text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT McGRATH, Defendant-Appellant.
    Second District
    No. 2—87—0823
    Opinion filed May 5, 1989.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Following a bench trial defendant, Robert McGrath, was found guilty of two offenses of delivery of less than 10 grams of cocaine and one offense of possession with intent to deliver more than 30 grams of a substance containing cocaine. Defendant was sentenced to three years’ imprisonment in the Department of Corrections on each of the delivery offenses, six years’ imprisonment for the possession offense, all to run concurrently, and he was also fined $12,000 and ordered to pay restitution in the amount of $800 to the Northeast Metropolitan Enforcement Group. On appeal, defendant contends that the trial court erred (1) in permitting the State to reinstate charges which had been dismissed pursuant to plea negotiations after defendant withdrew his earlier plea of guilty to lesser charges, when defendant had not been advised under Supreme Court Rule 605(b)(4) (107 Ill. 2d R. 605(b)(4)) that such reinstatement was possible if he withdrew his guilty plea; (2) in ordering defendant to pay restitution to the Northeast Metropolitan Enforcement Group (NEMEG); and (3) in finding defendant guilty beyond a reasonable doubt of possession of over 30 grams of cocaine with intent to deliver.

Defendant initially had entered into a plea agreement with the State under which he agreed to cooperate in the prosecution of the cases against his codefendants, and the State agreed to amend the Class X possession charge to a Class 1 offense and to nol-pros a Class X conspiracy charge. The agreement further provided that, upon his plea of guilty to the reduced offenses, the trial court would determine the sentences to be imposed. On September 18, 1986, defendant pleaded guilty to the two counts charging delivery of less than 10 grams of cocaine, Class 2 offenses, and to the amended count charging possession of cocaine with intent to deliver as a Class 1 offense, and the Class X conspiracy charge was dismissed. The trial court sentenced defendant to four years’ imprisonment for the Class 1 possession offense and three years’ imprisonment for each of the Class 2 delivery offenses, the terms to be served concurrently. The court also assessed a fine of $1,000 against defendant.

Defendant’s motion to reconsider the sentences was denied by the trial court, and he then filed a timely motion to withdraw his pleas of guilty pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)). After a hearing, the trial court found that in admonishing defendant prior to accepting his pleas of guilty, as is required by Supreme Court Rule 402 (107 Ill. 2d R. 402), the court had neglected to advise him that by pleading guilty he waived the right to trial by jury (see 107 Ill. 2d R. 402(a)(4)), and defendant was allowed to withdraw the guilty pleas. On motion by the State’s Attorney, all charges which had been dismissed or amended pursuant to the plea agreement were then reinstated. Defendant subsequently moved to dismiss the reinstated charges on the ground he had not been admonished prior to withdrawing the guilty pleas that on doing so the State could reinstate and set for trial charges which had been reduced or dismissed under a plea agreement. (107 Ill. 2d R. 605(b)(4).) Defendant’s motion was denied.

After a bench trial heard on stipulated evidence, the trial court found defendant guilty of the two Class 2 charges of delivery of less than 10 grams of cocaine and guilty of the reinstated Class X charge of possession with intent to deliver more than 30 grams of cocaine. Defendant was found not guilty of the reinstated conspiracy charge. The fines and sentences noted earlier were imposed, and defendant appeals.

We consider first whether the failure to advise defendant that, upon withdrawing his pleas of guilty, the charges which had been dismissed under his plea agreement with the State may be reinstated requires reversal of the present convictions and sentences.

Defendant contends that absent such advice, which is required under Supreme Court Rule 605(b)(4), he could not make a knowing and intelligent evaluation of the risks involved in withdrawing his guilty pleas. Defendant argues that the State should not have been allowed to reinstate the original charges, which were reduced or dismissed under the plea agreement, because the court did not advise defendant that could occur. The remedy urged by defendant is the reversal of his conviction and sentence for the Class X felony of possession with intent to deliver more than 30 grams of cocaine, and remand for re-sentencing for the convictions of the Class 2 felonies of delivery of less than 10 grams of cocaine. Alternatively, defendant suggests that the sentences be vacated and the cause remanded for resentencing pursuant to the plea agreement.

The State contends, without reference to relevant case authority, that although defendant was not advised that if he withdrew his negotiated guilty pleas the former charges could be reinstated, the law remains that such dismissed charges may be reinstated and set for trial. The State urges that defendant’s convictions and sentences be affirmed.

Supreme Court Rule 605(b) states:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:

(1) that he has a right to appeal;

(2) that prior to taking an appeal he must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty, setting forth his grounds for the motion;

(3) that if the motion is allowed, the plea of guilty, sentence and judgment will be vacated and a trial date will be set on the charges to which the plea of guilty was made;

(4) that upon the request of the State any charges that may have been dismissed as a part of a plea agreement will be reinstated and will also be set for trial;

(5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions; and

(6) that in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw his plea of guilty shall be deemed waived.” (Emphasis added.) 107 Ill. 2d R. 605(b).

The State and defendant do not dispute the fact that when he entered the guilty pleas under the plea agreement the trial court neglected to admonish him as to his right to a jury trial, as is required under Supreme Court Rule 402(a)(4). Nor was defendant advised at the time of sentencing under his plea of guilty, as is required by Supreme Court Rule 605(b)(4), that, should he withdraw the plea, the original charges against him could be reinstated, if requested by the State. The parties also appear to agree that the failure to admonish defendant of his right to trial by jury required that he be allowed to withdraw his guilty plea, if defendant wished to do so. (See People v. Culbertson (1987), 162 Ill. App. 3d 319, 321-22, 515 N.E.2d 465.) The State and defendant do not agree, however, as to what consequences, if any, must follow from the failure to advise defendant of the possible reinstatement of the original charges should he withdraw the negotiated plea of guilty. Neither the parties nor our research has disclosed a case in which the issue at hand was directly addressed.

The consequence to defendant in this case of withdrawing the negotiated plea of guilty, and being tried and convicted under the original charges, was one conviction of a more serious offense and more severe penalties than were imposed under the plea agreement. While it seems to us unusual that the trial court would overlook the Rule 605(b)(4) advice to defendant directed to be given by our supreme court, it is also unusual that neither the assistant State’s Attorney nor defendant’s counsel saw fit to call that oversight to the attention of the court when defendant was sentenced. On this record, defendant chose to withdraw his plea of guilty, as he was allowed to do because of the other oversight in admonishing him noted earlier, and go to trial apparently believing that it would be only on the reduced charges under the aborted plea agreement rather than on the original charges.

In People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the court noted, in another context, that “Rules 402, 604(d) and 605(b), which concern guilty pleas, are meant to mesh together not only to ensure that defendant’s constitutional rights are protected, but also to avoid abuses by defendants. *** [The rules] have been constructed to conform this State’s criminal justice system to Federal constitutional standards and to avoid some of the excesses that both the State and defense counsel occasionally employ while they attempt to zealously represent their opposing interests. *** These rules are not written in a vacuum and they represent our best efforts at ordering the complex and delicate process of plea bargains and guilty pleas.” 124 Ill. 2d at 103-04.

In People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886, the State nol-prossed a felony charge as part of a plea agreement and defendant entered a guilty plea to a misdemeanor. After sentencing, defendant appealed, and the guilty plea was vacated for failure of the trial court to comply with the requirements of Rule 402 (50 Ill. 2d R. 402) in accepting the guilty plea. The dismissed felony was reinstated after remand, and defendant was convicted of that offense on retrial. Our supreme court discussed the process of plea bargaining and agreements, noting that Rules 604 and 605 (58 Ill. 2d Rules 604, 605) allow a defendant to move to withdraw a guilty plea, but that “the defendant must be warned that dismissed charges may be reinstated by the State if the motion to withdraw a plea is allowed.” (McCutcheon, 68 Ill. 2d at 107.) In People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167, defendant initially entered a plea of guilty to the offenses of murder, attempted murder, armed robbery, and armed violence under a plea agreement that the prosecutor would recommend a 60-year prison term. The trial court accepted the plea but did not, at that time, enter the sentence, and the admonitions of Supreme Court Rule 605(b) were never given to defendant (84 Ill. 2d at 516.) Shortly thereafter defendant moved to withdraw his guilty plea on the ground he did not understand the process and was not fully advised of the term he would have to serve. The court granted defendant’s motion, and, subsequently, he entered an unnegotiated plea of guilty to the indictment before another judge and was sentenced to death. Although the court discussed Walker in terms of prosecutorial vindictiveness, a matter not present here, it concluded that an increased penalty where defendant has successfully pursued a right afforded by law could not stand where he had not been given notice that could occur. 84 Ill. 2d at 522-23; see also People v. Johnson (1981), 102 Ill. App. 3d 1056, 1061, 430 N.E.2d 207; People v. Dorsey (1984), 129 Ill. App. 3d 52, 55-56, 471 N.E.2d 1053.

Supreme Court Rule 605(b)(4), the requirements of which were not observed by the trial court after sentencing defendant, is designed to advise a defendant who has pleaded guilty of his right to appeal under Rule 604(d) and of the prerequisite step that he first seek to withdraw the guilty plea on the ground of error presented to the trial court. A corollary to the court granting defendant leave to withdraw his guilty plea is the advice required under Rule 605(b)(4) that if defendant’s motion is allowed, the State may cause to be reinstated any charges dismissed under a plea agreement with defendant, and they will be set for trial. If the requirement that a defendant must be advised of this possible consequence of withdrawing a negotiated plea of guilty may be overlooked or ignored, it could become a trap for an unwary defendant, and that may have occurred in the present case. If he has not been so informed, a defendant cannot make a considered judgment whether he should seek to set aside the convictions and sentences already imposed under a plea agreement, at risk of convictions and greater sentences for more serious offenses which were dismissed under the plea agreement. This factor is a component of every plea agreement if, for whatever reason, a defendant is permitted to reject the agreement he made and withdraw his guilty plea. There is no basis apparent to us upon which this segment of the rules governing guilty pleas may properly be withheld from defendant’s knowledge.

We conclude that the convictions from which this appeal is taken must be reversed and the penalties imposed vacated. So too must be vacated the order granting defendant’s motion to withdraw his guilty pleas under the plea agreement and the order which then reinstated the original charges. The case then stands procedurally at the point at which the trial court should have advised defendant under Supreme Court Rule 605(b)(4). The trial court will, on remand, advise defendant pursuant to the rule and defendant will then be in a position to understandingly seek, or not, the withdrawal of his pleas of guilty under the plea agreement.

As this case may be retried on the original charges in the event defendant chooses to withdraw his pleas of guilty under the plea agreement, we have also considered whether the evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt under the standards set forth in People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366. We find that, if believed by the trier of fact, the evidence was sufficient to sustain the convictions from which this appeal was taken.

We also consider the $800 defendant was ordered to pay as restitution to NEMEG and find it to be erroneous. The NEMEG, which expends public funds on criminal investigations, is not a “victim” within the meaning of the statute authorizing the payment of restitution by defendants to victims in criminal cases. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—6; People v. Evans (1984), 122 Ill. App. 3d 733, 740, 461 N.E.2d 634; People v. Winchell (1986), 140 Ill. App. 3d 244, 247, 488 N.E.2d 620.

Accordingly, the judgments of conviction will be reversed and sentences vacated; the order permitting withdrawal of defendant’s pleas of guilty under the plea agreement will be vacated, together with the order reinstating the dismissed or reduced original charges against defendant; the cause is remanded for further proceedings in accordance with this opinion.

Reversed, vacated in part, and remanded.

INGLIS and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRETT BLANCHETTE, Defendant (Michael A. Unger, Appellant).
    Second District
    No. 2—88—0427
    Opinion filed May 11, 1989.
    Rehearing denied June 5,1989.

      John M. Kalnins, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Basil G. Greanias, of Decatur (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

After the parties submitted their briefs in this appeal, the State filed a motion in this court which sought to strike the appendix to the reply brief and that portion of the reply brief which referred to and relied upon the appendix on the ground that the appendix was not included in the appellate record. In response, defendant moved to have appellee’s motion denied and urged that we not strike that section of the brief but, among other things, contends that the letter he wishes this court to consider is not a part of the record but merely to inform the court of the circumstances of the filing of the notice of appeal. We ordered that the appellee’s motion to strike and appellant’s motion in response to it be taken with the case.

We grant appellee’s motion, taken with the case, to strike the appendix from the reply brief on the basis that attachments to briefs on appeal, not otherwise before the reviewing court, cannot be used to supplement the record. (Regal Package Liquor, Inc. v. J.R.D., Inc. (1984), 125 Ill. App. 3d 689, 691.) We also strike any arguments from the appellant’s reply brief that are premised on the appendix. We deny appellant’s motion in opposition to appellee’s motion to strike that was taken with the case.

Next, we look to the notice of appeal. The timely filing of a notice of appeal is necessary to this court’s jurisdiction in a criminal case. (107 Ill. 2d R. 606; People v. Delgado (1984), 126 Ill. App. 3d 239, 243.) Supreme Court Rule 606(b) provides in part:

“[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” (107 Ill. 2d R. 606(b).)

The record on appeal clearly shows that the notice of appeal was filed May 2, 1988. The judgment order in this cause was entered on March 30, 1988. The 30 days for filing the notice of appeal expired on April 29,1988, which was a Friday and not a legal holiday.

The appellant did not file a motion for extension of time to file the notice of appeal in this court either within the 30 days of the expiration of the time for filing the notice of appeal or within six months of the expiration of the time of the filing of the notice of appeal, as provided by Supreme Court Rule 606(c). 107 Ill. 2d R. 606(c).

Filing the notice of appeal is jurisdictional, and this court has no discretion to extend its jurisdiction. (107 Ill. 2d R. 606(a); People v. Scruggs (1987), 161 Ill. App. 3d 468, 470; see also People v. Gonzales (1989), 179 Ill. App. 3d 546, 548.) Failure to file a timely notice of appeal cannot be waived by the parties. (In re McCall (1982), 108 Ill. App. 3d 164, 167.) It is the duty of the appellate court to consider its jurisdiction to hear an appeal whether or not the issue is raised by the parties. Scruggs, 161 Ill. App. 3d at 470.

In criminal appeals, however, there are two exceptions. If a motion, supported by showing a reasonable excuse for failing to timely file a notice of appeal, is filed in the reviewing court no later than 30 days after the expiration of the original 30-day period for filing a notice of appeal, the reviewing court may grant leave to appeal. (107 Ill. 2d R. 606(c); People v. Williams (1980), 82 Ill. App. 3d 681, 682.) Or, if a motion, supported by an affidavit showing that the appeal is meritorious and that the failure to file was not due to appellant’s culpable negligence, is filed in the reviewing court not later than six months after the expiration of the original 30-day period for filing the notice of appeal, the reviewing court may grant leave to appeal. (107 Ill. 2d R. 606(c); Williams, 82 Ill. App. 3d at 682.) Appellant has not attempted to use such procedure, and accordingly, his appeal should be dismissed. See Gonzales, 179 Ill. App. 3d at 550.

We do note that contained in appellant’s statement of facts is a comment that, “On April 28, 1988, Appellant mailed a notice of appeal to the clerk, and it was stamped as received on May 2, 1988.” A statement of fact unsupported by the record cannot confer jurisdiction on this court.

Appellant’s motion for leave to cite intervening authority was granted, and this court considered Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 340, wherein the supreme court confirmed that notices of appeal.mailed within the 30-day period and received thereafter are timely filed. While we recognize this rule, we find no proof of mailing was filed in the instant case. Proof of mailing could have been made by filing with the clerk a certificate of the attorney, or affidavit of a person other than the attorney, who deposited the notice of appeal in the mail, properly addressed, stating the date and place of mailing and the fact that proper postage was prepaid, or a United States Postal Service certificate of mailing. As we ruled earlier, merely attaching a copy of a letter to the clerk to a reply brief cannot stand as a supplement to the record. (See Regal Package Liquor, 125 Ill. App. 3d at 691.) The appellant has the burden of including those matters in the record necessary for the issues to be reviewed. Scruggs, 161 Ill. App. 3d at 470.

The notice of appeal was then required to be filed “within 30 days after the entry of the final judgment.” (107 Ill. 2d R. 606(b).) Defendant’s notice of appeal was not timely. We do not have jurisdiction to consider this appeal and, therefore, dismiss it. See Gonzales, 179 Ill. App. 3d at 550.

Dismissed.

NASH and REINHARD, JJ., concur.


author: JUSTICE HEIPLE

text:
    IRENE COTTON, Plaintiff-Appellant, v. FIRST STATE BANK OF MENDOTA, Defendant-Appellee.
    Third District
    No. 3—88—0656
    Opinion filed April 20, 1989.
    Louis E. Olivero & Associates, of Peru, for appellant.
    Michael S. Guilfoyle, of Mendota, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This is an action brought by the beneficiary of a payable-on-death account against the bank that issued the account to recover damages occasioned by the conduct of the bank in handling the account. The action arises out of the fact that prior to the death of the account owner, the bank removed the name of the payable-on-death beneficiary from the account.

The plaintiff, Irene Cotton, alleges that a payable-on-death account was established by her aunt, Margaret Happ, naming the plaintiff as beneficiary in the amount of $45,000. Mrs. Cotton claims that the defendant, First State Bank of Mendota (bank), through its agents or employees made certain representations to Mrs. Happ which caused her to change the account to the name of Margaret Happ, individually. The trial court granted the bank’s motion for summary judgment, finding that the bank owed no duty to Mrs. Cotton as a payable-on-death beneficiary or otherwise and that no genuine issue as to any material fact existed. The plaintiff appeals the trial court’s decision. We affirm.

Mrs. Cotton, age 80, stated in her deposition that she and her husband had taken care of her 92-year-old aunt for several years. Mrs. Cotton admitted that on December 12, 1984, she and her aunt visited the bank and that Mrs. Cotton told the bank to add her name as a payable-on-death beneficiary to her aunt’s account. After this was done, the bank became concerned about the change in the account and called Mrs. Happ into the bank on December 17, 1984, to discuss the alteration with her. The bank’s concern was that the changing of the certificate of deposit was not Mrs. Happ’s idea, but that Mrs. Cotton was exerting undue influence over Mrs. Happ. Wayne Whitmore, the bank’s attorney, testified in his deposition that he asked Mrs. Happ in a private meeting on December 17, 1984, whether she wanted anybody else’s name put on her account and whether it was her intention to change ownership of the account to Irene Cotton payable on death. Mrs. Happ allegedly responded:

“I do not want it that way. I want my name on it. That’s my money ***. That time certificate belongs to me, I want it in my name alone ***. Irene’s name is not to be on it in any way ***. If I want to take care of Irene, I’ll take care of her later.”

Thereafter, the portion of the certificate which stated “Irene Cotton Pay on Death” was whited out by a bank employee and Mrs. Happ signed her name over the whited out portion. Mr. Whitmore then allegedly told Mrs. Cotton that Mrs. Happ wanted the certificate in her name alone. Mrs. Happ died on April 7, 1986, approximately IV2 years from the date of the changing of the payable-on-death account.

The plaintiff first argues that genuine issues of material facts existed in this case, thus barring summary judgment. The plaintiff contends that a genuine issue of fact was presented as to whether a valid payable-on-death account had been created for the benefit of Irene Cotton by Mrs. Happ. Since we accept the plaintiff’s contention that a valid payable-on-death account was established, we need not address this issue here. The plaintiff further maintains, however, that a material fact existed as to whether improper or unwarranted statements and representations made by agents or employees of the bank to Mrs. Happ caused her to change the account to sole ownership. Such a claim is not supported by the record.

No evidence was produced by the plaintiff to show that the bank unduly influenced Mrs. Happ to change her account. To the contrary, the evidence supports the bank’s position that they were merely looking after Mrs. Happ’s best interests. Consequently, this court finds that no genuine issue as to any material fact exists and that the trial court correctly granted summary judgment as a matter of law. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005; Codo, Bonds, Zumstein & Konzelman, P.C. v. Federal Deposit Insurance Corp. (1986), 148 Ill. App. 3d 698.

Finally, the plaintiff contends that the bank owed her a duty not to interfere with her rights as a third-party beneficiary of the payable-on-death account. Correspondingly, the plaintiff claims that she should have been included in the conversation between Wayne Whitmore and Margaret Happ on December 17, 1984. As previously noted, the plaintiff failed to present any evidence to support her position that the bank improperly interfered with the payable-on-death account by exerting undue pressure on Mrs. Happ. Furthermore, the plaintiff misinterprets the rights of a third-party beneficiary of a payable-on-death account. As was stated by the appellate court in In re Estate of Gubala (1967), 81 Ill. App. 2d 378, 382-83:

“The beneficiary of a ‘RO.D [payable on death] account’ cannot withdraw any of the money prior to the owner's death and has no legal redress to protect himself against a wasteful dissipation of the funds by the owner. In effect, his interest comes into being only at the owner’s death. The owner of a ‘P.O.D. [payable on death] account’ therefore does not during his lifetime, part with exclusive dominion and control over the funds therein.”

Thus, unquestionably, Mrs. Happ had the right to terminate the payable-on-death account during her lifetime if she so desired. Moreover, neither Mrs. Happ nor the bank owed Mrs. Cotton a duty to consult with her before changing the account. To hold that a third-party beneficiary must be informed of changes in a payable-on-death account would mean that the owner could not change the account without contacting the beneficiary. This runs counter to the well-established rule of law that the owner of a payable-on-death account has exclusive dominion and control over the funds of the account during her lifetime. Additionally, this court notes that the legislature, subsequent to the occurrences in this case, clarified the notice issue by stating that the holder of a payable-on-death account may change the designated beneficiaries without the consent or knowledge of such persons. Ill. Rev. Stat. 1987, ch. 17, par. 2134(a).

Accordingly, we affirm the judgment of the circuit court of La Salle County.

Affirmed.

WOMBACHER, P.J., and SCOTT, J., concur.


author: JUSTICE WOMBACHER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD NED ACEBO, Defendant-Appellee.
    Third District
    No. 3—88—0544
    Opinion filed April 20, 1989.

      John R. Clerkin, State’s Attorney, of Macomb (Nancy Rink Carter, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE WOMBACHER

delivered the opinion of the court:

The defendant, Richard Ned Acebo, was charged with driving under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 95½, par. 11— 501(a)(2).) The defendant filed a motion to suppress his confession on the grounds that he was not advised of his Miranda rights prior to questioning. The trial court granted the defendant’s motion. The State appeals. We reverse.

The defendant has not submitted an appellee’s brief. We may nonetheless decide the merits of this appeal, for where the record is simple and the court of review can easily decide the disputed errors without an appellee’s brief, it may do so. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

At the hearing on the defendant’s motion to suppress, Deputy G.W. Carle of the McDonough County sheriff’s office testified as follows. On April 2, 1988, shortly after 11 p.m., Deputy Carle reported to the scene of an auto accident, where he found a pickup truck on the side of the road. A bystander told him that the occupants of the truck might have gone to a nearby cafe to use the telephone. Deputy Carle proceeded to the cafe but found that it was closed. The owner of an adjacent tavern told him that there were two people behind the cafe.

Deputy Carle then went behind the cafe, where he saw someone crouched behind a garbage can. The deputy drew his firearm to protect himself, because it was dark and because the cafe had been burglarized several times before. After ordering the individual to come out from behind the garbage can, Deputy Carle saw another person come from between a storage shed and the cafe and begin walking away from him. Deputy Carle told the person to stop. Only after a second request did the individual obey. Carle ordered both individuals to place their hands on the building. He then began frisking them. At that point, the deputy asked each suspect for his name and asked which of them was the driver of the truck involved in the accident. The defendant admitted that he was the driver. Deputy Carle detected the odor of alcohol on the defendant’s breath and asked the defendant to submit to a field sobriety test. The defendant’s poor performance of the test resulted in his arrest for driving under the influence of alcohol. The defendant was transported to the sheriff’s office and was at that time given the Miranda warnings.

The defendant filed a motion to suppress his confession, alleging that once Deputy Carle ordered him to place his hands on the wall and frisked him, it was improper to question him without first giving him the requisite Miranda warnings. The trial court found that for fourth amendment purposes the defendant was seized when the deputy frisked him. Accordingly, the court ruled that the defendant was subjected to a custodial interrogation without being properly advised of his constitutional rights. The court therefore concluded that the defendant’s statements were involuntary and should be suppressed.

The State argues on appeal that Deputy Carle’s detention and initial questioning of the defendant at the cafe were investigatory and therefore Miranda warnings were not required.

An officer may stop a person for a limited investigation if he has specific articulable facts and inferences that would lead to a reasonable suspicion of criminal activity. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) Miranda warnings are not required when the police conduct general on-the-scene questioning as to facts surrounding a crime. (People v. Parks (1971), 48 Ill. 2d 232, 269 N.E.2d 484.) Moreover, when a police officer is confronted with suspicious circumstances which might be resolved with a satisfactory explanation from the person questioned, he is permitted to make inquiries of an investigative nature without first giving the Miranda warnings. (People v. Tolefree (1972), 9 Ill. App. 3d 475, 292 N.E.2d 452.) The standard of review of a trial judge’s decision regarding the suppression of evidence is whether the finding of the trial judge was manifestly erroneous. People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.

In the instant case, the trial court had previously denied the defendant’s petition to rescind his statutory summary suspension. In so doing, it found in part that Deputy Carle had a reasonable, articulable suspicion which formed the basis for conducting an investigatory stop and detaining the defendant. We agree with the trial court’s finding in that regard. We do not, however, agree that the questioning by Deputy Carle required that the defendant first be given Miranda warnings.

Deputy Carle was investigating an auto accident. In the course of that investigation, he went to a cafe where the occupants of one of the vehicles involved in the accident were said to have gone. When he went behind the cafe, he saw one man hiding behind a garbage can and another man between a shed and the cafe. After ordering both individuals to come out from behind the cafe, he frisked them. Even though Deputy Carle had his gun drawn at the time, we find that he was justified in taking this precaution given the suspicious actions of the individuals and given that the cafe had been burglarized before. These procedures by Deputy Carle were justified under the circumstances of the original investigatory stop of the defendant. (See People v. Paskins (1987), 154 Ill. App. 3d 417, 506 N.E.2d 1037.) Deputy Carle then asked each person to identify himself and asked which one was the driver of the truck involved in the accident. These questions did not require that the defendant be given Miranda warnings, because they were merely preliminary questions regarding the accident. Accordingly, we find that the trial court’s granting of the defendant’s motion to suppress his confession was manifestly erroneous because the initial questioning by Deputy Carle was investigatory and therefore did not require Miranda warnings.

The judgment of the circuit court of McDonough County granting the defendant’s motion to suppress his confession is reversed.

Reversed.

HEIPLE and STOUDER, JJ., concur.


author: JUSTICE SCOTT

text:
    CITY OF PEORIA MUNICIPAL EMPLOYEES ASSOCIATION et al., Plaintiffs-Appellants, v. THE CITY OF PEORIA, Defendant-Appellee.
    Third District
    No. 3—88—0522
    Opinion filed April 20, 1989.
    Leiter, Brady & Associates, of Peoria (Thomas E. Leiter and John T. Brady, of counsel), for appellants.
    Robert M. Riffle, of Keck, Mahin & Cate, of Peoria (David L. Thomas, Corporation Counsel, and Roy G. Davis, of counsel), for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This class action suit for declaratory judgment comes on appeal from the trial court’s decision and order entered June 16, 1988, granting defendant’s motion for directed verdict and from the trial court’s order dated July 28, 1988, denying plaintiffs’ post-trial motion. No questions are raised on the pleadings.

The facts of this case are essentially undisputed, but interpretations of their meaning are hotly contested. Plaintiffs’ cause of action stemmed from defendant’s decision, beginning in 1984, to change its payroll period for salaried employees from biweekly or 26 pay periods to semimonthly or 24 pay periods. In this light, plaintiffs’ last paychecks in 1983 were received on December 16, 1983, for the pay period ending December 10, 1983. The next paychecks were received on January 3, 1984, and according to the defendant, were for work performed in 1984. This paycheck on January 3, 1984, was created to avoid making the plaintiffs go about a month without a paycheck. Thus, 1984 was divided into 25 pay periods instead of 24.

Plaintiffs claim they worked from December 10 to December 31 for free. Defendant states, however, that all plaintiffs received their annual salaries in 1983 in the form of 26 paychecks as verified by each employee’s W-2 form. Plaintiffs counter that the first IV2 paychecks received in 1983 were for work performed in 1982 regardless of when the money was actually received. Hence, defendant still owes for the work performed in late 1983. Moreover, plaintiffs claim certain employees, who were terminated in 1983, were given paychecks after their termination date in order to compensate them for their work up to the termination date.

After trial, the jury returned a verdict finding that plaintiffs were owed for work performed between December 10 and December 31, 1983. By special interrogatories, the jury also found that plaintiffs were salaried employees; were entitled to their annual salary in 1983; were paid their annual salary in 1983; but were not paid the compensation to which they were entitled in 1983. Moreover, the jury specially found that defendant did not budget a 27th payroll in 1983 and that the amount budgeted by defendant to compensate plaintiffs was their annual salary.

The trial court based its decision and order granting defendant’s motion for directed verdict on the grounds that plaintiffs were paid all they were entitled to in 1983 under the terms of the contract entered into between the parties.

Directed verdict is properly entered “in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) Thus, the procedural issue is whether the trial court violated the Pedrick standard in granting defendant’s motion for directed verdict. Substantively, defendant raises two defenses. First, that plaintiffs, being salaried employees, were all paid the amounts they were entitled, in that each employee received 26 paychecks totalling their annual salary in 1983. Second, that defendant did not appropriate any money for an additional paycheck in 1983 beyond the 26 paid.

It is not disputed defendant has the responsibility of maintaining salary schedules and, prior to 1984, paid salaried employees an annual salary rate divided into 26 pay periods per year. Then, in 1984, defendant properly instituted a semimonthly pay schedule wherein salaried employees were paid on or near the 15th and the end of each month, thereby creating 24 pay periods. Because, however, 1984 was the transition year, defendant created a 25th pay period in order to avoid the harsh effect of employees going a month without a check. Nonetheless, the defendant maintains that all money paid in 1984 was for work performed in 1984. The reason, defendant says, the employees’ last paycheck in 1983 was on December 16 is the biweekly pay system contains a fundamental flaw because it is based on the erroneous assumption that there are exactly 52 calendar weeks in a year. Thus, a 27th payroll will “roll up” over the course of 10 or 11 years. This is what happened in 1982, so defendant began the 1983 pay period early, again to avoid a large gap in pay periods. The problem, however, arose again in 1983 because it was merely carried over from 1982.

First, defendant’s defense of lack of appropriation is without merit for the simple reason that although only 26 pay periods were appropriated for 1983, it does not resolve the question of whether money is owed. Plaintiffs assert that prior to 1984, defendant paid employees for services after they were performed, but then creatively avoided payment for weeks worked by changing to a new payroll system. Therefore, the first payment made in 1984 should be credited towards work performed in 1983 and not 1984. Regardless, defendant need not have budgeted any more money because the evidence indicates that at the end of 1983 a balance of $1,651,583 remained in the budget for salaries, a figure well above the amount prayed for. In fact, defendant’s year-end audit showed an accrued payroll liability of $1,451,642. We do not dispute the law cited by defendant regarding defendant’s responsibility to appropriate funds and not being required to spend money beyond that appropriation, but it does not address the issue of this case.

It is clear that in years preceding 1984, plaintiffs were paid by defendant for services after the date of performance. The payroll stubs indicated the period of time for which employees were being paid. For example, the January 3, 1983, paycheck received by plaintiffs was for services rendered during the pay period ending December 25, 1982. Similarly, all witnesses testified that employees were not paid in advance prior to 1984. To accept defendant’s position that all of the pay periods in 1983 were for work performed in 1983 is to believe that an employee first starting employment on January 1, 1983, would receive a full paycheck on January 3, 1983, and then work to earn the money. Two witnesses testified that when their employment was terminated in 1983, they received subsequent paychecks to compensate them up until the date of termination. Certainly, if defendant was paying employees in advance, no additional paychecks would have been required. Although plaintiffs apparently received an amount equal to their annual salaries in 1983, defendant’s change in payroll scheduling effectively avoided paying plaintiffs for work performed from December 10 to December 31, 1983; money which would have been paid in the following year under the old system.

To illustrate, if Mr. “X” would have been hired on January 1, 1983, under the old system, his first paycheck would have been on January 14, 1983, and would have been for work performed through January 8, 1983, or one week of work. Nonetheless a previous paycheck had . been issued on January 3, 1983, but Mr. “X” would not have received any compensation because those paychecks by their own terms covered work though December 25, 1982. Thus on January 14, 1983, defendant owed Mr. “X” for one week of salary. The next paycheck was on January 28 and covered the period from January 8 through January 22, 1983, and would have been Mr. “X’s” first full paycheck. Carrying this through until December 31, 1983, Mr. “X” would have received a total of 25 paychecks, with one paycheck being for Vz of a pay period. Undeniably, each paycheck represents two weeks. In essence then, Mr. “X” would have received 241/2 paychecks. Therefore, if the first paycheck in 1984 was for work performed in 1984, Mr. “X” would still be owed for SVz weeks of work performed in 1983. This is plaintiffs' position. Although all plaintiffs received 26 paychecks in 1983, they have not been fully compensated for work performed in 1983 because the first IV2 paychecks covered work periods in 1982. Amounts owed at the end of a year prior to 1984 were carried over and paid in the following year. Defendant cannot now change the system without first being current under its old system. The jury’s verdict that money was owed to plaintiffs is correct.

There is substantial evidence favorable to plaintiffs’ position in this cause. Therefore, we need not consider the other issues raised by plaintiff as additional grounds for reversal. The trial court’s decision and order granting defendant’s motion for directed verdict and its order denying plaintiffs’ post-trial motion are both reversed and the cause is remanded for further hearing consistent with this opinion.

Reversed and remanded.

HEIPLE and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    BOBBY M. PIWOWAR, JR., a Minor by Janet V. Piwowar, his Mother and Next Friend, Plaintiff-Appellant, v. CLINT GARRETT, Defendant-Appellee (Vyto Spackauskas, Jr., a Minor, et al., Defendants).
    Third District
    No. 3—88—0075
    Opinion filed April 25, 1989.

      Douglas W. Graham, of Chicago, for appellant.
    William C. Brittan and Neil D. O’Connor, both of O’Connor & Schiff, of Chicago (Loretta M. Griffin, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Bobby Piwowar sought damages for injuries sustained while attempting to stamp out a grass fire on property belonging to defendant Clint Garrett. The trial court entered a summary judgment in favor of defendant. We affirm.

Plaintiff, who was 12 years old, was walking with his 13-year-old friend, Vyto Spackauskas, across an empty lot owned by defendant, when Vyto attempted to light a cigarette and in the process dropped his lighter onto the ground, thereby starting a grass fire. Vyto wanted to run away, but plaintiff thought they should stamp out the fire to avoid getting into trouble. Plaintiff slipped as he jogged toward the flames and fell into the fire. His clothing caught fire, and he was severely burned before he was able to extinguish the flames in a large puddle of water nearby.

Plaintiff’s complaint alleged that defendant’s premises were saturated with gasoline and that an explosion knocked plaintiff to the ground and caused his burns. Defendant denied all the allegations concerning the presence of gasoline and asserted in his affirmative defense that any gasoline on the premises was brought there by plaintiff and Vyto without the knowledge of defendant. Defendant’s motion for summary judgment incorporated plaintiff’s deposition, in which he described the accident which resulted in his injuries. According to the deposition, plaintiff detected no gasoline in the vicinity of the fire. He did see a plastic bleach bottle about a foot away from the flames, but it did not ignite.

On appeal plaintiff contends the trial court erred in entering summary judgment for defendant because the court failed to recognize that plaintiff had the status of an invitee to whom defendant owed a duty of ordinary care under the “rescue doctrine.” It is plaintiff’s theory, for purposes of this argument, that he was attempting to protect defendant’s property from fire at the time he was injured.

This contention is without merit for several reasons. First, the common law categories of trespasser, licensee and invitee are no longer applicable in determining the landowner’s liability for injuries to a child upon the land, but rather the test is the foreseeability of harm to the child. Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 625, 126 N.E.2d 836.

Second, Illinois does not recognize the “rescue doctrine” as a basis for liability under the facts of this case. Illinois courts have held that “a plaintiff *** injured in an attempt to rescue a third party *** [may] negate the presumption that his intentional act of rescue is the superseding cause of his injuries, thereby allowing him to prove that the defendant’s negligence was the proximate cause of his injuries and to negate the presumption that he was guilty of contributory negligence by voluntarily assuming a known risk of harm in the rescue attempt.” (McGinty v. Nissen (1984), 127 Ill. App. 3d 618, 620, 468 N.E.2d 445.) Plaintiff does not claim to have been attempting to rescue his friend or any other third party but merely to have been attempting to prevent himself from getting into trouble. Furthermore, the grass fire was on an empty lot containing no buildings or structures that would have been endangered by the fire.

Third, plaintiff’s argument is premised on the assumption that gasoline was present on the ground where the lighter was dropped. However, plaintiff’s own deposition contains nothing to support the allegations of the complaint concerning the presence of gasoline. In fact, the deposition indicates that plaintiff neither saw nor smelled gasoline in the vicinity. The ground was damp because it had been raining earlier the morning of the accident. Thus, plaintiff’s assumption is not supported by anything in the record.

The determinative question is whether this fire was an obvious danger which a 12-year-old child would be expected to appreciate and to avoid. Under the law of Illinois, children of an age to be allowed at large may reasonably be expected to fully understand and appreciate the danger of fire. (Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023.) Even a child of five years can be expected to comprehend and avoid the obvious risks presented by fire. (Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846.) Plaintiff stated in his deposition that he had had Boy Scout training as to the dangers of fire, and in any event, a boy of his age would be expected to understand fully the obvious danger involved in attempting to extinguish a grass fire under these circumstances.

The material facts of this case are not in dispute. Under the pleadings and deposition in the record, defendant owed no duty to plaintiff, the breach of which could be the basis of liability. Summary judgment for defendant was properly entered by the trial court, and that judgment is affirmed on appeal.

Affirmed.

HEIPLE and WOMBACHER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK WINSTON KERN, SR., Defendant-Appellant.
    Third District
    No. 3—88—0465
    Opinion filed April 28, 1989.

      Ruud & Scovil, of Rock Island (Douglas C. Scovil, of counsel), for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Frank Kern appeals from the judgment of the circuit court of Rock Island County denying his petition to rescind the statutory summary suspension of his driver’s license. Kern raises three issues in this appeal, arguing first that the circuit court erred in concluding that the arresting officer had reasonable grounds to believe that Kern was driving on a highway while under the influence of alcohol (DUI); second, that the circuit court erred in concluding that Kern refused to submit to or complete a test to determine his blood-alcohol concentration; and finally, that the circuit court erred in denying his motion for judgment on the pleadings. Because we conclude that the circuit court’s judgment that Kern refused to submit to the test is against the manifest weight of the evidence, we confine our discussion to that issue.

Following his arrest for DUI, Kern was taken to the Moline police department. Lieutenant Brockway, the breathalyzer operator, testified that at approximately 2:01 a.m. he began the 20-minute observation period necessary for the administration of the breath test. He stated that, as a matter of course, he permits any person who wishes to speak with an attorney the opportunity to consult legal counsel, so he told Kern that he could contact his lawyer. Kern then called an Iowa attorney, who told Kern that he was unfamiliar with Illinois law and advised him to call an Illinois lawyer. After the call Kern was asked to take the test, but Kern said that he needed to talk to another attorney since the Iowa attorney was not familiar with Illinois law. Lieutenant Brockway told Kern that he could not permit him to make a second call as it was time to take the test. Kern then repeated his request to talk to an Illinois attorney. Though the officer said that Kern would have to take the test first, he permitted Kern to call an Illinois attorney. After the call, Kern told Lieutenant Brockway that he would take the test. Brockway advised Kern that it was too late because the time for taking the test had elapsed.

At the conclusion of the hearing, the circuit court found that there was probable cause for the stop, that the “Warning to Motorist” was read to Kern, that Kern was issued a traffic citation for DUI, that the officer had probable cause to believe that Kern was DUI, that Kern was requested to submit to a breath test, and that Kern refused to submit to the test. The court therefore sustained the summary suspension of Kern’s driver’s license. Kern then brought this appeal.

A defendant is considered to have refused to submit to or complete a blood-alcohol concentration test where "after a clear warning of the ramifications resulting from a refusal [citation], an officer explicitly asks a defendant whether he, or. she, will take the test, and the defendant, by word, act or omission, clearly refuses to take the test.” (People v. Brennan (1984), 122 Ill. App. 3d 602, 603, 461 N.E.2d 1067, 1068.) In this case there is no evidence that Kern verbally refused to take the test. The State argues, however, that Kern’s repeated requests to consult counsel amounted to a refusal to take the test. We disagree. Ordinarily a defendant has no right to consult counsel prior to taking the test. (People v. Gaddi (1986), 145 Ill. App. 3d 227, 230, 494 N.E.2d 696, 698.) In this case, however, Lieutenant Brockway testified that he permits those who request legal counsel the opportunity to consult an attorney. In fact, the officers permitted Kern to contact an Iowa attorney without considering Kern to have refused the test. Having established such a policy, the officers could not consider Kern to have refused the test merely because he pressed a request to consult an Illinois attorney.

Additionally, we note that while a defendant’s conditioning his taking of a blood-alcohol test on his ability to consult legal counsel may constitute a refusal (Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 344, 459 N.E.2d 651, 654), there is nothing in the record to indicate that Kern stated any condition to his taking the test. In fact, the record indicates that after Kern spoke with an Illinois attorney, he agreed to take the test.

Thus, it is evident from the record that Kern did not refuse to submit to or complete the requested blood-alcohol test. We, therefore, conclude that the trial court’s judgment that Kern refused to submit to the test was against the manifest weight of the evidence (People v. Brandt (1988), 165 Ill. App. 3d 406, 409, 519 N.E.2d 85, 87; People v. Bafia (1983), 112 Ill. App. 3d 710, 712, 445 N.E.2d 878, 879), and we accordingly reverse its judgment.

Reversed.

WOMBACHER, P.J., and SCOTT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LUNDELL, Defendant-Appellant.
    Third District
    No. 3—88—0429
    Opinion filed April 28, 1989.

      Joseph N. Ehmann, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Walter R Hehner, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, David Lundell, was tried by a jury and convicted of one count of aggravated criminal sexual assault and three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14(b)(1), 12 — 16(d)). He appeals, arguing that statements made by the prosecutor during closing arguments deprived him of a fair trial.

The record reveals that on February 26, 1987, a detective with the Moline police department went to the defendant’s apartment to investigate a sexual abuse .complaint involving the defendant. The defendant invited the detective into his apartment and said that he had been expecting the police to call. He then gave the detective a calendar and told him that it contained everything the detective would want to know, because the defendant had recorded in code on the calendar all of his sexual contacts with various children. At the police station, the defendant gave a statement to the detective and then directed the police to other incriminating items that could be found in his apartment. The defendant also explained the code he had used on the calendar.

The primary defense offered by the defendant was that he was insane at the time the alleged crimes occurred. The record showed that the defendant had been suffering from a manic disorder since 1969, when he was discharged from the Air Force due to his mental condition. In support of his defense, the defendant presented the testimony of psychiatrist Eric Ritterhoff, who testified that the defendant suffered from a manic bipolar disorder. Further, clinical psychologist Paul Skinner testified that the defendant was insane when the crimes occurred.

The State presented the testimony of clinical psychologist William McEchron and the testimony of psychiatrist Robert Chapman. Both doctors testified that the defendant’s mental condition did not impair his ability to understand and appreciate the criminality of his acts. Dr. Chapman testified that in his opinion the defendant’s mental disorder wás in remission and that the defendant was not legally insane at the time of the alleged criminal acts.

• During closing arguments, the prosecutor made several comments regarding the validity of the defendant’s insanity defense. Initially, the prosecutor told the jury that the defendant and his attorney were “trying to concoct this issue of insanity.” During his rebuttal, the prosecutor stated in reference to defense counsel:

“He told you that if the defendant had not confessed to the crime, given the calendar to the police officer, he would have gotten or tried to get the defendant off and he told you how he was going to do that. *** He would misstate the evidence. *** He is trying to get him off by creating this issue of insanity and obscuring the facts on that issue. He is doing the same thing. He is just doing it in a different way. The defendant confessed. Maybe that’s why he has said people don’t like lawyers. Well, I will submit that not every lawyer would do that — .”

We note that nothing in the record supports the prosecutor’s statements.

At the close of the trial the jury made a guilty but mentally ill finding rather than the not guilty by reason of insanity finding the defendant had sought. The sole issue on appeal is whether the statements made by the prosecutor during closing arguments deprived the defendant of a fair trial.

Arguments based upon the evidence or upon reasonable inferences arising therefrom are within the scope of proper closing arguments. (People v. Anderson (1971), 48 Ill. 2d 488, 272 N.E.2d 18.) However, improper prosecutorial remarks during closing arguments are reversible error when they result in substantial prejudice to the defendant or when the statements serve no purpose but to inflame the jury. (People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746.) Unless based on some evidence, statements made in closing arguments by the prosecution which suggest that defense counsel fabricated a defense theory or attempted to free his client through trickery or deception are improper. (People v. Emerson (1983), 97 Ill. 2d 487, 455 N.E.2d 41.) The reviewing court must assess the evidence to determine whether the error was a substantial factor in the verdict. People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3.

The central issue at trial in this case was whether the defendant was legally insane at the time he committed the acts. The experts agreed that the defendant suffered from a mental disorder, but they were equally divided regarding whether the defendant was insane at the time he committed the crimes. The State’s experts testified that the defendant’s condition was in remission when the acts occurred. The defense experts testified that he was insane at the time. The statements by the prosecutor went directly to the issue of the defendant’s insanity. The prosecutor attempted to convince the jury that the defendant, with the aid of his attorney, had fabricated his insanity defense. The prosecutor also implied unethical conduct on the part of defense counsel.

The prosecutor’s statements were clearly improper. Further, we are unable to say in this case, where the evidence was closely balanced, that the prosecutor’s statements did not prejudice the defendant. The jury was required to make a very close judgment on the issue of the defendant’s insanity and these statements by the prosecution may have tipped the balance against the defendant. Therefore, the defendant’s convictions must be reversed and the cause remanded for a new trial.

The decision of the circuit court of Rock Island County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

WOMBACHER, P.J., and STOUDER, J., concur.


text:
      In re ESTATE OF SIDNEY H. WHITAKER, Deceased (La Salle National Bank, Ex’r of the Estate of Sidney H. Whitaker, Deceased, Respondent-Appellant, v. Sidney H. Whitaker, Petitioner-Appellee (William H. Barber et al., Respondents)).
    Third District
    No. 3—88—0548
    Opinion filed April 27, 1989.

      Robert M. Hansen, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, of La Salle (John S. Duncan, of counsel), for appellant.
    Boyle, Goldsmith, Shore & Bolin, of Hennepin (Walter Durley Boyle and Lawrence Patterson, of counsel), for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The La Salle National Bank (Bank) appeals from a trial court order granting summary judgment in favor of Sidney Whitaker (Whitaker), whom the Bank owes $56,834.07 as a result of its improper management of the estate of Whitaker’s uncle (also named Sidney H. Whitaker). The Bank contends the court should have entered judgment against it only in its capacity as executor of the estate (not in its individual capacity) and should not have ordered interest to be paid on the amount owed. We modify a portion of the judgment and otherwise affirm.

The uncle died testate on November 3, 1981, leaving no descendants, and on December 15, 1981, the Bank was appointed executor of the estate. The will provided that the testator’s property was to be placed in trust, with income from the trust paid to his widow until her death. The will further directed the trustee to thereafter distribute the principal of the trust to the nephew, Whitaker. The widow renounced the will on March 19, 1982, and as a result she was to receive one-half of the estate in fee and Whitaker was to receive the other half in fee. Ill. Rev. Stat. 1987, ch. 110½, par. 2 — 8(a).

During its administration of the estate, the Bank incorrectly allocated $14,602.17 of the Federal estate tax to the widow and $142,073.48 of the tax to Whitaker, and it has since acknowledged that the Federal estate tax should have been apportioned equally. Although the estate had sufficient funds on hand with which to pay the tax, the Bank requested Whitaker to advance $44,423.24 as his share of the estate tax. On August 17, 1982, Whitaker made the payment to the Bank. The estate tax was increased following an Internal Revenue Service audit, and Whitaker received another request for payment from the Bank. On August 29, 1983, Whitaker advanced an additional $31,237.06 to the Bank. During its administration of the estate, the Bank requested Whitaker to advance other sums, none of which are relevant for purposes of this appeal. By 1985, when the Bank rendered its final accounting, Whitaker had paid $148,974.28 to the estate pursuant to the Bank’s requests, while the Bank had collected only $5,405.15 from the widow.

Whitaker filed objections to the final accounting and specifically noted the unequal apportionment of the Federal estate tax liability. The Bank filed an amended final account and report, which disclosed that all of the estate’s assets had been disbursed, but did not correct the unequal apportionment of the estate tax liability. Whitaker filed objections to the amended account, again raising the issue that he was overcharged by the executor and requesting that his distributive share be increased.

In the meantime, on June 26, 1985, the widow died, leaving a will which bequeathed the residue of her estate to her nieces and nephews. The Bank also served as executor of the widow’s estate, and it appears that many of the assets of the widow’s estate have been disbursed. A majority of the widow’s beneficiaries filed numerous objections to the Bank’s amended final account and report of their uncle’s estate.

On April 8, 1988, Whitaker filed a motion for summary judgment on the objections to the Bank’s amended final account and report and an affidavit in support of the motion. Whitaker alleged that the Bank unnecessarily collected sums of money from him to pay the estate tax and that he was entitled to repayment of the amount he overpaid, plus interest. The beneficiaries under the widow’s will filed a response to Whitaker’s motion and a memorandum in opposition to the motion. The Bank filed no counteraffidavits.

A hearing on Whitaker’s summary judgment motion was held on May 24, 1988. The Bank, as executor, and the widow’s beneficiaries agreed that Whitaker was entitled to a refund. However, the Bank and the widow’s beneficiaries expressed concern about the source of the funds which would be used to repay Whitaker, since the widow and her estate had received the benefit of Whitaker’s overpayment and the deceased’s estate had no more funds. The Bank objected to the payment of interest on grounds that there was no statutory authority for such an award. The trial court granted judgment in favor of Whitaker and against the Bank as executor of the estate in the amount of $63,731 plus 5% interest. The court stated it was not yet deciding the source from which the Bank would be able to obtain the money.

The widow’s beneficiaries filed a motion to vacate the judgment. They questioned the amount of the judgment and whether the court would reserve its determination of whether the judgment would be entered against the Bank as the executor or individually as a surcharge for its alleged mismanagement of the estate. Whitaker filed a memorandum in response to the motion, arguing that while the Bank should be personally liable for the loss occasioned by its improper payment of funds, this would not preclude the Bank from attempting to collect the money from the parties who were overpaid.

On July 19, 1988, a hearing on the motion to vacate was held. Following discussions regarding the amount Whitaker overpaid, the court modified the judgment and awarded Whitaker $56,834.07 together with 5% interest. The interest on $44,423.24 was computed from August 17, 1982, the date Whitaker paid that amount to the Bank, and the interest on the remaining amount was computed from August 16, 1983, .when Whitaker made the second estate tax payment to the Bank. The court entered the order against the Bank as a corporation, rather than as executor of the estate. It explained at the hearing that by entering the order in that fashion, the judgment was collectible, but the Bank was free to ask for a credit on the judgment against the estate. The Bank has appealed.

First, the Bank contends that the court erred in entering judgment against it individually, rather than in its capacity as executor. The Bank argues that the court did not hear evidence on whether the estate had been mismanaged and whether, as a result of that mismanagement, the Bank should be held individually liable for the money owed to Whitaker. The Bank further asserts that it should be given the opportunity to obtain the funds due Whitaker from the widow’s estate, which received the windfall as a result of the Bank’s error, and asks this court to modify the judgment by entering it against the Bank as executor. Whitaker has no disagreement with giving the Bank the opportunity to recoup the amount of the judgment from the widow’s estate.

A review of the record discloses that the court entered judgment against the Bank individually in part because all parties agreed that Whitaker was entitled to the money and because the court was aware that there were no assets in the estate. However, the court specifically mentioned that, the Bank had the option of seeking a credit for the judgment against the estate. This indicates that while the court intended to hold the Bank personally liable, it did not intend to preclude the Bank, in its capacity as executor, from attempting to satisfy the judgment by regaining possession of the funds it improperly distributed to the widow. Accordingly, we modify the judgment to better reflect the apparent intent of the trial court and hereby enter judgment against the Bank both jointly and severally, in its capacity as executor and individually. This leaves the Bank with at least the opportunity to attempt to recoup funds overdistributed to the widow’s estate and ensures that, in any event, Whitaker will receive the money he is owed as a result of the Bank’s error.

The second issue the Bank raises is whether any statute authorizes the award of interest under these circumstances. Whitaker contends that the court properly awarded interest under section 2 of the Interest Act (Ill. Rev. Stat. 1987, ch. 17, par. 6402). That statute provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance [;] on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1987, ch. 17, par. 6402.)

Although this case presents a rather unique set of facts, we conclude that Whitaker is entitled to 5% prejudgment interest from the dates on which he paid the amounts to the Bank.

On two occasions and at the Bank’s request, Whitaker advanced money to the Bank for its use, as executor, in the payment of obligations of the estate, even though the estate had on hand sufficient assets with which to pay the obligations. Whitaker and the Bank thus entered into a creditor/debtor relationship for purposes of this statute. Whitaker was never properly reimbursed for the money he advanced, and he is entitled to statutory interest at 5% from the dates the Bank received the money. Accordingly, the trial court’s award of interest was not in error.

In conclusion, we modify the order of the circuit court so that summary judgment is entered against the bank jointly, as an individual corporation and in its capacity as executor of the estate of Sidney H. Whitaker. The remainder of the order is affirmed in full.

Affirmed as modified.

SCOTT and STOUDER, JJ., concur.


text:
    ROBERT E. BATTEN, Indiv. and as Ex’r of the Estate of Margaret Batten, Deceased, Plaintiff-Appellant, v. R.D. RETZ et al., Defendants-Appellees.
    Third District
    No. 3-88-0472
    Opinion filed April 27, 1989.

      Paul R. O’Malley, of Paul R. O’Malley, Ltd., of Chicago (Thomas D. Nissen, of counsel), for appellant.
    Roger Clayton and Nicholas J. Bertschy, both of Heyl, Royster, Voelker & Allen, of Peoria (John V. Patton and Peter C. Fieweger, of counsel), for appellee R.D. Retz.
    John V. Patton, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellees Y. Rhee and Quad-City Radiologists, Ltd.
    Murvel Pretorius, Jr., and Donna Wamack Cruz, both of Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria, for appellee M. Ebalo.
    Peter C. Fieweger, of Katz, McAndrews, Durkee, Balch & Lefstein, P.C., of Rock Island, for appellee Illini Hospital District.
   JUSTICE BARRY

delivered the opinion of the court:

On October 26, 1987, plaintiff Robert E. Batten brought a complaint in two counts against defendant Doctors Retz, Ebalo and Rhee and defendant radiologist and hospital corporations complaining of medical malpractice that allegedly resulted in the untimely death of Margaret Batten on October 26, 1985. On motion of the defendants, the circuit court of Rock Island County dismissed the complaint with prejudice for failure to comply with section 2 — 622 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622). The court subsequently denied plaintiff’s post-judgment motion to reconsider and vacate its order of dismissal and for leave to amend. Plaintiff appeals from both dispositions. We affirm.

Attached to plaintiff’s original complaint is an affidavit of counsel pursuant to section 2 — 622(a)(2) stating that written medical reports and an attorney’s certificate as required by section 2 — 622(a)(1) would not be available before expiration of the statute of limitations. On January 26, 1988, 92 days after the complaint was filed, plaintiff’s attorney filed an affidavit pursuant to section 2 — 622(a)(1) stating that he had consulted with “a physician who has experience, knowledge and training in the area of management and diagnosis of liver disease” and a registered nurse, both of whom had reviewed the medical record for Margaret Batten and indicated that a reasonable cause of action exists. The affidavit further stated that counsel was relying on the doctrine of res ipsa loquitur. Attached to the affidavit were two “certificates” from an unidentified board-certified internist with a subspecialty in hepatology and an unidentified registered nurse “with experience in postoperative management of patients who have undergone cholecystectomies.”

Defendants moved to dismiss the cause of action on grounds that: (1) counsel’s affidavit did not state that he had consulted with a health professional in the same specialties as Dr. Retz, a specialist in general surgery, and defendant radiologists; (2) counsel’s affidavit failed to state that he had consulted with a physician licensed to practice medicine in all its branches as required by section 2— 622(a)(1); (3) plaintiff had failed to provide written reports of reviewing health professionals within 90 days as required by section 2— 622(a)(2); (4) separate certificates and reports were not filed as to each named defendant as required by section 2 — 622(b); (5) plaintiff’s counsel had not stated his intent to rely upon res ipsa loquitur upon filing the complaint; and (6) no reviewing health professional had stated that negligence had occurred in the course of medical treatment as required by section 2 — 622(c).

On February 26, 1988, plaintiff moved to amend his complaint. Attached to the proposed first amended complaint are an affidavit of counsel and four “certificates” from an unidentified “medical physician licensed to practice medicine in all of its branches.” Counsel’s affidavit concludes with a statement that he is relying on both res ipsa loquitur and specific negligence. The four “certificates” allege that the physician reviewed the medical records of Margaret Batten; that the records indicate that a reasonable and meritorious cause of action exists against each of the named defendants; that defendants “failed to order appropriate diagnostic tests and timely consult with a gastroenterologist prior to surgical intervention,” “failed to recommend and perform appropriate diagnostic tests to rule out common bile duct obstructions,” and “failed to follow standard practices and procedures in the plaintiff’s decedent’s postoperative management of her T-tube drain”; and that defendants’ various departures from acceptable medical care caused or contributed to Margaret Batten’s untimely death.

On March 8, the circuit court granted defendant Illini Hospital’s motion to dismiss with prejudice on grounds that plaintiff had failed to file a timely certificate and written report of a reviewing physician licensed to. practice medicine in all its branches, and that the nurse’s certificate filed on the 92nd day after filing the complaint was insufficient under section 2 — 622(a)(1). In the exercise of its discretion, the court denied plaintiff’s motion to amend the complaint against the hospital on grounds that the proposed physician’s certificate was untimely and no evidence of good cause for the late filing had been shown.

The court similarly granted motions to dismiss with prejudice filed by the remaining defendants. Grounds stated are that the affidavit and certificate filed on January 26, 1988, were legally insufficient and that plaintiff’s proposed amendment failed to meet the requirements of section 2 — 622 of the Code of Civil Procedure.

In this appeal, plaintiff argues that his two-day delay in filing documentation pursuant to section 2 — 622(a)(2) should have been excused as a mere technicality. (See, e.g., McCastle v. Sheinkop (1987), 121 Ill. 2d 188, 520 N.E.2d 293; Walter v. Hill (1987), 156 Ill. App. 3d 708, 509 N.E.2d 804; Bassett v. Wang (1988), 169 Ill. App. 3d 663, 523 N.E.2d 1020; see also Ushman v. Sterling Drugs, Inc. (1988), 166 Ill. App. 3d 726, 521 N.E.2d 313.) Plaintiff also contends that the circuit court abused its discretion in denying plaintiff leave to file an amended complaint with an affidavit of counsel and four certificates.

The case before us is distinguishable from those cited by plaintiff in support of his “mere technicality” argument. In each of the cases cited, the trial judge did not exercise any discretion but dismissed the complaints with prejudice on the understanding that such dismissal was mandated by the act. Here, the trial judge was aware that he had discretion to dismiss with or without prejudice and expressly exercised that discretion in allowing defendants’ motions. Thus, the question before us is whether the court here abused its discretion in dismissing plaintiff’s complaint with prejudice and denying plaintiff leave to amend.

In Hauk v. Day (1988), 167 Ill. App. 3d 758, 521 N.E.2d 1243, this court affirmed a ruling of the circuit court denying defendants’ motion to dismiss with prejudice for plaintiff’s 12-day delay in filing an affidavit pursuant to the 90-day extension of section 2 — 622(a)(2). (See also Whamond v. McGill (1988), 168 Ill. App. 3d 66, 522 N.E.2d 211.) It does not appear, however, that the reviewing professional’s report was in any other respect objectionable in Hauk. Neither Hauk nor any other case cited to us requires the exercise of discretion in favor of a plaintiff in a medical malpractice action when the certificates and medical reports suffer from numerous other defects in addition to being untimely filed.

Clearly, plaintiff’s original complaint, attorney’s affidavit and the certificates were insufficient under section 2 — 622. Untimely filing of the documents is the least of their faults. Although the attorney’s affidavit attached to plaintiff’s proposed first amended complaint appears on its face to satisfy the minimal requirements of sections 2 — 622(a) and (c), we find that the material defects of the proffered “certificates” of the reviewing physician were too substantial to be readily curable. Moreover, our reading of section 2 — 622 does not comport with plaintiff’s understanding, as acknowledged during oral argument of this case, that the terms “written report” and “certificate” are simply interchangeable. In subparagraph 2— 622(a)(1), it is apparent that the legislature contemplated the filing of a written report by a reviewing health professional “clearly identifying the plaintiff [here, plaintiff’s decedent] and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists” (emphasis added), and a certificate of merit — or affidavit — of the plaintiff or his attorney, concluding that “on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause [of] *** action.” When res ipsa loquitur is to be invoked, both the certificate of merit and the written report of the reviewing health professional “must state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2 — 622(c).

The “certificates” submitted by plaintiff in this case are poor substitutes for the documentation contemplated by section 2 — 622. They lack details to explain the basis for the physician’s conclusion that a reasonable and meritorious cause for filing the complaint exists, and they fail to make any allegation of negligence. The attorney’s affidavit in this case is defective as well in that it fails to allege that any health professional was of the opinion that negligence occurred in the course of Margaret Batten’s medical treatment. Moreover, the circuit court acted within its discretion in considering the lack of any showing of good cause for the late filing of written reports and certificates or affidavits. See Santangelo v. Raskin (1988), 137 A.D.2d 74, 78, 528 N.Y.S.2d 90, 93 (construing comparable New York legislation enacted “to insure that the [medical malpractice] plaintiff has a valid cause of action” and finding that “the Legislature did not intend that a violation of the statute should be excused without some proof that there was a reasonable excuse for the default and that there is legal merit to the claim”).

We also reject plaintiff’s argument that the circuit court abused its discretion in denying plaintiff’s post-judgment motion to amend to cure all defects. Plaintiff did not tender a proposed amended complaint with a certificate of merit and written reports in compliance with the statute to demonstrate that the complaint was not frivolous. We hold that the trial court did not abuse its discretion.

The judgment of the circuit court is affirmed.

Affirmed.

WOMBACHER, P.J., and HEIPLE, J., concur.


author: JUSTICE STOUDER JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN J. BERG, Defendant-Appellant.
    Third District
    No. 3—88—0265
    Opinion filed April 27, 1989.
    HEIPLE, J., dissenting.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James T. Teros, State’s Attorney, of Rock Island (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Kevin J. Berg, appeals from his conviction for driving while license revoked. He argues that the State was improperly granted a continuance, that he was not given a speedy trial, and that an exhibit was improperly entered into evidence against him. We hold that the trial judge improperly granted the State a continuance and reverse the conviction.

On October 4, 1987, the defendant was charged by uniform citation and complaint with driving while license revoked. (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 303(a).) The complaint set an appearance date of November 2, 1987. The defendant appeared in court on that date, pleaded not guilty, and demanded a jury trial. On November 23, 1987, the case was scheduled for a pretrial conference on December 9 and for trial on December 16. On December 9, 1987, the defendant withdrew his jury demand.

The case was called for trial on January 28, 1988. The State moved for a continuance because the arresting officer was unavailable. Over the objection of defense counsel, the trial judge granted the continuance. On March 17, 1988, the defendant was tried and convicted of driving while license revoked.

The defendant argues that the trial judge improperly granted the State a continuance. He notes that under Supreme Court Rule 504, an accused who pleads not guilty to a traffic offense should be granted a trial on the merits on his appearance date. (107 Ill. 2d R. 504; People v. Nelson (1974), 18 Ill. App. 3d 628, 310 N.E.2d 174.) The rule further states that an officer’s failure to appear on the appearance date shall normally not be considered good cause for a continuance. (107 Ill. 2d R. 504.) The purpose of the rule is to provide a traffic defendant with an early trial on the merits and to avoid multiple court appearances. People v. Means (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443.

The State’s sole argument in response is that the defendant failed to meet his burden of providing a complete trial record. The State notes that a continuance could have been properly granted if circumstances beyond the control of the prosecutor or arresting officer resulted in the officer’s unavailability. (People v. McCoy (1987), 155 Ill. App. 3d 725, 508 N.E.2d 739.) The report of proceedings prepared by the defendant states that a continuance was granted because the arresting officer was unavailable but provides no other information. The State argues that the record is insufficient because it does not reveal what happened at the hearing or any reasons for the officer’s unavailability.

We do not agree with the State. There is no suggestion in the record that the defendant excluded relevant testimony from the report of proceedings. Furthermore, if there had been evidence justifying the officer’s absence from trial, the State could have proposed an amendment to the report of proceedings or filed its own report for certification by the trial judge. (107 Ill. 2d Rules 323(c), 612.) Since the State did not do so, and since the record is sufficient to rule on this issue, we find that the defendant was entitled to a trial on the merits on his January 28, 1988, appearance date. Since he did not receive one, the proper remedy was dismissal of the cause without leave to reinstate. See People v. Nelson, 18 Ill. App. 3d at 631.

Because of our decision, we find it unnecessary to discuss the other issues raised by the defendant.

The judgment of the circuit court of Rock Island County is reversed, and the defendant’s conviction of driving while license revoked is vacated.

Reversed and judgment vacated.

BARRY, J., concurs.

JUSTICE HEIPLE,

dissenting:

In the present action, the defendant’s case was set for trial on January 28, 1988, at which time the State moved for a continuance due to the unavailability of the arresting officer. The motion to continue was granted over the defendant’s objection, and the defendant was eventually tried and convicted of driving while license revoked. The majority finds that the trial judge improperly granted the State a continuance and reverses the conviction. I find that Supreme Court Rule 504 provides the trial court with the discretion to grant continuances in such situations. Furthermore, since the record in the instant case is incomplete, the reviewing court is obliged to presume that the trial court acted correctly.

Supreme Court Rule 504 (107 Ill. 2d R. 504) states that an arresting officer’s failure to appear on the trial date “shall not normally be considered good cause for a continuance.” This rule contemplates that the trial court may properly grant such continuances in certain situations. In other words, an arresting officer’s unavailability could be proper grounds for a continuance.

The only reference to the motion for continuance that is part of the record on appeal is the following report filed by the defendant:

“On January 28, 1988, the matter was called for trial. The People made a Motion to Continue due to the unavailability of the officer; which Motion to Continue was granted over objection of the defendant.”

There is no verbatim transcript of what transpired at the January 28, 1988, hearing, and the record is silent as to the reason for the officer’s unavailability. If an officer’s unavailability is caused by circumstances beyond his control, a continuance may be granted on the State’s Attorney’s motion. People v. McCoy (1987), 155 Ill. App. 3d 725.

It is well settled that the defendant is responsible for providing a record which shows the errors complained. (People v. Smith (1969), 42 Ill. 2d 479.) Moreover, where the record is incomplete, or is silent, the reviewing court will invoke the presumption that the trial court acted correctly. (People v. Hamilton (1978), 64 Ill. App. 3d 276.) Since this court is faced with possibility that the trial court was justified in granting the continuance and the record does not explain further, this court must presume that the trial court properly used its discretion. Accordingly, I dissent.


text:
      In re MARRIAGE OF RICHARD A. WHARRIE, Petitioner-Appellee, and CHRISTINE A. WHARRIE, n/k/a Christine A. Hoffman, Respondent-Appellant.
    Third District
    Nos. 3—88—0403, 3—88—0594 cons.
    Opinion filed April 28, 1989.

      Robert E. White, of White, Marsh & Anderson, of Ottawa, for appellant.
    Craig M. Armstrong, of Armstrong, Surin & Engels, of Ottawa, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The trial court granted the petitioner, Richard A. Wharrie, the tax deductions for the parties’ children. The respondent, Christine A. Wharrie, n/k/a Christine A. Hoffman, appeals.

The record shows that on July 28, 1987, the trial court entered a judgment for dissolution of the Wharries’ marriage. The judgment incorporated a marital settlement agreement signed by the Wliarries. While the judgment awarded Christine custody of the parties’ three children, it did not mention who would receive the tax deductions for the children.

On May 5, 1988, Richard filed a petition asking the court to award him the tax deductions. Richard claimed that he and Christine had agreed prior to their divorce that he would receive the deductions. In her reply to the petition, Christine denied that they had reached such an agreement.

Evidence produced at the hearing on Richard’s petition showed that Christine’s attorney had drafted the settlement agreement incorporated in the dissolution judgment. Christine testified that the settlement agreement was intentionally silent on the deductions issue. She claimed she knew that as the custodial parent she would automatically receive the deductions in the absence of a provision to the contrary. Her attorney also stated that this was his objective in not including a deductions provision in the agreement.

Richard testified that he and Christine had agreed that he would receive the deductions. He contended that their agreement was left out of the settlement agreement by mistake.

The trial court found Richard’s testimony more credible than Christine’s. It then awarded him the deductions.

On appeal, Christine argues that the trial court erred in modifying the dissolution judgment on the basis of new evidence. In essence, her position is that the court’s jurisdiction was limited to correcting a mistake in the judgment, based upon a note, memorandum, or memorial paper in the files or records of the court. See Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271.

In general, when more than 30 days have passed since entry of a judgment, the trial court loses jurisdiction to modify the judgment. (Weilmuenster v. H.H. Hall Construction Co. (1979), 72 Ill. App. 3d 101, 390 N.E.2d 579.) However, under the doctrine of revestment, litigants may revest a court with jurisdiction after 30 days by actively participating in proceedings which are inconsistent with the merits of the prior judgment. People v. Kaeding (1983), 98 Ill. 2d 237, 456 N.E.2d 11; In re Marriage of Demond (1986), 142 Ill. App. 3d 134, 491 N.E.2d 501.

In the instant case, Christine did not object on jurisdictional grounds to the proceedings in issue and actively participated in them. At trial and on appeal she took the position that the dissolution judgment was intentionally silent on the deductions matter so that she would receive the deductions. Accordingly, the instant proceedings were inconsistent with the prior judgment.

Under the circumstances of this case, we find that the parties re-vested jurisdiction in the trial court. The court was then free to consider new evidence. Given the conflicts in that evidence, we will not disturb the court’s determination that it found Richard’s testimony more credible than Christine’s. Tandy v. Tandy (1976), 42 Ill. App. 3d 87, 355 N.E.2d 585.

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

Affirmed.

WOMBACHER, P.J., and BARRY, J., concur.