text:
    SHIRLEY L. HELBER, Petitioner-Appellant, v. GEORGE A. HELBER, Respondent-Appellee.
    Fifth District
    No. 5-87-0547
    Opinion filed March 8, 1989.
    Rehearing denied April 12, 1989.

      Burton C. Bernard and David L. Antognoli, both of Bernard & Davidson, of Granite City, for appellant.
    Robert J. Sprague, of Sprague & Sprague, of Belleville, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Appellant, Shirley L. Helber, appeals from a judgment of the circuit court of St. Clair County, entered February 5, 1987, dissolving her nearly 30-year marriage to appellee, George A. Helber, valuing and distributing marital and nonmarital property, denying her an award of maintenance and ordering each party to pay his or her own attorney fees and costs. Appellant raises four issues on appeal: (1) whether the trial court erred in its valuation of appellee’s pension rights; (2) whether the trial court erred in distribution of the marital estate; (3) whether the trial court erred in denying appellant an award of maintenance; (4) whether the trial court erred in not ordering ap-pellee to pay appellant’s attorney fees and costs incurred in the dissolution proceeding. We will discuss the facts only as they are necessary for our decision herein.

Appellant’s first argument on appeal is that the trial court erred in valuing appellee’s pension rights. Appellee testified that at the time of trial, he was 55 years of age. He had been employed as a credit union examiner for the State of Illinois for approximately 29 years. One of his employee benefits is a defined benefit pension plan. Appel-lee was planning to retire at the age of 60 years.

The trial court valued appellee’s pension rights using the immediate offset approach. Under this approach, the trial court, using actuarial evidence, determines the present value of the pension rights, and then determines what portion of that value represents marital property. To determine what portion of the pension rights represents marital property, the present value of the pension rights is multiplied by a fraction whose numerator is the number of years or months of marriage during which benefits were accumulated, and whose denominator is the total number of years or months during which benefits accumulated. (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519.) The trial court may then award the pension rights to the employee spouse and give the nonemployee spouse other marital property to offset her marital share in the pension rights. Hunt, 78 Ill. App. 3d at 663, 397 N.E.2d at 519.

At trial, each party presented his own expert witnesses who testified to their opinions as to the present value of appellee’s pension rights. Appellant’s expert, Jack Chor, has been in the business of administering retirement plans in Illinois and Missouri for 17 to 18 years. He has a bachelor’s and a master’s degree in mathematics and has been a member of the American Society of Pension Actuaries for 14 years. Appellee’s pension plan is a defined benefit plan, which provides a definite benefit at retirement age. The benefit to be paid ap-pellee under this plan at a retirement age of 60 years is $1,560, assuming appellee continues to work until age 60 and contributions to the plan continue. The present value of these benefits are actuarially calculated using both a mortality table and an interest rate assumption. The expert then calculates a figure representing the present value of a sum necessary to fund a pension with a monthly benefit of $1,560 beginning at age 60 years and continuing the life expectancy of the beneficiary.

Chor used three different interest rate assumptions: 5%, 6% and 7%. However, it was his opinion that 5% was the most realistic assumption, as it represents the historical achievable average used by most major companies in calculating the single sum necessary to fund these benefits. Using the higher figure of 7% would produce a lower present value. The various present values using these interest rates, assuming appellee worked until age 60 years and then retired with a monthly benefit of $1,560 for his life expectancy, were: at 7%, $122,462.30; at 6%, $139,780.7; at 5%, $160,410.50.

On cross-examination, Chor testified that, assuming appellee did not continue working until age 60, but retired the date of the dissolution and only drew a monthly benefit at age 60 of $1,120, the present value would be: at 7%, $87,939.69 and at 5%, $115,190.20.

Appellee’s expert, Jack Heller, is a certified public accountant. He took a different approach in his calculations. He calculated the total amount of money appellee could be expected to receive given his life expectancy and a monthly benefit of $1,120 beginning at age 60 years. The figure of $1,120 was based on the assumption that appellee ceased working as of the date of the dissolution. Heller then calculated the present value of that sum. Heller used an interest rate assumption of 8%. He determined this rate by looking at 12 pension plans with investment assumptions of between 5.5% and 9.5%. Many plans had investment assumptions of 7.5% to 8%, and Heller concluded that 8% is “a fairly good assumption rate today.” He calculated the present value of appellee’s pension rights as $80,982.

On rebuttal, appellant’s expert explained the difference between the methods used by the two experts. Heller’s method calculated the present value of the benefits to be received. Chor’s method calculated the present value of the cost of providing those benefits. In other words, Chor’s calculations result in a number representing the sum necessary today to provide a monthly benefit of $1,560 at age 60 years for appellee’s life expectancy assuming an interest rate of 5%, 6% or 7%. Heller’s calculations result in a number representing the total amount of benefits to be received brought back or discounted to present value assuming an interest rate of 8%.

In its judgment of dissolution, dated February 5, 1987, the trial court found the value of appellee’s pension rights to be $81,000, apparently adopting the calculations and value testified to by appellee’s expert. Utilizing the immediate offset approach, the trial court awarded appellee’s pension rights to appellee and awarded appellant other property to compensate her for her marital share in the pension rights.

Appellant now argues that the trial court erred in accepting ap-pellee’s expert’s valuation for two reasons. First, the expert assumed that appellee had stopped working at the date of the dissolution when, in fact, appellee had testified that he planned to continue working until the age of 60 years. Thus, the expert assumed a monthly benefit at retirement of $1,120 instead of $1,560, resulting in a lower present value. Secondly, the 8% interest rate assumption made by the expert was unrealistically high, again resulting in a lower present value.

We agree with appellant that the trial court erred in accepting the valuation of appellee’s expert because that expert relied on an erroneous assumption that appellee had ceased his employment at the time of the dissolution. The evidence clearly indicated that, not only was appellee still employed, but he planned to continue his employment until he reached the age of 60 years. Thus, the trial court’s adoption of the value placed on appellee’s pension rights by appellee’s expert is against the manifest weight of the evidence.

The value of appellee’s pension rights is the amount of benefits appellee will be expected to receive upon retirement. Although marital assets must be valued as of the date of the judgment of dissolution (In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 59, 507 N.E.2d 891, 894), in the case of pension rights, which may not be actualized until some years in the future, the value as of the date of dissolution is the present value at the time of dissolution of the benefits expected to be received upon retirement. (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519.) This is the amount the nonemployee spouse would have shared in if not for the dissolution. Further, where the reserved jurisdiction approach is used to value pension rights, this is the amount actually shared in by the nonemployee spouse, discounted, of course, to reflect the portion of the pension rights which was acquired during the marriage. Hunt, 78 Ill. App. 3d at 663, 397 N.E.2d at 519.

As in In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 475 N.E.2d 1333, the value of appellee’s pension rights was derived by an actuary.

“The actuary utilized the assumptions ordinarily and necessarily indulged in by actuaries. The value derived was necessarily the result of projections based upon certain assumptions such as respondent’s age, remaining work years, age at retirement, life expectancy, and so forth.” (131 Ill. App. 3d at 759, 475 N.E.2d at 1337.)

Where there are facts in evidence with respect to these assumptions, the expert’s opinion must be based upon those facts. (See Buford v. Chicago Housing Authority (1985), 131 Ill. App. 3d 235, 245, 476 N.E.2d 427, 435.) If there is no factual basis for an expert’s opinion and it is impeached by other evidence, the opinion is entitled to little weight. Anderson v. General Grinding Wheel Corp. (1979), 74 Ill. App. 3d 270, 281, 393 N.E.2d 9,17.

In the instant case, the evidence indicates that appellee plans to continue employment until age 60 years. His monthly benefit upon retirement will therefore be $1,560, not $1,120, as found by appellee’s expert. Appellee’s expert’s valuation of appellee’s pension rights was not based upon the evidence at trial. The trial court’s adoption of that value is against the manifest weight of the evidence. We must therefore remand this cause for further hearing and determination of the value of appellee’s pension rights.

We make no comment as to the propriety of the expert’s assumption of an 8% interest rate. We point out, however, that in cases of conflicting expert testimony, it is the duty of the trier of fact to assess the credibility of the witnesses and to assign the weight to be accorded their testimony. Anderson, 74 Ill. App. 3d at 281, 393 N.E.2d at 17.

A revaluation of appellee’s pension rights will in all likelihood necessitate redistribution of the marital estate and reconsideration of the questions of maintenance and attorney fees and costs, all of which are closely interrelated. We therefore decline comment on these remaining three issues raised by appellant, but order that the trial court on remand consider and determine these issues in accordance with the law and considering any new and additional evidence with which it is presented on remand.

For the foregoing reason the judgment of the circuit court of St. Clair County is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CHAPMAN and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS JAMES NIBBIO, Defendant-Appellant.
    Fifth District
    No. 5-87-0315
    Opinion filed March 8, 1989.
    Robert H. Rice, of Rice Law Offices, of Belleville, for appellant.
    Dick Allen, State’s Attorney, of Edwardsville (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 LEWIS

delivered the opinion of the court:

The defendant, Thomas Nibbio, was charged by a second amended information in two counts, each alleging the offense of criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 15(b)(1)). At the close of the evidence in a bench trial on February 23, 1987, the defendant moved as to each count for a directed verdict of not guilty on the ground that the information failed to state and charge an offense. The trial court did not rule on either motion for directed verdict but found the 29-year-old defendant guilty of both counts. After ruling that section 12 — 15(bXl) of the Criminal Code of 1961 is not referred to or covered by section 12 — 15(c) (Ill. Rev. Stat. 1985, ch. 38, par. 12— 15(c)) insofar as it deals with enhancement of the penalty for the offense of criminal sexual abuse, the trial court sentenced the defendant to serve 364 days as to each of the two counts, the sentences to run concurrently with one another as well as “with any other sentence given in Pinellas County, Florida, if any.” Defendant appeals, raising no issue with respect to the sufficiency of the evidence but challenging the sufficiency of each count of the pleadings to charge an offense. The trial court’s ruling concerning enhancement of the penalty pursuant to section 12 — 15(c) is not a subject of this appeal.

Both offenses involve the same 15-year-old male victim, who was attending a soccer clinic conducted by the defendant. The offenses occurred on July 28 or 29, 1986. The first count alleged that the defendant “knowingly committed an act of sexual conduct” with the victim in that the defendant “fondled the buttocks” of the victim; the second count alleged that the defendant “knowingly committed an act of sexual conduct” with the victim in that the defendant “touched his sex organ to the back” of the victim.

Section 12 — 15(bXl) provides in pertinent part:

“(b) 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).)

Section 12 — 12(e) (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(e)) defines “sexual conduct” as used in section 12 — 15(b)(1) as follows:

“Sec. 12 — 12. Definitions. For the purpose of Sections 12 — 13 through 12 — 18 of this Code, the terms used in these Sections shall have the following meanings ascribed to them:
(e) ‘Sexual conduct’ means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.”

The defendant contends concerning both counts of the second amended information that the legislature in its definition of “sexual conduct” has made a clear distinction between victims under 13 years of age and victims 13 years of age or over. By virtue of this distinction, he says, “sexual conduct” involving a victim of the age of 13 and over requires intentional touching or fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas “sexual conduct” involving a victim under the age of 13 years includes the touching or fondling of “any part of the body.”

Thus, he argues with regard to count I, fondling the buttocks of a person who is at least 13 years of age, as the second amended information alleges, is not conduct proscribed by section 12 — 15(b)(1). Count I of the second amended information states that the defendant who

“was seventeen (17) years of age or older, knowingly committed an act of sexual conduct with [a boy], who was at least thirteen (13) years of age but under sixteen (16) years of age when the act was committed, in that he fondled the buttocks of [the boy], for the purpose of sexual gratification or arousal of the defendant, and the defendant had been previously convicted of the offense of three counts of Unnatural and Lascivious Act, pursuant to the provisions of a similar statute in the State of Florida for an offense involving sexual abuse or sexual assault that is substantially equivalent to or more serious than the sexual abuse prohibited by Illinois Revised Statutes, Chapter 38, Section 12 — 15, in violation of Illinois Revised Statutes, Chapter 38, Section 12 — 15(bXl).”

Defendant asserts that “[b]y failing to list any of the three necessary body parts, Count I of the [second amended] information failed to charge a crime and the conviction for that count must be reversed.”

The State argues that, although section 12 — 12(e) does not expressly include “buttocks,” in view of the “sexual association” of buttocks, under “any commonsense reading of the statute” the fondling of the buttocks of a child 13 years of age or older is prohibited. Further, the State stresses the intent of the legislature to prohibit such conduct in light of the “previous child molestation statute,” which defined the offense of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(a)) and prohibited “[a]ny lewd fondling or touching” (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(aX3)). The purpose of the recodification of the sex offenses, the State says, was “to consolidate all of the sexual offenses into one act, not to decriminalize certain types of sexual conduct.” The parties have cited us to no case law addressing the precise question raised here, and our research has disclosed none.

It is fundamental that in interpreting a statute words are to be given their plain meaning whenever possible. (People v. Gann (1986), 141 Ill. App. 3d 34, 489 N.E.2d 924.) It is, likewise, fundamental that in construing a statute a court is to ascertain and to give effect to the legislative intent. (People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.) Although penal statutes are to be strictly construed in favor of the accused, they must not be so rigidly construed as to defeat the intent of the legislature. Haywood, 118 Ill. 2d 263, 515 N.E.2d 45.

The offenses of which defendant was convicted were created by Public Act 83 — 1067 (1983 Ill. Laws 7251). (People v. Burmeister (1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212.) In Haywood our supreme court stated the central purpose of the bill effecting these and other changes in the statutes addressing the sexual offenses:

“The Criminal Sexual Assault Act (Pub. Act 83 — 1067, amended by Pub. Act 83 — 1117), repealed eight of the statutes which had defined sex offenses in sections 11 — 1 through 11— 11.1 of the Criminal Code. The sponsors of the Act repeatedly stated that the central purpose of the bill was to recodify the sexual offenses into a comprehensive statute with uniform statutory elements that would criminalize all sexual assaults without distinguishing between the sex of the offender or the victim and the type of sexual act proscribed. (83d 111. Gen. Assem., House Proceedings, May 10, 1983, at 162-63.)” (Haywood, 118 Ill. 2d at 271, 515 N.E.2d at 49.)

We note that Senate amendment No. 4, adopted on June 23, 1983, amended House Bill 606 (83d Ill. Gen. Assem., House Bill 606, 1983 Sess.), which became effective on July 1, 1984 (Pub. Act 83 — 1067), and amended, inter alia, the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1 — 1 et seq.). Among other things, Senate amendment No. 4 amended section 12 — 12 of the Criminal Code of 1961 in the definition of “sexual conduct” by “inserting immediately after ‘breast of the victim or the accused.’ the following: ‘or any part of the body of a child under IS years of age.’ ” (Emphasis in original.) (Pub. Act 83 — 1067.) Senator Netsch, who offered Senate amendment No. 4, stated in doing so that the amendment

“was prepared largely in response to some particular points that were raised during our subcommittee hearings and subsequently by the office of the Peoria State’s Attorney’s Office. It buttons up one of the gaps with respect to the age crimes. It responds to a concern that they had having to do with the lewd fondling of children ***.” (83d Ill. Gen. Assem., Senate Proceedings, June 23,1983, at 7-8 (Part 1).)

In view of the plain meaning of the words of section 12 — 12(e) defining “sexual conduct” and the amendment accomplished by Senate amendment No. 4, we conclude that the legislature intended the distinction advanced by the defendant, that is, that “sexual conduct” involving a victim of the age of 13 and over requires intentional touching or fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas “sexual conduct” involving a victim under the age of 13 years includes the touching or fondling of “any part of the body,” in all cases for the purpose of sexual gratification or arousal of the victim or the accused.

In the present case the victim was over the age of 13. The information alleged in count I that the defendant had committed an act of sexual conduct in that he “fondled the buttocks” of the victim. Inasmuch as we do not believe “buttocks” may be deemed to be a part of either “the sex organs” or the “anus,” we agree with the defendant that count I of the information failed to charge the offense of criminal sexual abuse. A judgment of conviction entered upon an information that does not charge an offense is void for lack of jurisdiction of the subject matter and may be attacked at any time. (People v. Edge (1950), 406 Ill. 490, 94 N.E.2d 359.) Inasmuch as count I failed to charge the offense of criminal sexual abuse, the judgment of guilt and sentence entered as to count I of the second amended information is hereby reversed.

With respect to count II the defendant contends, likewise, that, because the victim was over the age of 13, “the defendant must have touched the victim’s sex organs, anus or breasts to violate the statute”; thus, touching the back of a victim who is at least 13 years of age, as the second amended information alleges, is not, he says, conduct proscribed by section 12 — 15(b)(1). Count II of the second amended information states that the defendant, who

“was seventeen (17) years of age or older, knowingly committed an act of sexual conduct with [a boy], who was at least thirteen (13) years of age but under sixteen (16) years of age when the act was committed, in that he touched his sex organ to the back of [the boy], for the purpose of sexual gratification arousal of the defendant, and the defendant had been previously convicted of the offense of three counts of Unnatural and Lascivious Act, pursuant to the provisions of a similar statute in the State of Florida for an offense involving sexual abuse or sexual assault that is substantially equivalent to or more serious than the sexual abuse prohibited by Illinois Revised Statutes, Chapter 38, Section 12 — 15.”

Section 12 — 12(e) refers expressly to the “touching” by either “the victim or the accused” of the sex organs, anus or breast of either “the victim or the accused.” Hence, the defendant’s argument that to have violated the statute he must have touched the sex organs, anus or breast of a victim who has attained the age of 13 or more is not well taken.

Defendant argues further with regard to count II that since the sex organ referred to in that count is that of the defendant, the victim must have touched the defendant’s sex organ knowingly to satisfy the requirements of the definition of “sexual conduct” as set forth in section 12 — 12(e); inasmuch as count II fails to allege that the victim knowingly touched the defendant’s sex organ, that count is, in his view, fatally defective.

To give a court jurisdiction in a criminal case, it is essential that the indictment or information charge the accused with a crime. (Edge, 406 Ill. 490, 94 N.E.2d 359.) A charge is sufficient to withstand a motion to dismiss or a motion in arrest of judgment if the indictment or information sufficiently states the necessary elements of the offense so that by the language used the defendant is apprised with reasonable certainty of the precise offense of which he is charged. (People v. Thompson (1984), 125 Ill. App. 3d 665, 466 N.E.2d 380.) Section 111— 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 3), which sets forth the requirements for the form of a charge, was drawn pursuant to due process principles; the purpose of the requirements of section 111 — 3 is to make certain that the accused is adequately informed of the nature and elements of the offense charged against him so that he may prepare his defense and protect himself from double jeopardy by subsequent prosecution for the same offense. (Thompson, 125 Ill. App. 3d 665, 466 N.E .2d 380.) An indictment or information charging an offense defined by statute should be as fully descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute. (People v. Barnes (1924), 314 Ill. 140, 145 N.E. 391.) The charging instrument must allege all facts necessary to constitute the crime charged. (People v. Vraniak (1955), 5 Ill. 2d 384, 125 N.E .2d 513, cert. denied (1955), 349 U.S. 963, 99 L. Ed. 1285, 75 S. Ct. 895.) Where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged. (Edge, 406 Ill. 490, 94 N.E.2d 359.) However, where the statute is silent as to intent, no intent need be averred in the charging instrument. Vraniak, 5 Ill. 2d 384, 125 N.E.2d 513.

In the present case the defendant was charged with the offense of criminal sexual abuse in violation of section 12 — 15(b)(1). In defining criminal sexual abuse, section 12 — 15(b)(1) does not include intent as an element of the crime. Section 12 — 12(e) merely defines “sexual conduct” as that term is used in section 12 — 15(b)(1); hence, it was not necessary, as the defendant maintains, for the State to have alleged the mental state of the victim in the information charging a violation of section 12 — 15(bXl). The information is as fully descriptive of the offense as is the language of section 12 — 15(b)(1) and alleges every substantial and material element of the offense as defined therein. More it need not do. The information alleged that the defendant “knowingly committed an act of sexual conduct” and set forth the necessary elements of the offense so that the defendant was unquestionably apprised with reasonable certainty of the precise offense of which he was charged and could prepare his defense. We conclude that count II of the second amended information was sufficient to charge the offense of criminal sexual abuse pursuant to section 12— 15(bXl) and that the trial court properly entered judgment and sentence as to that count of the information.

Affirmed in part; reversed in part.

RARICK and CHAPMAN, JJ., concur.


author: JUSTICE HOWERTON

text:
    THE PEOPLE ex rel. MARJORIE BROWNING, Plaintiff-Appellant, v. NORMAN MELTON, JR., Defendant-Appellee.
    Fifth District
    No. 5-87-0700
    Opinion filed March 9, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Special Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

The People of the State of Illinois sued defendant under section 10 — 10 of the Illinois Public Aid Code (Public Aid Code) to recover the public aid money that had been paid to Robert Melton, defendant’s minor son, for Robert’s support. Ill. Rev. Stat. 1987, ch. 23, par. 10— 10.

The circuit court refused to apply the guidelines contained in section 505 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) when the amount of the support was determined. (Ill. Rev. Stat. 1985, ch. 40, par. 505.) The circuit court found that the guidelines did not apply to proceedings brought under the Public Aid Code.

The People appeal that ruling.

We, therefore, are presented with the question of whether the guidelines for determining support contained in the Dissolution Act must be followed when a court determines support in cases brought under the Public Aid Code.

We hold they do.

The Public Aid Code provides that an action may be brought to recover aid granted during the period support was not provided and to obtain future support.

In determining the amount of support, the Public Aid Code provides, “[t]he court shall determine the amount of child support by using the guidelines and standards set forth in subsection (a) of Section 505 of the Illinois Marriage and Dissolution of Marriage Act.” Ill. Rev. Stat. 1987, ch. 23, par. 10 — 10.

Although there is no case on point, we have benefit of reasoning provided by the supreme court of Illinois in People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 529 N.E.2d 542. The supreme court decided Sheppard after the circuit court entered its order in this case.

Sheppard was brought under the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2501 et seq.).

The Parentage Act provided that the guidelines contained in the Dissolution Act “shall” apply to determinations of support in cases brought under the Parentage Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2514(a).) Sheppard held that use of the guidelines for determining support contained in the Dissolution Act was mandatory in cases brought for support under the Parentage Act. 124 Ill. 2d at 286, 529 N.E.2d at 552.

Sheppard was statutory construction.

The word “shall” usually indicates a mandatory obligation unless the statute indicates otherwise. People v. Gerke (1988), 123 Ill. 2d 85, 525 N.E.2d 68.

We believe that the same reasoning should apply to cases brought under the Public Aid Code.

The Parentage Act says the support guidelines contained in the Dissolution Act “shall” be used to determine support in cases brought under the Parentage Act. Ill. Rev. Stat. 1987, ch. 40, par. 2514(a).

The Public Aid Code says the support guidelines contained in the Dissolution Act “shall” be used to determine support cases brought under the Public Aid Code. Ill. Rev. Stat. 1987, ch. 23, par. 10-10.

The wording is identical, the statutes parallel.

Furthermore, both have a common purpose. Both announce a firm policy that parents are to support their children. Both provide a method to enforce that policy. Since there is a common purpose, there is no reason to stray from the supreme court’s rationale in Sheppard.

The guidelines for determining support contained in the Dissolution Act apply to cases for support brought under the Public Aid Code.

Although these guidelines apply, a court need not follow these guidelines in all cases. In appropriate cases, the trial court may enter an order for support in an amount less than that prescribed in the Dissolution Act. However, in that instance, the court must enter express findings upon which the deviation rests. 111. Rev. Stat. 1985, ch. 40, par. 505.

In this case, the circuit court found that even if the guidelines applied, the defendant’s financial circumstances required the entry of an order for support in an amount less than the guidelines, because “the circumstances of the defendant are broader in scope than just the needs of Robert Melton in that demands are placed upon defendant from other jurisdictions for other children and for debts other than the standard debts of his personal household, and the child support guidelines shall not control in determining the amount of support.”

We do not believe that these are the types of express findings contemplated by the Dissolution Act.

This case, therefore, is reversed and remanded for rehearing.

Reversed and remanded with directions.

HARRISON and GOLDENHERSH, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    MARY LEE ROZYCKI, Plaintiff-Appellant, v. VIRGINIA GITCHOFF, Defendant-Appellee.
    Fifth District
    No. 5—87—0567
    Opinion filed March 9, 1989.
    Don E. Weber, of Collinsville, for appellant.

      David L. Antognoli, of Bernard & Davidson, of Granite City, for appel-lee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Mary Lee Rozycki, appeals from the judgment of the circuit court of Madison County dismissing her complaint to recover assets from an allegedly fraudulent conveyance between defendant, Virginia Gitchoff, and plaintiff’s deceased ex-husband, Walter Rozycki (Walter). The trial court entered summary judgment for defendant, and for the reasons stated herein, we affirm.

In a three-count complaint, plaintiff alleged that Walter, in his personal capacity and as president of Walter Rozycki Realty Company, Inc. (company), transferred his and the company’s interest in judgments in his favor and against James Green and Green Construction Company to defendant. The complaint further alleged that Walter and the company were insolvent at the time of, or were made insolvent by, the transfer, that plaintiff was a creditor of both Walter and the company, that an intimate personal relationship existed between Walter and defendant, and that the transaction was a preferential transfer to one creditor, defendant, to avoid paying another creditor, plaintiff. Fraud, inadequate or no consideration, and ineffective transfer of the company’s interest were also alleged.

In 1975, plaintiff began divorce proceedings against Walter and obtained an injunction enjoining transfer of jointly owned property. The parties’ marriage was dissolved in September 1981 by a final order which designated assets and liabilities of the company and the corporation stock as marital property. This order distributed those assets, liabilities and stock as well as judgments in favor of Walter or the company equally between Walter and plaintiff and noted that the court could not adjudicate claims of creditors such as defendant. From June 1978, to May 1980, defendant loaned Walter a total of $39,759.56 and received six promissory notes, all of which were in default by May 1980. On May 14, 1980, defendant took a mortgage from Walter on various parcels of real estate as consideration for her forbearing to file suit on the notes. By the spring of 1981, the notes were still in default, and defendant had discovered that her 1980 mortgage was junior to a 1978 mortgage from Walter to plaintiff. While preparing to commence foreclosure proceedings, defendant took an assignment from Walter and his company of all interest in judgments in their favor and against James Green and Green Construction Company as partial payment, and no foreclosure was instituted. The date of assignment was May 20,1981.

On November 1, 1981, Walter died. Defendant and Walter’s brother were named co-executors of Walter’s estate, but in time the public administrator was appointed. Plaintiff was a creditor of Walter’s estate.

Walter’s administrator filed a petition against defendant alleging Walter’s transfer of his interest in the Green judgments was a preferential transfer. That action was settled by defendant’s payment of $9,000 to the estate. In October 1984, the probate court approved the settlement, but within 30 days, plaintiff moved to vacate the order. Her motion was denied, and plaintiff took no further action. Subsequently, plaintiff was appointed successor administrator and closed the estate. A few days after the estate was closed, plaintiff filed the instant action.

Defendant raised the October 1984 probate order approving settlement of the estate’s claim as a bar to plaintiff’s claim. The trial court characterized the instant suit as “a collateral attack upon the administration of the Estate and upon the now Final Order entered in the Estate settling these claims” and granted defendant’s motion for summary judgment. Plaintiff appealed to this court.

The dispositive issue in this appeal is whether plaintiff’s failure to pursue her claim in the probate case bars plaintiff’s cause. Plaintiff suggests it does not, arguing that her claim is independent of the estate’s claim against defendant and, further, that plaintiff is not bound by the probate order. Defendant urges the probate order as res judi-cata, arguing that a probate court order is a final judgment for purposes of res judicata, that the subject matter of the probate action and this action were the same, and that a court-approved settlement operates as res judicata the same as a trial on the merits.

The estate of Walter Rozycki, plaintiff’s ex-husband, was administered pursuant to the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 1101/2, par. 1 — 1 et seq.). One purpose of that Act is to insure that “controversies and the rights of the parties may be speedily and finally determined.” (Ill. Rev. Stat. 1987, ch. 1101/2, par. 1 — 9.) Consistent with this purpose, the Act requires that any claim that might be filed within the contemplation of the Act, whether based on contract, tort, or otherwise (see Ill. Rev. Stat. 1987, ch. 1101/2, par. 18 — 1), must be filed within the limitations period which the Act provides (see Ill. Rev. Stat. 1987, ch. 1101/2, par. 18 — 12). If such a claim is not filed, it will be barred (Bricker v. Borah (1984), 127 Ill. App. 3d 722, 725, 469 N.E.2d 241, 243) and cannot be pursued in a separate proceeding after the estate is closed (see Abrams v. Schlar (1960), 27 Ill. App. 2d 237, 240-41,169 N.E.2d 583).

In this case, plaintiff’s complaint makes clear that she seeks recovery for fraudulent conveyance based on her status as a creditor of her deceased ex-husband. Both the administrator’s action and this case were attempts to set aside and recover the proceeds of a conveyance alleged to be in fraud of other creditors of decedent. Concerning the administrator’s action, however, plaintiff argues that the administrator stands in the place of and derives his rights from the decedent who, as a participant in a fraudulent transaction, was bound by the terms of that transaction. While there is authority for plaintiff’s position (Hoyt v. Northup (1912), 256 Ill. 604, 606, 100 N.E. 164, 165; White v. Russell (1875), 79 Ill. 155, 158), a creditor of the estate is not similarly bound and may pursue a fraud action separate and apart from the administrator. Because she was a creditor, she was an “interested person” entitled to file-her own petition for discovery and recovery of assets against defendant while administration of the estate was still underway. (Ill. Rev. Stat. 1987, ch. 1101/2, par. 16 — 1; Keshner v. Keshner (1941), 376 Ill. 354, 361-62, 33 N.E.2d 877; In re Estate of Arnold (1986), 142 Ill. App. 3d 258, 264, 491 N.E.2d 458, 463.) In Sifford v. Crawford (1910), 244 Ill. 234, 91 N.E. 428, a conveyance in fraud of creditors was binding on the parties to the fraud, including derivatively the administrator of decedent’s estate, but the estate’s creditors were not similarly precluded from attacking the transaction.

When, however, that creditor fails to exercise her rights in the original action, she can be barred from proceeding in a subsequent independent action. In Merrill v. Merrill (1914), 187 Ill. App. 589, decedent’s administrator brought a citation to recover assets, in which action the county court ruled for defendant. The administrator appealed to the circuit court but later dismissed the appeal. The court held the county court’s final judgment was a bar to the administrator’s subsequent suit in equity to recover the same assets. Similarly, the court in In re Estate of Trapani (1959), 21 Ill. App. 2d 19, 157 N.E.2d 83, held that a party who voluntarily submitted herself to the jurisdiction of the probate court in a prior action was estopped from later questioning that jurisdiction. Plaintiff in this action was voluntarily under the jurisdiction of the probate court and that court had the power to litigate and resolve the issues presented in this action. Ill. Rev. Stat. 1983, ch. IIOV2, par. 16 — 1.

Although plaintiff apparently moved to set aside the circuit court’s order approving the settlement between the executor and defendant, she did nothing more to pursue her claim during the course of the probate proceedings once her motion had been denied. Under the authorities cited above, plaintiff cannot pursue her claim further now that the estate has been closed. Her cause of action for fraudulent conveyance is barred and was properly dismissed.

The circuit court was therefore correct in granting summary judgment in favor of defendant, as the moving party was entitled to judgment as a matter of law. 111. Rev. Stat. 1983, ch. 110, par. 2 — 1005.

Since the dispositive issue in this appeal has been resolved under the provisions of the Probate Act, this court need not reach defendant’s argument of res judicata. The judgment of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


text:
    JOYCELYNN DEMING, Indiv. and as Mother and Next Friend of Michael Eugene Peterman, a Minor, Plaintiff-Appellant, v. DALE MONTGOMERY, Adm’r of the Estate of Randy Montgomery, Deceased, Defendant-Appellee.
    Fifth District
    No. 5—87—0623
    Opinion filed March 10, 1989.
    Rehearing denied April 18, 1989.

      John Womick, of John Paul Womick & Associates, Chartered, of Carbon-dale, for appellant.
    Edward J. Szewczyk, of Donovan, Rose, Nester & Szewczyk, P.C., of Belleville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This case was brought by Joycelynn Deming on her own behalf and on behalf of plaintiff Michael Peterman, a minor, for personal injuries sustained by plaintiff as a result of a fishing accident involving defendant Randy Montgomery, also a minor. Subsequent to the filing of plaintiff’s complaint, defendant died in an unrelated accident, and his father, Dale Montgomery, who was appointed the legal representative of defendant’s estate, was substituted as the defendant in this case. This cause of action for negligence was tried before a jury, and a verdict for the defendant and against the plaintiff was entered. Plaintiff filed a post-trial motion, which the circuit court denied. From this judgment and the denial of his post-trial motion, plaintiff appeals.

Before considering the issues raised on appeal, a brief recitation of the facts is necessary. At trial, plaintiff presented the testimony of defendant’s parents, Dale and Laverne Montgomery, as adverse witnesses pursuant to section 2 — 1102 of the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 1102). Dale Montgomery testified that he was an avid fisherman and that he had taught defendant how to fish at the age of four and a half. He told defendant about the proper safety measures to be used when fishing. He showed defendant that when he was done fishing, he should loosen his line, bring the fish hook back and place it in the last guide or eye on the fishing rod, and then tighten the fishing line.

Montgomery stated that, on October 5, 1983, when defendant was 13 years of age, defendant and two other boys went fishing after school. Montgomery and his wife encountered the three boys on their return from their fishing trip, and, at that time, the boys told them that the fish hook from defendant’s fishing rod had become loose and had entered plaintiff’s eye. According to Montgomery, his son had stated that immediately before the accident occurred he had attempted to warn plaintiff, who was walking in front of defendant, about the fish hook. When Montgomery saw the boys, plaintiff did not appear to be seriously hurt.

Laverne Montgomery’s testimony corroborated her husband’s testimony. Additionally, she stated that defendant had told her that they were walking single file along the creek and that defendant had said that plaintiff had walked into the fish hook.

Plaintiff testified that on October 5, 1983, he, defendant and Donnie Thompson were friends. Plaintiff stated that he had been taught to fish by his father. He was aware that a fish hook could cause someone harm and he knew how to place a fish hook on the fishing rod to secure it and to hold the fishing rod at waist level.

Plaintiff stated that he first noted a problem with his right eye early in the morning of October 6, 1983. He did not experience any pain when the accident occurred, but he was awakened the next morning by pain and lack of vision in his right eye. Prior to October 6, 1983, plaintiff had had no problem with his right eye.

As a result of the surgeries performed upon his right eye, plaintiff’s vision had declined. Additionally, his eyes are sensitive to the sunlight. When he reads, certain words seem written backwards or the letters appear rearranged. Plaintiff testified that he had not played baseball since his injury, but that he had signed up to play this coming summer. He currently participated in running track.

Defendant read the evidence deposition of Donald Jerry Thompson to the jury. Thompson testified that on October 5, 1983, when he was 12 years of age, he, plaintiff and defendant had gone fishing along a creek. Each of them had a fishing rod and reel, and when they were done fishing for the day, each of them had placed his fish hooks in one of the guides of his fishing rod and reeled up the slack in the fishing line. When they were walking home, plaintiff was walking in front of defendant and it was then that the accident occurred. According to Thompson, no horseplay occurred and defendant did not do anything unusual at the time of the accident. Thompson thought that defendant’s fish hook came “ajar” from the fishing rod, that the fish hook swung and then “came back and hit” plaintiff in the eye. Thompson did not recall giving plaintiff any warning about the fish hook as the accident occurred very fast. He did not remember how defendant’s fishing rod was angled at the time of the accident.

Thompson did not recall talking to defendant’s parents after the accident; however, he did remember that the three of them returned to defendant’s home. Thompson stated that plaintiff appeared to be unhurt and that the three boys played catch with a football after the accident.

In rebuttal, plaintiff testified that he, defendant and Donnie Thompson were fishing on October 5, 1983. At the time of his accident, plaintiff first saw defendant’s fishing rod and fish hook on his right side. The fish hook came toward him from the right side and entered his eye. Defendant had possession of the fishing rod to which the fish hook was attached. The area where the accident occurred was a wooded area with trees and bushes around.

Joycelynn Deming, plaintiff’s mother, testified that on October 5, 1983, when plaintiff was 13 years old, plaintiff came home that evening and told her that he had had a fish hook enter his eye that day. She examined plaintiff’s right eye and saw that the eye was slightly reddened as though irritated. She did not realize at the time that there was any serious difficulty with plaintiff’s eye.

The next morning, at 5 a.m., plaintiff awakened her and complained that his vision was affected. Deming immediately took plaintiff to the Carbondale Memorial Hospital emergency room. Plaintiff was admitted to the hospital and was treated by Dr. Ahmad.

Additional testimony was presented at trial by Deming and through the evidence depositions of Dr. Maqbool Ahmad and Dr. Fla-vius Pernoud. As this additional evidence relates to the subsequent treatment of plaintiff’s eye injury and thus only to the issue of damages, it is unnecessary to delineate that testimony, as no issue on damages has been raised on appeal.

On appeal, plaintiff raises three issues: First, that the circuit court erred in refusing to allow him to amend his pleadings to conform to the proof and to instruct the jury on the theory of res ipsa loquitur; second, that the circuit court erred when it instructed the jury on contributory negligence; and third, that the circuit court’s conduct severely prejudiced the plaintiff and denied him a fair trial. Because we agree with plaintiff’s contention on the issue of res ipsa loquitur and reverse and remand this case on that issue, it is unnecessary to address plaintiff’s remaining issues as the proof and the conduct at the new trial will differ and those issues may not arise at retrial.

We now consider plaintiff’s issue on res ipsa loquitur. Initially, it must be determined whether the doctrine of res ipsa loquitur is applicable to this case. The doctrine of res ipsa loquitur raises an inference of negligence from otherwise inexplicable facts and circumstances through proof of circumstantial evidence. (Imig v. Beck (1986), 115 Ill. 2d 18, 503 N.E.2d 324.) To raise this inference of negligence, the plaintiff must prove that the instrumentality causing the personal injury, at the time of injury, was under the management or control of the defendant and that the accident occurred “under such circumstances that in the ordinary course of events it would not have occurred if the party so charged had used proper care while the agency or instrumentality was under his management or control.” Imig, 115 Ill. 2d at 26, 503 N.E.2d at 328; Clay v. Brodsky (1986), 148 Ill. App. 3d 63, 499 N.E.2d 68; Kruger v. Newkirk (1976), 40 Ill. App. 3d 581, 352 N.E.2d 436.

We find that the proof of this case met the requisite elements for the theory of res ipsa loquitur. It was shown that defendant had exclusive control over the fishing rod to which the fish hook was attached at the time of the accident. Further, the facts of this case gave rise to the inference that plaintiff would not have had his eye punctured by the fish hook if defendant had used proper care in the handling of the fishing rod and would not have occurred in the absence of negligence. Plaintiff was walking in front of defendant when the accident occurred. Defendant had hooked his fish hook onto his rod for safety in accordance to the method he had been taught by his father and was carrying his fishing rod down by his waist. Some negligence had to have occurred to cause defendant’s fish hook to become unfastened from his rod and to strike plaintiff in the eye.

In order to rely on the doctrine of res ipsa loquitur, a plaintiff must allege general negligence in his pleadings and a plaintiff who alleges only specific negligence cannot rely on this doctrine as it is the plaintiff’s burden to apprise the defendant that he intends to rely on that theory. (Kruger, 40 Ill. App. 3d 581, 352 N.E.2d 436; Erckman v. Northern Illinois Gas Co. (1965), 61 Ill. App. 2d 137, 210 N.E.2d 42.) In the instant case, plaintiff’s original pleadings alleged specific negligence; however, he attempted to amend his pleadings at the close of all the evidence to allege general negligence to conform to the proof at trial by including the theory of res ipsa loquitur, but the circuit court denied plaintiff’s motion to amend his pleadings.

Under section 2 — 616(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 616(c)), a pleading may be amended at any time before a judgment to conform the pleadings to the proof. Section 2 — 616 is to be liberally construed so that cases are decided on their merits and not on procedural technicalities. (Campbell v. Feuquay (1986), 140 Ill. App. 3d 584, 488 N.E.2d 1111.) The decision to permit the amendment of the pleadings is within the sound discretion of the circuit court, and the test in determining whether a court has abused its discretion is to ask if the circuit court’s decision furthers the ends of justice. (Campbell, 140 Ill. App. 3d 584, 488 N.E.2d 1111; Pickett v. First American Savings & Loan Association (1980), 90 Ill. App. 3d 245, 412 N.E.2d 1113; Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.) Also to be considered in determining whether a court abused its discretion in denying a party permission to amend his pleadings is whether the motion to amend the pleadings prejudiced or surprised the other party. (Shiner v. Friedman (1987), 161 Ill. App. 3d 73, 513 N.E.2d 862; Pickett, 90 Ill. App. 3d 245, 412 N.E.2d 1113.) Any doubt as to whether pleadings should be amended should be resolved in favor of the amendment. (Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464.) We have already determined in this case that res ipsa loquitur was applicable under the facts presented at trial and, thus, there was support in the evidence for plaintiff’s amendment. Additionally, we do not perceive that the defendant was prejudiced or surprised by the motion to amend, and defendant does not argue that he was surprised or prejudiced in his brief. Therefore, we conclude that the circuit court abused its discretion when it denied plaintiff’s motion to amend his pleadings to conform to the proof adduced at trial.

Further, by refusing to allow plaintiff to amend his pleadings to include those counts regarding res ipsa loquitur, the circuit court also abused its discretion when it refused to instruct the jury on the theory of res ipsa loquitur. In order to give a jury instruction, all that is required is that there be some evidence in the record to support the theory set out in the instruction. (Nicholl v. Scaletta (1982), 104 Ill. App. 3d 642, 432 N.E.2d 1267; Hagopian v. First Venture, Ltd. (1980), 90 Ill. App. 3d 951, 414 N.E.2d 85; Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266; Figarelli v. Ihde (1976), 39 Ill. App. 3d 1023, 351 N.E.2d 624.) The theory of res ipsa loquitur was applicable to this case, and plaintiff had the right to have the jury instructed on this theory. (See Koclanes v. Hertenstein (1971), 130 Ill. App. 2d 916, 266 N.E.2d 119.) Therefore, because the circuit court abused its discretion in refusing to permit plaintiff to amend his pleadings to conform to the proof adduced at trial and because the circuit court abused its discretion in refusing to instruct the jury on the theory of res ipsa loquitur, we reverse and remand this cause for a new trial.

Plaintiff has asked that this court grant it judgment notwithstanding the verdict on the issue of res ipsa loquitur and remand for a trial on damages only. Although we reverse this cause on the issue of res ipsa loquitur, we do not decide whether defendant has been found liable for negligence, but return this issue to the jury for consideration under the theory of res ipsa loquitur along with the other facts and circumstances of this case. Under res ipsa loquitur an inference of negligence is drawn; however, this inference may be strong or weak depending on the surrounding facts and circumstances of a case. Res ipsa loquitur, like other evidence, may be rebutted or explained by the other party, and the inference raised under res ipsa loquitur does not disappear when contrary evidence appears, but remains to be considered and to be weighed by a jury against the other evidence offered by the defendant. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 207 N.E.2d 305.) We accordingly remand this cause for a new trial and not for damages only.

For the foregoing reasons, we determine that the circuit court of Williamson County abused its discretion in refusing to permit plaintiff to amend his pleadings to conform to the proof adduced at trial and in refusing to instruct the jury on the doctrine of res ipsa loquitur, and we reverse and remand this cause for retrial in accordance with this opinion.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS E. WOOLSEY, Defendant-Appellant.
    Fifth District
    No. 5—88—0405
    Opinion filed March 10, 1989.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    H. Wesley Wilkins, State’s Attorney, of Jonesboro (Stephen E. Norris, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant appeals from an order entered in the circuit court of Union County granting the State’s motion for entry of a nolle prosequi based on insufficient evidence. The State moves to dismiss the appeal on the grounds that the order is interlocutory in nature and not subject to review under Supreme Court Rule 604 (107 Ill. 2d R. 604). Defendant objects and contends that the order is final and appealable. People v. A.L. (1988), 169 Ill. App. 3d 581, 523 N.E.2d 970.

On December 14, 1987, defendant was charged by criminal information with one count of murder and two counts of armed violence. On June 21, 1988, he filed a motion to dismiss the charges predicated on the State’s alleged violation of his speedy trial rights. The case was called for hearing on June 30, 1988, at which time the State filed a motion to dismiss and for entry of a nolle prosequi due to insufficient evidence. The motion was allowed pursuant to a written order entered on that day and the cause was dismissed. Defendant filed a notice of appeal on July 8, 1988, seeking reinstatement of the case so that his motion for a speedy trial may be heard.

The State in its motion to dismiss contends that the dismissal of criminal charges through the device of a nolle prosequi does not constitute a final order or judgment for purposes of review, because the charges may be reinstated at a future date. Given the interlocutory nature of the order, the State argues that review, if any, is dependent upon the provisions of Supreme Court Rule 604. (People v. Mourning (1976), 37 Ill. App. 3d 945, 347 N.E.2d 48.) Because the rule contains no express language authorizing review of the grant of a nolle prosequi, the State argues that this court is without jurisdiction to entertain defendant’s appeal.

Defendant in his objection distinguishes Mourning by noting that it involved an appeal by the State from an order granting the involuntary dismissal of criminal charges. He asserts that the case merely stands for the proposition that the State may not take an appeal from an interlocutory order unless expressly authorized to do so under Supreme Court Rule 604(a). He relies on People v. A.L., 169 Ill. App. 3d 581, 523 N.E.2d 970, in taking issue with the State’s characterization of his appeal as being interlocutory in nature.

The First District of the Appellate Court held in A.L. that the procedure whereby a juvenile petition was stricken on leave to reinstate prior to the disposition of a speedy trial claim constituted a final judgment for purposes of review. 169 Ill. App. 3d at 584, 523 N.E.2d at 972.

Defendant advances two reasons why an appeal should be allowed at this juncture: (1) he will not be kept on tenterhooks as to the possibility of future prosecution; and (2) the State will not waste its time and resources on a subsequent prosecution if his speedy trial term has already run.

In A.L., the State filed a delinquency petition against a juvenile for the offenses of misdemeanor battery and criminal damage to property. During the course of the prosecution, respondent filed a motion for discharge alleging a violation of his right to a speedy trial. The State countered by filing a motion to strike the petition with leave to reinstate under a procedure referred to as “Stricken On Leave” (hereinafter referred to as SOL). Both matters came on for hearing with defendant’s motion being denied and the State’s granted. Defendant then filed a motion to reinstate the petition and, once reinstated, to dismiss it on speedy trial grounds. The motion was denied and respondent filed a notice of appeal. The State moved to dismiss the appeal, contending that the order of dismissal was interlocutory in nature and not expressly reviewable under any provision of Supreme Court Rule 604. The motion was ordered taken with the case to be briefed by the parties. The reviewing court viewed the SOL procedure as a means of indefinitely prolonging the prosecution with no anticipated term of probation and treated it as a final judgment for purposes of appeal. (169 Ill. App. 3d at 584, 523 N.E.2d at 972.) In resolving this jurisdictional issue, the court found Klopfer v. North Carolina (1967), 386 U.S. 215, 18 L. Ed. 2d 1, 87 S. Ct. 988, to be controlling.

In Klopfer, the Supreme Court addressed the issue of whether the State may indefinitely postpone a criminal prosecution after indictment, without justification and over the objection of the accused, by resorting to the device of nolle prosequi with leave to refile. The Supreme Court deemed such a practice to be in violation of the sixth amendment right of the accused to a speedy trial, made applicable to the States by way of the fourteenth amendment. The Supreme Court recognized that while the grant of a nolle prosequi affords the accused the freedom to go where he wishes without being subject to recognizance bond, the State’s ability to reinstate the criminal charges against him at some future date exposes him to scorn and ridicule, thereby affecting his freedoms of speech and association and his participation in unpopular causes. Moreover, the Supreme Court noted that such a cloud of suspicion may cause the accused to suffer adverse employment consequences. 386 U.S at 222, 18 L. Ed. 2d at 7, 87 S. Ct. at 993.

While Klopfer is controlling with respect to the substantive issue reached by the court in A.L., we believe that that court’s reliance on Klopfer is misplaced with respect to the jurisdictional issue. Reduced to its common denominator, the issue confronting this court is whether an order granting a nolle prosequi is final and appealable. If so, then a direct appeal may be brought under Supreme Court Rule 606, which provides for appeals by right from final judgments in criminal cases; if not, then an appeal must be sanctioned under Supreme Court Rule 604, which provides for appeals by right from certain prescribed interlocutory orders in criminal cases.

In People v. Watson (1946), 394 Ill. 177, 179, 68 N.E.2d 265, 266, the supreme court defined the nature of a nolle prosequi as follows:

“ ‘A nolle prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.’ [Citations.] Again, it has been said that the ordinary effect of a nolle pro-sequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense.”

It cannot be said that a nolle prosequi is a final judgment for purposes of Supreme Court Rule 606 as it does not bar a subsequent prosecution for the same offense. Therefore, this court’s jurisdiction, if any, must be based upon Supreme Court Rule 604. However, no express provision exists under this rule authorizing the review of the grant of a nolle prosequi.

The court in A.L. was motivated by a concern that no other forum was available to the respondent to press his speedy trial claim other than a direct appeal of the SOL procedure employed by the State. To deny an immediate appeal, the court feared, would be to indefinitely prolong the possibility of prosecution with no anticipated termination and no opportunity for the respondent to expeditiously press his speedy trial claim. (A.L., 169 Ill. App. 3d at 584.) These concerns, though valid, do not take into account other procedural devices that are available to defendant in the case sub judice. He could press his speedy trial claim in an expeditious fashion, for example, by pursuing an original action in mandamus in an attempt to compel the trial court to consider his motion for discharge based upon an alleged violation of his speedy trial rights. In the event that a subsequent prosecution is initiated against him, he remains free to renew his claim for a speedy trial at that time. See People v. Rodgers (1982), 106 Ill. App. 3d 741, 435 N.E.2d 963; People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.

For the reasons set forth above, we decline to follow the analysis in A.L. and hold that the grant of a nolle prosequi which dismisses criminal charges with leave to reinstate is neither final nor appealable. Accordingly, defendant’s notice of appeal from such an order fails to vest this court with jurisdiction. The State’s motion to dismiss the appeal based on lack of jurisdiction is hereby granted.

Appeal dismissed.

WELCH, P.J., and GOLDENHERSH, J., concur.