfield (Bradford C. Bucklin, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Claimant, Ronald Blackburn, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). Therein, he alleged back injuries arising out of and in the course of his employment with the employer, Organic Waste Systems. After a hearing held on May 3, 1989, the arbitrator denied compensation, finding that claimant failed to prove that his condition was causally connected to the subject accident. On review, the Industrial Commission (Commission) reversed the arbitrator’s decision and awarded temporary total disability (TTD) for 551/? weeks. The Commission also found that claimant was permanently and partially disabled to the extent of 15% of the man as a whole and, further, was entitled to compensation for $14,845.15 in medical expenses. The circuit court confirmed the Commission’s decision. This timely appeal followed.

Before this court, the employer raises two issues, namely, (1) the Commission’s decision as to causal connection was against the manifest weight of the evidence; and (2) the Commission’s award of permanent partial disability (PPD) at a rate of $426 per week was error.

At the arbitration hearing, claimant testified that on September 6, 1986, he was working for the employer. His task primarily consisted of operating and maintaining submersible water pumps which were pumping out a waste lagoon. At about 9 a.m., claimant was removing a 4 by 4 from the lagoon when his foot slipped, and he fell about three feet. Later in the morning, claimant was pulling a section of plastic irrigation pipe out of the lagoon. Again, his feet slipped, and he fell down an embankment, landing on his tailbone. He tried to get up but felt a pinching type of pain in his lower back or buttocks. After climbing up the embankment, claimant sat down for about 40 minutes. That morning he told his supervisor, Larry Blessing, about his accident.

On September 7, 1986, claimant phoned Blessing, saying that the pain was worse and that he would not be able to work on September 8. Claimant called his family physician, Dr. Steven Kozak, for an appointment and was seen on September 9. Claimant told Dr. Kozak that he had fallen twice on his buttocks while at work. On examining claimant, Dr. Kozak found that he was mildly tender in the left paraspinal muscles at the lumbosacral junction. Claimant had a positive straight leg raising test on the left leg at 15 degrees elevation. Also, the right side straight leg raising maneuver gave pain in the left leg. At some point during the treatment of his condition, claimant told Dr. Kozak that he had no prior back or leg problems. On September 14, 1986, Dr. Kozak had claimant undergo a CT scan and then referred him to Dr. Haymer, a board-certified neurosurgeon.

Dr. Haymer examined claimant on September 22, 1986. At that time, claimant stated that he had fallen twice while working on September 6. Dr. Haymer examined claimant’s lower back, spinal nerves and lower extremities. He reviewed the CT scan results and determined that claimant had an unspecified type of tumor in his lumbar area. In a surgical procedure performed on September 30, at which Dr. Kozak assisted, Dr. Haymer removed part of a tumor located in the spinal canal. Fearful of causing paraplegia, Dr. Haymer did not remove all of the tumor, which was determined to be a lipoma, or a nonmalignant fatty tumor.

After this surgery, claimant’s lower back pain diminished substantially. In November 1986, claimant complained of pain on the top of his left foot. Claimant also experienced numbness in his left calf and also loss of left ankle reflex, the latter objectively determined by Dr. Haymer.

In May 1987, claimant briefly returned to work but experienced a recurrence of his lower back pain. In July 1987, claimant underwent a myelogram. On August 18, 1987, Dr. Haymer performed surgery on claimant, again assisted by Dr. Kozak. The disc at L4-L5 was normal, but Dr. Haymer partially removed the joint at the L4-L5 level, having determined that it was arthritic. On September 28, 1987, claimant returned to work without restrictions.

At the arbitration hearing, claimant testified that he experienced a crick in his back after stooping or bending to lift an object. Claimant further stated that when he was involved in heavy lifting his back began to hurt. Also, his left foot pain was continuous. Claimant takes aspirin to diminish said pain.

Dr. Haymer’s first evidence deposition was taken on August 25, 1987, shortly after the surgery to remove part of the arthritic joint. Dr. Haymer opined that trauma to either the lipoma or the arthritic joint at L4-L5 might have or could have caused claimant’s symptoms of lower back and leg pain and numbness in his left leg. In his second evidence deposition, taken on October 4, 1988, Dr. Haymer stated that claimant had returned to work on September 28, 1987. He opined that claimant’s back, leg and foot conditions could or might be permanent.

Dr. Steven Kozak’s evidence deposition was taken on February 28, 1989. Dr. Kozak opined that claimant’s back and left leg pain were related to his fall on September 6, 1986. Moreover, he stated that claimant’s left foot pain is related to “nerve radicular symptoms,” arising out of his lower back problems. Dr. Kozak added, “[M]y opinion is that the pain [claimant] has suffered is directly related to his fall we have been discussing. I am as yet still not clear in my own mind what the exact mechanism of that pain is and probably will never know.” Dr. Kozak thought that claimant’s back and foot pain, due to the subject fall, “may well be permanent.”

The employer first argues that the Commission’s decision as to causal connection was against the manifest weight of the evidence. It is within the Commission’s province to determine questions regarding causal connection, and its findings will not be overturned unless they are against the manifest weight of the evidence. (Frigo v. Industrial Comm’n (1990), 199 Ill. App. 3d 880, 557 N.E.2d 624.) Moreover, it is well established that a finding of a causal relationship may be based on a medical expert’s opinion that an accident “could have” or “might have” caused an injury. (Mason & Dixon Lines, Inc. v. Industrial Comm’n (1983), 99 Ill. 2d 174, 457 N.E.2d 1222.) Further, a chain of events which demonstrates a previous condition of good health, accident and subsequent injury resulting in disability may be circumstantial evidence to prove a causal nexus between the accident and claimant’s injury. International Harvester v. Industrial Comm’n (1982), 93 Ill. 2d 59, 442 N.E.2d 908.

The employer argues that the court should reinstate the arbitrator’s decision because there is no evidence of causation. Further, the employer contends that the Commission has, in effect, shifted the burden of proving causation to it. Also, the employer maintains that the testimony of Drs. Haymer and Kozak do not support the Commission’s conclusion as to causation.

These arguments miss the point. The unrebutted testimony of both claimant’s treating physicians, Dr. Haymer and Dr. Kozak, is that the two possible causes of his lower back, left leg and foot pain are the arthritic joint and the lipoma, both located at L4-L5. Each physician testified that the subject falls of September 6, 1986, could have or might have aggravated either or both the arthritic joint or the lipoma. Dr. Kozak based his view in part on the fact that claimant gave a history of no back or leg problems prior to the subject falls.

Claimant’s unrebutted testimony supports the conclusions of Drs. Haymer and Kozak. He had no lower back or leg problems prior to the fall. He had not missed any work for at least four years prior to his falls. The histories he gave each of his treating physicians was consistent, namely, he experienced substantial back and leg pain after the falls on September 6,1986.

Given this record, we find that claimant came forward with sufficient evidence to carry his burden of proving a causal connection between the falls on September 6, 1986, and his subsequent lower back, left leg and left foot problems. The employer offered no evidence to rebut claimant’s case. Accordingly, we hold that the Commission’s decision as to causal connection is not against the manifest weight of the evidence.

Finally, the employer argues that the Commission’s award of 75 weeks of PPD at $426 per week was erroneous. The relevant statute reads in pertinent part: “The maximum weekly compensation rate, for the period July 1, 1984, through June 30, 1987, *** shall be $293.61.” (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(b)(4).) Because the subject accident occurred within this period, we modify the Commission’s PPD award. The PPD compensation rate is reduced from $426 per week to $293.61 per week.

For reasons stated above, the judgment of the circuit court is affirmed as modified.

Affirmed as modified.

McCULLOUGH, P.J., and RAKOWSKI, STOUDER, and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE JONES, Defendant-Appellant.
    Fourth District
    No. 4—92—0652
    Opinion filed February 25,1993.
    Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderm an, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Steve Jones pleaded guilty to the offense of unlawful restraint (Ill. Rev. Stat. 1991, ch. 38, par. 10 — 3(a)). He was sentenced to two years in the Department of Corrections, this sentence to run consecutively with a sentence already being served on a conviction for aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(1)). Although not mentioned at the sentencing hearing, the written sentencing order denied defendant any sentence credit for time previously served. Defendant filed a pro se motion to withdraw his guilty plea, and this motion was denied. Defendant appeals, claiming the trial court erred in denying him 121 days of sentence credit for time spent incarcerated prior to his conviction in this case. We affirm.

On August 4, 1991, defendant was arrested and incarcerated on an unrelated case (Adams County case No. 91 — CF—369). On January 9, 1992, while still in custody for the prior offense, defendant was indicted on the charges underlying the case at hand. Two months later, on March 6, 1992, defendant was sentenced on the prior unrelated offense and received 219 days of sentence credit for time previously served. This sentence credit reflects the time from his initial arrest on August 4, 1991, until his sentencing on March 6, 1992. Two months later, on May 8, 1992, defendant was sentenced on the case now before us. He was sentenced to two years’ incarceration, to run consecutively to the sentence imposed on the unrelated offense, with no credit for time served. Defendant claims he is entitled to 121 days’ credit, representing the time between his indictment on January 9, 1992, and his conviction on May 8,1992.

Section 5 — 8—7(b) of the Unified Code of Corrections (Code) provides that a defendant is entitled to credit against his sentence “for time spent in custody as a result of the offense for which the sentence was im/posed.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8— 7(b).) The question before us is whether defendant’s time spent in custody was a result of the unlawful restraint indictment on January 9, 1992, or as a result of his prior arrest and conviction for aggravated criminal sexual assault. A third option would involve a determination that defendant was in “simultaneous custody” for the time served after his January 9, 1992, indictment. A review of case law on this subject reveals a surprising number of imaginative and highly complex solutions to this problem. The law in this area is quickly approaching a state where substantiation may be found for nearly any result.

Frustrated and confounded by a mind-numbing array of unique factual situations leading toward ever-differing results, we cannot help but yearn for simpler times. These halcyon days are represented in our decision in People v. Krankel (1985), 131 Ill. App. 3d 887, 476 N.E.2d 777, where we held that sentence credit was properly denied where time served awaiting sentence on the instant offense was applied to a prior, unrelated sentence.

Our court faced a similar question in People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112, where we found the facts in Krankel distinguishable because the defendant’s sentence was ordered to run consecutively to the sentence handed down on the prior offense. In contrast, defendant’s sentence in Bradney was to run concurrently with the sentence he was already serving. Accordingly, we adopted a ruling of the Fifth District Appellate Court, which held that a defendant serving a sentence for a previous offense, who fails to post bond while awaiting trial or sentencing on a second charge, is entitled to credit on the sentence for the second offense for the period of incarceration between the date he or she was charged with the second offense and the date sentence was imposed for that offense. (People v. Higgerson (1987), 157 Ill. App. 3d 564, 510 N.E.2d 574.) Our rationale in adopting this rule was:

“[E]ven if the defendant were not serving a sentence for the first offense, he or she would still be subject to detention as a result of his or her failure to post bond with respect to the second charge. Thus ***, the defendant is incarcerated as a result of both offenses prior to being sentenced for the second offense.” (Emphasis added.) Bradney, 170 Ill. App. 3d at 870-71, 525 N.E.2d at 132.

Both Bradney and Higgerson rely heavily on the fact that the defendants failed to post bond with respect to their second offenses. The question naturally arises whether anything would have changed had the defendants posted bond on their second offenses. The glaring conclusion is that nothing would have changed — the defendants would have remained in custody on the prior offense. To conclude that defendant’s failure to engage in a meaningless act entitles him to an acknowledgement of simultaneous custody requires a stretch of the imagination which we are not now willing to make.

As stated earlier, section 5 — 8—7(b) of the Code provides that the offender shall be given credit “for time spent in custody as a result of the offense for which the sentence was imposed.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—7(b).) A strict reading of the statute requires that credit be given only when defendant’s incarceration is due solely to the offense for which the sentence was imposed. In his well-reasoned dissent in Bradney, Justice McCullough argued that Krankel should not be distinguished, sagely declaring that this is not a concurrent-consecutive problem. Positing theories involving “simultaneous custody,” availability or failure to make bond, exceptions for sentences originating from different counties, or exceptions involving consecutive or concurrent sentences, and submerging these theories in a myriad of unique, factual details, serves only to cloud the interpretation of what should be a simple statutory requirement.

Our prior holding in Krankel achieves this clear-cut result. Sentence credit will not be given for those days spent serving a prison term for a prior, unrelated offense. We find no other rule simpler in application, more uniform in result, or more true to the dictates of section 5 — 8—7(b) of the Code. Under the Code, a defendant serving a sentence from another State or district court of the United States may be granted credit for time served, but no similar legislative provision applies to the facts here. (Ill. Rev. Stat. 1991, ch. 38, pars. 1005 — 8—1(e), (f).) In the case before us, we find that the trial court’s denial of sentence credit fully complied with statutory requirements.

Finally, the State argued that our court was required to dismiss this appeal on jurisdictional grounds. The State maintains that under People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334, a motion to reconsider sentence is a prerequisite to an appeal dealing solely with sentencing issues. Defendant did not file a motion to reconsider, nor did his motion to withdraw the guilty plea mention sentencing issues.

Our court has held that section 5 — 8—7(b) of the Code creates a statutory right to credit for time served that is not waived by failure to call the error to the trial court’s attention. (People v. Donnelly (1992), 226 Ill. App. 3d 771, 779, 589 N.E.2d 975, 980.) We note that Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) was amended effective August 1, 1992 (Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. Aug. 1, 1992), and that amendment would prohibit an appeal solely for the purpose of challenging the sentence unless a motion to reconsider the sentence has been duly filed in the trial court. The appeal in this case preceded the effective date of the change. The issue is not now before this court as to whether Rule 604(d), as amended, would, absent a motion to reconsider sentence, prevent appellate review of the application of section 5 — 8—7(b) of the Code.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. NEIL MARTY, Defendant-Appellee.
    Fourth District
    No. 4—92—0396
    Opinion filed February 25, 1993.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Lerner & Kirchner, of Champaign (Arthur M. Lerner, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant, Neil Marty, was charged with driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 95V2, par. ll-501(aX2)) and driving without headlights when required (Ill. Rev. Stat. 1989, ch. 951/2, par. 12 — 201(b)). At trial, the prosecutor questioned the arresting officer regarding whether defendant was read his Miranda rights and whether defendant refused to answer questions presented to him by the officer while he was in custody. The witness testified he read defendant his rights and defendant refused to answer questions. Defendant immediately requested a mistrial, which was allowed. Thereafter, the trial court dismissed the charges with prejudice. The State appeals, and we reverse and remand.

On January 11, 1992, at approximately 12:40 a.m., Mark Medlyn, a police officer with the Champaign police department, saw a vehicle being driven with only its parking lights on, even though the hour required the use of headlights. Medlyn noticed the vehicle made a wide right turn and straddled the lanes. Medlyn followed the vehicle. The driver parked in a parking spot in front of the Tumble Inn bar, at which time Medlyn activated his squad car lights. When Medlyn approached the car he noticed a moderate odor of alcohol on defendant’s breath. Upon questioning, defendant indicated he had consumed a couple of beers. Defendant failed to successfully perform some sobriety tests requested of him by Medlyn.

Defendant was placed under arrest and transported to the police station. Medlyn read the “warnings to motorists” (which advises motorists about the various penalties for refusing to take a breath test) to defendant. Defendant indicated he understood the contents of the document and thereafter refused to submit to a breath test. Medlyn read defendant his Miranda rights and asked defendant to answer some questions. Defendant refused to answer any further questions. Defendant was then charged with DUI and driving without headlights when required.

The case was called for jury trial in April 1992. The prosecutor gave her opening statement as to what she believed the evidence would show. Defense counsel gave his opening statement regarding how he felt the evidence would differ from that described by the prosecutor. Additionally, defense counsel told the jury the evidence would show after defendant was brought to the police station he was given his Miranda warnings, “and he refused to answer any questions.”

Medlyn, the State’s first witness, testified it was his opinion defendant was under the influence of alcohol since (1) defendant was driving without headlights, made wide turns from street to street, and did not drive in a single lane but straddled two lanes; and (2) he smelled alcohol on defendant’s breath, and defendant admitted having consumed beer and failed to successfully perform the field-sobriety tests. During direct examination of Medlyn, the prosecutor asked how defendant responded after Medlyn read defendant his Miranda rights. Medlyn testified defendant had refused to answer any further questions after being read his Miranda rights. Defense counsel then moved for mistrial and the trial court granted the motion. Subsequently, the trial court granted a mistrial and dismissed the charges with prejudice. This appeal followed.

I. Can The State Appeal The Dismissal?

Defendant has filed a motion to dismiss the appeal, arguing (1) Supreme Court Rule 604 (134 Ill. 2d R. 604) does not allow the State to appeal under the circumstances of this case, and (2) the State did not file a post-trial motion. Under Rule 604, the State may appeal from an order suppressing evidence or from “an order or judgment the substantive effect of which results in dismissing a charge for any grounds enumerated in section 114 — 1 of the Code of Criminal Procedure [of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 114-1)].” (134 Ill. 2d R. 604; see People v. Bean (1985), 135 Ill. App. 3d 336, 338-39, 481 N.E.2d 888, 890.) Section 114 — 1 of the Code lists a variety of grounds on which a charge may be dismissed, but only by way of pretrial motion. (Bean, 135 Ill. App. 3d at 338-39, 481 N.E.2d at 890.) Here, the dismissal was not at the pretrial stage. The jury had already been sworn, opening arguments had been made and the State had called its first witness to testify. Consequently, the dismissal did not fall within the list of pretrial dismissals enumerated in section 114 — 1 of the Code. Bean, 135 Ill. App. 3d at 339, 481 N.E.2d at 890; People v. Dellecarto (1978), 67 Ill. App. 3d 490, 495, 384 N.E.2d 902, 906.

The State’s right to appeal is not, however, limited to those orders specifically listed in section 114 — 1 of the Code. (People v. Luallen (1989), 188 Ill. App. 3d 862, 864, 544 N.E.2d 1206, 1208; Bean, 135 Ill. App. 3d at 339, 481 N.E.2d at 890.) The State has the right to appeal in any case of judgment the effect of which resulted in the dismissal of a charge. (People v. Lawson (1977), 67 Ill. 2d 449, 455, 367 N.E.2d 1244, 1247; People v. Love (1968), 39 Ill. 2d 436, 439, 235 N.E.2d 819, 821-22; Luallen, 188 Ill. App. 3d at 864, 544 N.E.2d at 1208; Bean, 135 Ill. App. 3d at 339, 481 N.E.2d at 890.) The charges were dismissed here; consequently, the State has the right to appeal the trial court’s order.

As to the State’s failure to file a post-trial motion, neither Supreme Court Rule 604 nor section 114 — 1 of the Code places a requirement upon the State to file any type of post-trial motion to perfect an appeal. If the legislature or the supreme court intended to place such a requirement upon the State, it could have done so. We note, for example, Supreme Court Rule 604(d), regarding appeal by a defendant from judgment entered upon a plea of guilty, requires the defendant, within 30 days of the date on which the sentence is imposed, to file a motion to withdraw his guilty plea in order to perfect the issue for appeal. (134 Ill. 2d R. 604(d).) Likewise, section 116 — 1 of the Code, which pertains to motions for new trial, requires the defendant to file such motion within 30 days of the verdict or finding of guilty and such motion must specify the grounds for the court to grant a new trial (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1); and section 116 — 2 of the Code, which pertains to motions in arrest of judgment, requires the defendant to file such motion within 30 days of the verdict or finding of guilty and the section also sets out the grounds for the court to grant such a motion (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 2). Accordingly, we deny defendant’s motion to dismiss.

II. Did The Trial Court Err In Dismissing The Charges?

On appeal, the State argues the trial court erred in dismissing the charges with prejudice. The double jeopardy clause of the United States Constitution, enforceable against the State through the fourteenth amendment (U.S. Const., amend. XIV), provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ***.” (U.S. Const., amend. V.) Section 10 of article I of the Illinois Constitution provides the same protection. Ill. Const. 1970, art. I, §10; People v. Ortiz (1992), 151 Ill. 2d 1, 9, 600 N.E.2d 1153, 1156.

The doctrine of double jeopardy prevents the reprosecution of persons who are acquitted of a criminal offense. (United States v. Scott (1978), 437 U.S. 82, 88, 57 L. Ed. 2d 65, 72, 98 S. Ct. 2187, 2192; Ortiz, 151 Ill. 2d at 9, 600 N.E.2d at 1156.) Double jeopardy attaches when the jury is impanelled and sworn. (People ex rel. Roberts v. Orenic (1981), 88 Ill. 2d 502, 507, 431 N.E.2d 353, 356; Bean, 135 Ill. App. 3d at 339, 481 N.E.2d at 891.) However, the rules governing double jeopardy should not be applied mechanically when the interests they protect are not endangered and when their mechanical application would frustrate society’s interests in enforcing its criminal laws. (People v. Deems (1980), 81 Ill. 2d 384, 388, 410 N.E.2d 8, 10.) The Illinois Supreme Court has held “ ‘ “the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” ’ Serfass v. United States (1975), 420 U.S. 377, 390, 43 L. Ed. 2d 265, 275, 95 S. Ct. 1055, 1064, quoting [Illinois v.] Somerville [(1973)], 410 U.S. [458,] 467, 35 L. Ed. 2d [425,] 433, 93 S. Ct. [1066,] 1072.” (Ortiz, 151 Ill. 2d at 10, 600 N.E.2d at 1156.) If the circuit court’s order is functionally indistinguishable from a declaration of mistrial, double jeopardy may not preclude reprosecution. Ortiz, 151 Ill. 2d at 11, 600 N.E.2d at 1157.

We first consider whether the trial court’s order is more like an acquittal or a dismissal of charge. (See Ortiz, 151 Ill. 2d at 10, 600 N.E.2d at 1156; Bean, 135 Ill. App. 3d at 340, 481 N.E.2d at 891.) Defendant contends the trial court’s dismissal with prejudice was an acquittal. The State disagrees, arguing the trial court’s dismissal was based neither on defendant’s guilt or innocence, nor on the insufficiency of the evidence. If it is an acquittal, double jeopardy precludes reprosecution. See Scott, 437 U.S. at 88, 57 L. Ed. 2d at 72, 98 S. Ct. at 2192; Ortiz, 151 Ill. 2d at 9, 600 N.E.2d at 1156.

Defendant relies on Bean. There, after the jury was impanelled and sworn and the parties made opening statements, the trial court ordered a recess to await the arrival of the State’s witnesses. After two hours the witnesses had not arrived and the State requested a recess until the following morning. Defendant moved to dismiss the residential burglary charge against him for want of prosecution, whereupon the trial court denied the State’s motion for a continuance and granted defendant’s motion to dismiss. On appeal, the court found that the State simply failed to produce sufficient evidence to convict the defendant and, as such, the order amounted to an acquittal. Bean, 135 Ill. App. 3d at 341, 481 N.E.2d at 891-92.

Here, however, it was not the failure of the State to produce sufficient evidence which caused the trial court to grant the mistrial with prejudice, but a perceived violation of defendant’s fifth amendment rights. This court has held double jeopardy does not bar a subsequent prosecution where the trial court granted a mistrial based, not on a resolution of defendant’s guilt or innocence, but on a perceived due process problem concerning the State’s failure to preserve a valuable piece of evidence. (Luallen, 188 Ill. App. 3d at 864, 544 N.E.2d at 1207.) We conclude this order was not an acquittal as it was not based on a jury verdict of not guilty or a ruling by the trial court that the evidence was insufficient to convict. Scott, 437 U.S. at 91, 57 L. Ed. 2d at 74, 98 S. Ct. at 2194.

We next consider whether the trial court abused its discretion in granting the mistrial with prejudice and dismissing the charge against defendant. (Ortiz, 151 Ill. 2d at 12, 600 N.E.2d at 1157.) In determining whether a trial court abused its discretion in granting a midtrial dismissal, we must determine whether there was a manifest necessity for the order. Ortiz, 151 Ill. 2d at 11, 600 N.E.2d at 1157; People v. Laws (1963), 29 Ill. 2d 221, 225,193 N.E.2d 806, 808.

Generally, when a defendant deliberately chooses “to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence,” the State is not barred from reprosecuting him. (Scott, 437 U.S. at 98-99, 57 L. Ed. 2d at 79, 98 S. Ct. at 2198.) Prosecutorial conduct which may be viewed as overreaching or harassment, even if sufficient to justify the trial court’s grant of a mistrial, is not a bar to reprosecution unless the prosecutor intended to “goad” defendants into moving for a mistrial. (Oregon v. Kennedy (1982), 456 U.S. 667, 675-76, 72 L. Ed. 2d 416, 424-25, 102 S. Ct. 2083, 2089; see also People v. Gomez (1980), 84 Ill. App. 3d 785, 788, 406 N.E.2d 886, 888.) Here, there was no evidence the prosecutor attempted to “goad” defendant into moving for a mistrial (Kennedy, 456 U.S. at 676, 72 L. Ed. 2d at 425, 102 S. Ct. at 2089) and, in granting the dismissal, the trial court noted, “I don’t believe that this is a matter that there was any thought that there was a violation of the Defendant’s right by the prosecutor, so I don’t believe that this is a blatant disregard for the Defendant’s rights.” Double jeopardy did not require the trial court to dismiss the charge (see Luallen, 188 Ill. App. 3d at 864, 544 N.E.2d at 1207), and there was no manifest necessity for the midtrial dismissal. Ortiz, 151 Ill. 2d at 16, 600 N.E.2d at 1159.

While the trial court’s grant of a mistrial was within its discretion (Laws, 29 Ill. 2d at 225, 193 N.E.2d at 808), the trial court abused its discretion when it granted a midtrial dismissal in favor of defendant’s motion to dismiss “before there was any determination of factual guilt or innocence.” Ortiz, 151 Ill. 2d at 13, 600 N.E.2d at 1158.

We reverse and remand to the circuit court of Champaign County for a new trial.

Reversed and remanded.

STEIGMANN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDOLPH NIXON, Defendant-Appellant.
    Fourth District
    No. 4—92—0542
    Opinion filed February 25, 1993.
    Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In March 1992, defendant, Randolph Nixon, pleaded guilty to two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(d)) in exchange for the State’s dismissing a charge of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 13(a)(1)) involving the same victim. The parties’ plea agreement imposed no restrictions upon the sentences the court could impose except that they would not be consecutive sentences.

In April 1992, after the trial court conducted a sentencing hearing, it sentenced defendant to 6V2 years in prison on each conviction and directed those sentences to be served concurrently. The court also ordered defendant to pay restitution in the sum of $14,632.64 “within two years of [defendant’s] discharge from the Department of Corrections.” Defendant later filed a motion to reduce his sentence, which the trial court denied. On appeal, defendant’s sole argument is that the trial court erred when it established a restitution payment schedule that could extend beyond five years. We agree and remand this case to the trial court with directions to amend its order of restitution.

Section 5 — 5—6 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6) governs orders of restitution. In pertinent part, that section reads as follows:

“[T]he court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate the offender may be sentenced to make restitution which shall be determined by the Court as hereinafter set forth:
* * *
(f) Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f).

This appeal requires us to construe the directive within section 5 — 5—6(f) of the Code that the court “shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f).) The question is, five years from when? Defendant argues that the answer is five years from the sentencing hearing at which the court imposes the restitution order. The State argues that any definitive five-year period, such as the five-year period after defendant’s release from the Department of Corrections, would meet the five-year requirement. We agree with defendant’s interpretation. By so holding, we reaffirm the decision of this court in People v. Fisher (1989), 186 Ill. App. 3d 255, 266, 542 N.E.2d 1127, 1134, where we held that the trial court’s restitution order was erroneous because the court ordered defendant to pay restitution within two years after his release from his 15-year prison sentence.

In reaching this conclusion, we note that the introductory paragraph of section 5 — 5—6 of the Code speaks of the trial court’s determining at the sentencing hearing whether to impose an order of restitution. If the court determines at that hearing to do so, then the court must make the terms of that order conform to the requirements of paragraphs (a) through (n) of that section, which follow the introductory paragraph. Section 5 — 5—6(f) of the Code contains the directive that the order of restitution shall be for “a period of time not in excess of 5 years.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(f).) Thus, the only definitive point in time discussed in section 5 — 5—6 of the Code to which paragraph (f) could be referring as the starting point (from which the order of restitution’s five-year period is to be measured) is the sentencing hearing referred to in the introductory paragraph of section 5 — 5—6 of the Code.

Defendant correctly asserts that the restitution order in this case will almost certainly extend beyond five years from his sentencing hearing. Defendant points out that even if he avoids losing any good conduct credits under section 3 — 6—3(c) of the Code — a dicey proposition at best — he will still have to serve approximately three years and three months on his 6^2 year prison sentence. (Ill. Rev. Stat. 1991, ch. 38, par. 1003 — 6—3(c).) Thus, he argues that the court’s order of restitution, requiring him to pay the restitution within two years of his release from prison, will effectively extend the period in which to pay restitution beyond the five-year period from the date on which the court entered the restitution order.

The State cites People v. Chapin (1992), 233 Ill. App. 3d 28, 35, 597 N.E.2d 1250, 1255, in support of its argument that any definitive five-year period suffices under section 5 — 5—6(f) of the Code. In Chapin, the Third District Appellate Court addressed a situation in which the trial court sentenced defendant to five years in prison and also ordered him to pay several thousand dollars in restitution “within the term of [defendant’s] mandatory supervised release.” (Chapin, 233 Ill. App. 3d at 35, 597 N.E.2d at 1255.) The defendant in Chapin presented the same argument as defendant in the present case — that the appellate court must vacate the order of restitution because that order required defendant to pay restitution beyond the five-year period required by section 5 — 5—6(f) of the Code. The court in Chapin responded as follows:

“Initially, we note that while the court did not define a payment schedule as called for in [section 5 — 5—6(f) of the Code], the order called for payment to be made within a definite time following the defendant’s release from prison. Given the fact that it would be impossible to determine what the defendant would be earning, or how often he would be paid at that future time, the court’s order was reasonable. [Citation.]
Furthermore, we do not read the above-cited statute as requiring restitution to be made within five years of the date of the restitution order. Instead, we interpret it to mean that payment must be made within a five-year period. See People v. Lambert (1990), 195 Ill. App. 3d 314, 552 N.E.2d 300.” Chapin, 233 Ill. App. 3d at 35, 597 N.E.2d at 1255.

We respectfully disagree with the third district’s interpretation of section 5 — 5—6(f) of the Code and adhere to our earlier decision on this point in Fisher. If the Chapin court were correct, when a defendant receives a lengthy prison sentence coupled with an order to pay restitution after defendant’s release from prison, the restitution order might not become effective for decades. Although, as a matter of policy, we do not believe such a result either unreasonable or inherently unwise, we conclude that the legislature did not intend this result when it enacted section 5 — 5—6(f) of the Code. If the legislature wishes to achieve such a result, it should amend section 5 — 5—6(f) of the Code to clarify its intent.

As a last matter, we note that this court wrote the Lambert decisión, which the Third District Appellate Court in Chapin cited as authority for its holding that an order of restitution may go beyond five years from the date of the sentencing hearing. We have reviewed Lambert, we adhere to its holdings, and we find no support therein for the conclusion the third district reached in Chapin.

For the reasons stated, we remand to the trial court with directions to amend its order of restitution in accordance with section 5 — 5—6(f) of the Code and the views expressed herein.

Affirmed and remanded with directions.

KNECHT and LUND, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES M. HESS, Defendant-Appellant.
    Second District
    No. 2—91—0716
    Opinion filed February 22,1993.
    Alan W. Cargerman, of Fearer, Nye, Ahlberg & Chadwick, of Oregon, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Daniel P. Merriman, Assistant State’s Attorney, and William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, James Hess, appeals from a judgment of the circuit court of Ogle County sentencing him to seven years’ imprisonment upon the revocation of his probation.

After a hearing which resulted in the revocation of his four-year term of probation, on June 24, 1991, the trial court summarily sentenced defendant to the maximum term of seven years’ imprisonment. Defendant had originally pleaded guilty in July 1987 to a charge of aggravated criminal sexual abuse of a stepdaughter who was under the age of 13 (see Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(cXl)). At the sentencing hearing in August 1987, the court considered, among other things, a presentence report as well as the opinions of psychologists. As a condition of probation, the court sentenced defendant to 30 months’ periodic imprisonment, required court-approved counseling, and restricted contact with the victim and her (his) family except through counselors or attorneys, and required defendant to pay for his stepdaughter’s counseling fees.

Defendant failed to file a post-sentencing motion. He appeals from the final judgment of revocation and the sentencing judgment. The thrust of defendant’s arguments challenges the manner in which he was sentenced. He argues that the trial court erroneously resentenced him without considering a new or updated presentence report after nearly four years had elapsed and the court failed to follow the statutory requirements for a hearing in aggravation and mitigation and failed to give him an opportunity to be heard. The defendant concludes that the trial court did not give adequate, judicious consideration to the existing circumstances of the defendant at the time of sentencing and requests a remand of the cause for resentencing before a different judge.

We agree that the sentencing procedure employed here was so fundamentally deficient that we have no choice but to vacate the sentence.

Defendant began serving his periodic imprisonment in August 1987 in Ogle County. He was transferred in December to Winnebago County, where he was working. He was also released periodically for religious instruction. The record reveals that defendant received psychological counseling from Dr. Dudgeon and later continued counseling with Dr. Michalek in Rockford, Illinois, until May 1988. From August 1988, defendant received counseling from Dr. Edward Glenn, a psychiatrist, and participated in weekly group therapy sessions with Sexual Addicts Anonymous, a support group.

The testimony of defendant’s wife Karen at the original sentencing hearing shows that she filed for divorce and sought counseling from Elise Cadigan, a psychiatric social worker, with the victim, K., and the two younger children of Karen’s marriage with defendant. The three children had become fearful of the defendant. Karen and the children continued to live in Byron, Illinois.

It appears from the record that, on three occasions in October and November 1988, Karen brought the children for supervised visitations with defendant at the Winnebago County work-release facility, with Dr. Glenn’s knowledge. The probation officer’s report alleged that the visits were not made with the approval of the probation department or through counselors or attorneys according to the probation order. On November 30, 1988, the State petitioned for the revocation of defendant’s probation on this basis. At the evidentiary hearing on December 22,1988, the court granted a directed finding for defendant.

On January 5, 1989, the court also heard defendant’s petition for a diminution of his periodic imprisonment. The court considered the testimony of Drs. Michalek and Glenn and the testimony of defendant regarding his activities and treatment. The trial court granted defendant diminution of his periodic imprisonment from a term of 30 months to 17 months. The court also allowed his release from the Winnebago County facility on January 27, 1989, conditioned on the requirement that he live with his mother in Byron for up to 60 days; thereafter, he was to live in Rockford, Illinois. He was ordered not to be present in his mother’s home if the children were present and was ordered not to be alone with any female under the age of 18. The remaining terms of the prior sentencing order of August 1987 were to remain in effect.

On October 25, 1990, the court began hearing testimony to determine the issue of visitation. Defendant had remarried and, in consultation with Dr. Glenn, now sought supervised visitation with the children along with family counseling. The trial court required a report with the recommendations of Sheri Dean, the children’s counselor at the Youth Services Bureau, and joint consultation with Dr. Glenn. In a brief order entered on February 13, 1991, the court adopted the findings of the Bureau and continued the matter for status until August 16, 1991 — the same month that defendant’s probation was to expire. Neither the report nor a transcript of the February 13 proceeding is included in the record.

On June 5, 1991, the State filed a petition to revoke defendant’s probation on the ground that, in violation of the January 1989 order, he had moved in March 1991 to a home on McCormick Road in Stillman Valley, Illinois, outside the Rockford city limits. At a June 24 hearing, the State presented the testimony of Ogle County probation officer Jim Magnafici, who monitored defendant. Magnafici was aware that defendant had moved to Rockford and remained there until defendant moved to Stillman Valley on or about March 9, 1991. Magnafici became aware of the move when defendant left a telephone message that he would be moving to Stillman Valley. The probation officer made unannounced visits to that location on April 26 and May 2 and verified the move. Magnafici also noted that there was a Girl Scout camp located in the area near defendant’s new residence; this apparently caused the State some concern.

After finding out that the court order required that defendant reside in Rockford and after consulting with the State’s Attorney, the probation officer had a letter sent to defendant on May 30 advising him that he was in violation. Magnafici acknowledged that until this time defendant was in compliance with the January 1989 order, and Magnafici did not act immediately on defendant’s telephone message, but stated that he was not immediately aware that the move was in violation of the order.

Defendant testified that he had complied with the order until February 1991. Having remarried, he made plans to move to Stillman Valley at the end of February because he liked to live in the country. He was aware that he could not reside in Byron. He signed the lease on February 27 and telephoned Magnafici’s office on March 5 asking him to contact him regarding his move. He claimed to have continued to send the required periodic reports to Magnafici and then met with him on May 2. According to defendant, Magnafici told him he had no objection to the move; but defendant learned that the State’s Attorney did have some objection. Magnafici told defendant to consult his attorney and to inform the court of the move.

Defendant made arrangements to cancel the lease. Since mid-May, just prior to the filing of the petition to revoke, when it became apparent to defendant that he should not have made the move, he began staying with a nephew in Rockford. Defendant then moved to a motel with his new wife. Defendant believed he was not in violation of the order because he thought the intent of it was that he not live in Byron. On cross-examination, defendant acknowledged that the order stated he was to live in Rockford. He also admitted that he left the Stillman Valley residence because the petition to revoke had been filed.

During closing argument, defense counsel conceded that there had been a technical violation, but argued that it was a violation “without deep meaning.” Defense counsel requested that the court consider continuing defendant’s probation and its conditions; the State agreed with this position.

The court made the following ruling:

“THE COURT: I think the petition to revoke has been determined to be founded [sic] in favor of the State. My problem is that I have been talking about this case since 1987. And if you look through this case, you’ll look through the fact that this defendant skirts around everything the Court wants to do as far as rehabilitation, as far as keeping him from those people, and it’s my opinion that now I’ve done everything I can do, and I’m going to find that he violated the terms of his probation, and I’m going to sentence him to seven years to the Department of Corrections. Period.
Mr. BURDS [Assistant State’s Attorney]: I’ll submit the order, Judge. I’m not sure, remand to custody of Sheriff, Judge?”

According to the the transcript there was no response heard as the judge left the courtroom.

Initially, we consider the effect of defendant’s failure to make an objection regarding any deficiency in the sentencing proceedings and to file a post-sentencing motion. Although the parties have failed to raise this issue, we consider it because of the potential effect on our jurisdiction or the application of the waiver rule.

In guilty plea cases, our recent decisions have held that a motion to withdraw the plea and to vacate the judgment under Rule 604(d) (134 Ill. 2d R. 604(d)) or a motion to reconsider the sentence is a jurisdictional prerequisite to an appeal unless defendant was misled or prevented from following the requirements by an insufficient admonition of his rights under Rule 605(b) (134 Ill. 2d R. 605(b)). (See People v. Ramage (1992), 229 Ill. App. 3d 1027 (motion to withdraw and vacate is jurisdictional); People v. Ishmon (1991), 213 Ill. App. 3d 653, 657 (motion to reconsider sentence in guilty plea case is jurisdictional; where jurisdiction is lacking, dismissal is the proper disposition); see also People v. Balsar (1989), 178 Ill. App. 3d 876, 879 (defendant who failed to follow Rule 604(d) should not be penalized for failing to follow proper procedure where trial court failed to admonish him under Rule 605(b).) We observe that, in the present case, the trial court failed to give any admonishment whatsoever to defendant.

Here, even though defendant originally pleaded guilty to the offense, the proceeding was concerned with conduct which occurred after the time for appeal had passed as to the original conviction. Inasmuch as defendant’s appeal challenges the order of revocation and the sentence resulting from the second proceeding and only indirectly involves his guilty plea, there was no need to file a motion to withdraw the plea and vacate the judgment under Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) or to file a motion to reconsider the sentence. (See People v. Bender (1992), 226 Ill. App. 3d 940, 942 (where a defendant pleads guilty, is sentenced to probation, and thereafter has his probation revoked, he does not need to file a motion to withdraw his original guilty plea before appealing his sentence); see also People v. Combs (1990), 197 Ill. App. 3d 758, 761 (the only issues which ordinarily can be raised are those concerning the propriety of the revocation of probation and the subsequent sentence of imprisonment; the guilty plea itself may not be collaterally attacked unless the plea was accepted as a result of a mistake of law on the part of the trial judge; therefore, a motion to withdraw the plea is unnecessary and superfluous); accord People v. Motta, (1991), 223 Ill. App. 3d 182, 183; amended Rule 604(d) now requires the filing of a post-sentencing motion to challenge the sentence following a guilty plea (Official Reports Advance Sheet No. 8 (April 15, 1992), R. 604(d), eff. August 1, 1992).) We agree with and adopt the reasoning of these cases. Thus, we hold that, in this case, defendant should not be bound by the procedural rules for guilty pleas to perfect his appeal.

Next, we consider whether defendant has waived the issues he raises for failure to object and to file a post-sentencing motion. Defendant has not seriously contested the finding that he was guilty of the probation violation and conceded this in the trial court. We will not disturb that finding. The main thrust of his arguments is that he was not sentenced according to proper procedures. We now determine whether we reach this issue after a consideration of the somewhat confusing decisions regarding the preservation of sentencing issues on appeal.

The general rule is that an objection to a sentence or to a sentencing procedure must be made in the trial court in the first instance and may not be presented for the first time on review. (People v. Killings (1986), 150 Ill. App. 3d 900, 909.) Recently we have stated that where a defendant fails to challenge the basis of his sentence in the trial court either at the sentencing hearing or by way of a motion to reconsider the sentence, the sentencing issues are waived on appeal unless they can be considered on the basis of plain error. (People v. Bolden (1991), 210 Ill. App. 3d 940, 947.) In People v. Lewis (1992), 235 Ill. App. 3d 1003, the defendant who was found guilty of a felony following a jury trial failed to file a motion to reduce her sentence pursuant to section 5 — 8—1 of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1). Agreeing with the decision of the Appellate Court, Fifth District, in People v. Macke (1992), 224 Ill. App. 3d 815, this court in Lewis concluded that the Code requires that a defendant file a motion to reduce the sentence in the trial court within 30 days after the sentence is imposed in order to appeal only the sentence.

The Lewis court noted that Macke had likened this type of motion to a required post-trial motion to preserve the issues on appeal (see Ill. Rev. Stat. 1989, ch. 38, par. 116 — 1(b)) or to a Rule 604(d) motion requiring a defendant who pleads guilty to move to withdraw the plea before appealing (see 134 Ill. 2d R. 604(d)). The Macke court noted the policy expressed in People v. Enoch (1988), 122 Ill. 2d 176, that a trial court should first be given an opportunity to correct any error that might have occurred so as to avoid needless appeals. (Enoch, 122 Ill. 2d at 186-88.) Enoch required both a trial objection and a written post-trial motion in both jury and nonjury trials in order to preserve errors for review. Enoch, 122 Ill. 2d at 186-88.

Agreement with the Macke decision is not unanimous. In People v. Turner (1992), 233 Ill. App. 3d 449, the Appellate Court, Fourth District, declined to follow Macke, holding that section 5 — 8—1 of the Code does not require a motion to reduce the sentence as a precondition to an appeal. The court further explained that, when the alleged error involves something which occurred at the sentencing hearing, it is only necessary that the matter “be somehow brought to the attention” of the trial court, by a contemporaneous objection “if possible.” When the alleged error is the length of the sentence, no objection is necessary, either at the hearing or by way of a motion to reduce the sentence.

In People v. Sims (3d Dist. 1992), 233 Ill. App. 3d 471, 473, the court concluded that a post-sentencing motion is not necessary to preserve error as to sentencing issues and cited Macke as contrary authority. The court also explained that, where it is alleged merely that a sentence is excessive and not that evidence was improperly considered at sentencing, a contemporaneous objection at the sentencing hearing is not required for appeal.

With respect to a capital sentencing hearing before a jury, our supreme court has analogized post-sentencing motions to post-trial motions which are required by statute (Ill. Rev. Stat. 1983, ch. 38, par. 116 — 1) in order to preserve sentencing errors for review unless the error can be raised by exception such as plain error. People v. Szabo (1986), 113 Ill. 2d 83, 93-94.) Just recently, in People v. Pasch (1992), 152 Ill. 2d 133, 216, the defendant argued that he was denied a fair capital sentencing hearing because the State introduced irrelevant testimony during the first phase of the hearing. In reviewing the issue, the court concluded that defendant had waived any alleged error by failing to object to such testimony and to raise this issue in a post-sentencing motion. (Pasch, 152 Ill. 2d at 216, citing People v. Enoch, 122 Ill. 2d 176.) The court further explained that the waiver rule applies not only during the trial, but also during the sentencing hearing (Pasch, 152 Ill. 2d at 216, citing People v. Moffitt (1985), 138 Ill. App. 3d 106, 113 (failure to object to judge’s remarks at sentencing resulted in waiver)).

Based on our review of the above cases, including our most recent decision in Lewis, it is clear to us that, as a minimum, some form of post-sentencing motion is required to preserve a sentencing issue for appeal. Until we receive further guidance from our supreme court on this point, we will no longer follow prior cases to the extent that they suggest the contrary, such as People v. Thomas (1990), 193 Ill. App. 3d 525, 527.

Notwithstanding the rule of waiver, however, we find that the sentencing proceeding in the case at bar is so flawed that we choose to address the merits of the case on the basis of plain error. See People v. Fort (1992), 229 Ill. App. 3d 336, 340; 134 Ill. 2d R. 615(a).

Defendant argues that it was error for the trial court not to have considered an updated presentence report because the original report was nearly four years old. Defendant also argues generally that he was not afforded an adequate sentencing hearing in aggravation and mitigation as prescribed by statute and he had no real opportunity to be heard. We agree for several reasons, and we conclude that the deficiencies in the proceeding amounted to plain error.

First, a current, written presentence report is required in a felony sentencing proceeding following the revocation of probation unless the parties have agreed upon the sentence in the probation-revocation proceeding. (People v. Harris (1985), 105 Ill. 2d 290, 299-301.) Although the trial court here may have had some familiarity with the case, there is no evidence of a valid waiver of a report under Harris, and it is clear that the available report was outdated. Waiver is allowed only under narrow circumstances explained in Harris which are inapplicable here. It was error for the court to proceed directly to sentencing.

Second, to sustain the trial court, the record must clearly show that the court considered the original offense and imposed the sentence that would have been appropriate for the original offense. (People v. Gaurige (1988), 168 Ill. App. 3d 855, 869; Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 6—4(e).) Resentencing after a revocation of probation is to be conducted according to the requirements of section 5— 4 — 1 of the Code (Ill. Rev. Stat. 1991, ch. 38, pars. 1005 — 6—4(h), 1005 — 4—1). Among other things, the record should show that the trial court (1) considered the evidence, if any, received during the original trial; (2) considered any presentence reports; (3) considered the financial impact of incarceration; (4) considered evidence and information offered by the parties in aggravation and mitigation; (5) heard arguments regarding sentence alternatives; and (6) afforded the defendant an opportunity to speak in his own behalf. (Gaurige, 168 Ill. App. 3d at 869; Ill. Rev. Stat. 1991, ch. 38, par. 1005-4-1.) While a trial court may consider the defendant’s conduct while on probation, the court may not commingle matters relating to the original offense with conduct that gave rise to the probation revocation. Gaurige, 168 Ill. App. 3d at 870.

The sentencing proceeding in the case before us was woefully inadequate and cannot be condoned. The trial court made no attempt to comply even minimally with these requirements to arrive at a considered and judicious determination of the sentence. Rather, the court found defendant in violation, relied solely on its own recollection of the case, focused on the probation violation rather than the original offense, and, without pausing, summarily sentenced defendant to the maximum term of imprisonment.

The record does not show that the court sufficiently considered the factors in aggravation and mitigation or considered sentencing alternatives, although the court noted vaguely that defendant “skirted” attempts at rehabilitation. Yet the record shows that, until this violation, defendant had generally complied with the terms of his probation. In fact, the court had shortened defendant’s term of periodic imprisonment.

If the court had specific reasons for imposing the maximum penalty, it should have stated them on the record. When a record does not provide a reviewing court with means sufficient to determine on what basis the court fixed a particular sentence, the reviewing court may find an abuse of discretion. (People v. Fort (1992), 229 Ill. App. 3d 336, 340; People v. Bergman(1984), 121 Ill. App. 3d 100, 109.) Defendant was given no meaningful opportunity to present his side of the case at the sentencing stage. After summarily sentencing defendant, the judge immediately left the courtroom. A hearing in mitigation and aggravation is an essential part of the sentencing process, and defendant was denied a meaningful hearing. Under such circumstances, the sentence must be vacated. (See People v. Gentry (1972), 5 Ill. App. 3d 1088; Gaurige, 168 Ill. App. 3d at 871.) We also strongly disapprove of the trial court’s failure to admonish defendant of his right to appeal. We also believe that defense counsel should have immediately challenged defendant’s sentence in the trial court as soon as possible after it was pronounced.

In determining that a new sentencing hearing take place, we make no determination concerning the correctness of the sentence.

We have determined that the proper sentencing procedure was not followed in this case. We affirm the judgment of revocation of probation, we vacate the sentence of seven years’ imprisonment and remand the cause for further sentencing proceedings to be held in conformity with the views expressed herein, before a different judge.

Affirmed in part; vacated in part and remanded with directions.

INGLIS, P.J., and BOWMAN, J., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVE WOODS, Defendant-Appellant.
    Second District
    No. 2—91—1219
    Opinion filed February 24,1993.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert 0. Ackley, of Waukegan, for appellant.
    David R. Akemann, State’s Attorney, of Geneva, and Craig D. Patton, of Springfield (William L. Browers, Lisa A. Hoffman, and John X. Breslin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

After a stipulated bench trial, defendant, Steve Woods, was convicted of unlawful possession of under 15 grams of a substance containing a controlled substance, cocaine (Ill. Rev. Stat. 1989, ch. 56Vz, par. 1402(b)), was sentenced to 30 months’ probation, and was ordered to pay a $100 fine and costs.

On appeal, defendant argues that the trial court should have granted his motion to suppress evidence that defendant alleges the police obtained illegally. We agree with defendant that the trial court erred in holding that there was probable cause to arrest defendant. We also hold that the detention and search of defendant were not in accord with Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. As the grant of the motion to suppress would leave the State without sufficient evidence to convict defendant, we reverse defendant’s conviction outright.

On the evening of November 16, 1990, police stopped defendant’s car at the intersection of Kimball and State Streets in Elgin on instructions from Detective Mark Brictson, who had just observed defendant enter, exit, and drive away from a house at 320 Park Street in Elgin. After ordering defendant out of the car, the officers searched his person, discovering a packet of cocaine inside the band of his cap. The police had no warrant to arrest or search defendant.

Defendant moved to suppress the cocaine and other evidence, arguing that the stop and search were unconstitutional. At the hearing on the motion, defendant testified that, at about 7:30 p.m. on November 16, 1990, he was driving a borrowed blue Mustang that was in perfect working condition. He had earlier been inside the house 320 Park Street. As he drove away, he was doing nothing unusual and committing no observable traffic offenses. At the intersection of Kim-ball and State, one police car pulled in front of him, blocking his path. Two more police cars pulled up behind him. A detective and three other officers emerged from the police cars. The officers in back of defendant approached him, ordered him out of the car, and told him to put his hands on the car. Defendant complied. The police did not request any identification and did not pat down defendant. Defendant had no hard objects on his person, and the police recovered none.

An officer defendant identified at the hearing as Detective Daniel Radmer searched defendant’s pockets and found nothing. Radmer then forcibly removed defendant’s baseball cap. Radmer reached inside the cap; tucked inside the band was a package containing cocaine. Defendant testified at the hearing that he never told the officers to check his pockets.

For the State, Detective Brictson, who was qualified as an expert in narcotics for the purpose of the hearing, stated that, on the evening of November 16, 1990, the Elgin police department was conducting a narcotics surveillance operation in the area of 320 Park Street. Detective Brictson related that the police had done similar surveillance on the evening of November 9, 1990. He stated that 320 Park Street was known as a “very active” drug house.

Brictson testified that 320 Park Street has four apartments, two downstairs and two upstairs. The front staircase leads only to the front upstairs apartment. At the time of the surveillance, Brictson knew that Aldine Bowman lived in the second-floor front apartment. He was familiar with Bowman from prior drug arrests and from Bowman’s association with two “infamous” Elgin drug houses within the previous five years. On the evening of November 16, 1990, Brictson observed activity at 320 Park Street from directly across the street. He used an infrared night scope to watch people enter and exit the building.

At the hearing, Brictson described three arrests that occurred shortly before the police stopped defendant. At 5:38 p.m., Holly Stejskal was arrested and found with cocaine on her person. About two minutes before her arrest, she entered the building, went up the staircase that led to Bowman’s apartment, and came out the front door, whereupon she was arrested. At 6:21 p.m., Mary Ann Jackson was arrested and found in possession of cocaine about two minutes after she had entered the house, gone to the back downstairs unit, and left about two minutes after entering. At 6:51 p.m., police arrested a man who had gone up the front staircase and exited about two minutes later; the police also found cocaine on him. Detective Brictson personally observed each of these people enter the house. He also observed other people in the house that night. He did not arrest anyone himself.

At 7:24 p.m., Brictson observed defendant exit the passenger side of a vehicle just up the street from the house. A woman was driving the car. Defendant went into the house, went up the front staircase, and emerged from the building about two minutes later. Defendant entered the car; the woman who had driven him there became the passenger. Defendant drove off. After observing defendant’s behavior, Brictson radioed the other officers, including Radmer, to follow defendant. He told the officers specifically to search defendant for drugs. This was consistent with his instructions to the officers that evening to conduct a search for drugs on anyone he told them to search, whether or not that person had any weapons.

Detective Brictson conceded that, from across the street, he could see only about halfway up the front staircase of 320 Park Street. Brictson did not observe defendant go into the upstairs apartment. He did not see defendant talk to anyone other than the woman in the car. Brictson did not observe defendant engage in any transaction.

Detective Daniel Radmer testified that, after receiving instructions from Brictson, he stopped defendant’s car at the intersection of State and Kimball. Radmer stopped the car based on information that defendant had apparently engaged in a drug transaction a few minutes earlier.

The court held that the police had probable cause to stop defendant. The court denied defendant’s motion to suppress.

Defendant moved to reconsider. In response, the State filed an affidavit by Officer Radmer stating that, at the time the police ordered defendant out of the car, defendant told them, “I don’t have any drugs, you can check my pockets.” The trial judge attached little significance to this allegation, but refused to change his earlier finding of probable cause. After the motion to reconsider was denied, defendant was found guilty at a stipulated bench trial at which he presented no evidence.

On appeal, defendant argues that his mere presence in the house on the evening of November 16, 1990, did not give the police probable cause to believe he was doing anything illegal. Defendant relies in part on Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, and on our recent decisions in People v. Harper (1992), 237 Ill. App. 3d 202, and People v. Spann (1992), 237 Ill. App. 3d 705, to argue that his mere presence at an apparent drug house did not give the police probable cause to arrest him. Defendant argues further that, even if the circumstances permitted a Terry stop of his car, the search of his person for evidence of crime went beyond the permissible scope of a search pursuant to a Terry stop. We agree with both contentions.

We hold first that the trial court erred in finding that there was probable cause to arrest defendant. Ordinarily, a trial court’s ruling on a motion to suppress will stand unless it is manifestly erroneous. (In re D.G. (1991), 144 Ill. 2d 404.) However, where neither the facts nor the credibility of the witnesses is disputed, the existence of probable cause is a legal issue that we may review de novo. (D.G., 144 Ill. 2d at 408-09.) Here, it appears that the only disputed factual issue at the trial level was what, if anything, defendant said to the officers after they stopped his car. The trial court attached no significance to whatever defendant might have told the officers; furthermore, that factual issue is not relevant to whether the police had probable cause to stop defendant in the first place. We therefore address this issue de novo.

We conclude that the police did not have probable cause for the stop or resultant search of defendant. The key to our holding is that, by their own admission, the police never saw defendant commit any act that appeared to be illegal. Rather, their suspicion was based on induction. Defendant fell under suspicion because, in the two hours before he entered the house, three other people entered the same house and, upon exiting, were found to possess cocaine. Two of these people apparently visited a person known to have had previous dealings in cocaine. There is no evidence whether any of these three people possessed cocaine before they entered 320 Park Street. Also, other people entered the house that evening. However, because defendant acted similarly to these three visitors, the police concluded that all four had engaged in drug transactions on the premises.

At least under the facts of this case, this type of inductive reasoning falls short of established standards for probable cause. It has been held repeatedly that neither the mere presence at a place where drugs are to be found nor the mere association with people known to be involved with drugs is sufficient to establish probable cause for illegal drug activity. (Sibron, 392 U.S. at 64, 20 L. Ed. 2d at 935, 88 S. Ct. at 1903; Ybarra v. Illinois (1979), 444 U.S. 85, 90-91, 62 L. Ed. 2d 238, 245, 100 S. Ct. 338, 341-42; Spann, 237 Ill. App. 3d at 709; Harper, 237 Ill. App. 3d at 206; People v. Simmons (1991), 210 Ill. App. 3d 692, 700.) Here, Detective Brictson admitted that he saw defendant do nothing illegal; the officer could not even say whether defendant actually entered the upstairs apartment. Although the police had some ground for a hunch that defendant was engaged in a drug purchase, they lacked the specific facts needed to establish probable cause. We conclude that the probable cause finding was legally erroneous.

The State argues that, even if the police lacked probable cause to arrest defendant, they had enough articulable facts to allow them to make a valid Terry stop of defendant. Assuming arguendo that the police had grounds to effectuate such a stop and that the detention here was a Terry stop rather than an arrest, the fruits of the search must still be suppressed. The search of the defendant went beyond the scope of a valid “frisk” incident to a Terry stop. The sole justification for this type of search is the protection of the officer and not the gathering of incriminating evidence. (Terry, 392 U.S. at 23-27, 20 L. Ed. 2d at 907-09, 88 S. Ct. at 1881-83; Sibron, 392 U.S. at 65, 20 L. Ed. 2d at 936, 88 S. Ct. at 1904; Harper, 237 Ill. App. 3d at 207.) Here the State’s own testimony established that none of the officers feared for their safety; they neither suspected nor tried to determine that defendant possessed a dangerous weapon. As the officers who testified at the hearing admitted, the police stopped and searched defendant solely to search him for evidence of a drug-related offense.

We hold that the trial court’s denial of defendant’s motion to suppress was legally erroneous. As the State could not prevail on remand without the evidence we have ordered suppressed, we reverse defendant’s conviction outright. See Harper, 237 Ill. App. 3d at 207.

The defendant’s conviction and sentence are reversed.

Reversed.

UNVERZAGT and WOODWARD, JJ., concur.