author: JUSTICE KNECHT

text:
    THE CITY OF CHAMPAIGN et al., Interveners-Appellants, v. THE ILLINOIS COMMERCE COMMISSION, Appellee.
    Fourth District
    No. 4-90-0392
    Opinion filed February 28, 1991.

      Frederick Stavins, City Attorney, and Kenneth N. Beth, of Evans & Froehlich, both of Champaign, for petitioners.
    Neil F. Hartigan, Attorney General, of Springfield (David L. Nixon, Special Assistant Attorney General, of Chicago, of counsel), for Illinois Commerce Commission.
   JUSTICE KNECHT

delivered the opinion of the court:

The cities of Champaign and Urbana (cities), intervenors, appeal from the final order of the Illinois Commerce Commission (Commission) which altered portions of an agreement reached between the cities and Northern Illinois Water Corporation (NIWC). (Northern Illinois Water Corp., No. 89 — 0176 (Illinois Commerce Comm’n, Mar. 21, 1990) (unpublished decision) (hereinafter Commission’s decision).) The cities contend the Commission erred in finding fees negotiated between them and NIWC should be recaptured from municipal customers only and in ordering the fees be line itemized. We affirm.

In 1986, the cities began negotiations with NIWC, a public utility which serves the Champaign-Urbana area. Negotiations were completed in 1989, with separate agreements between the cities and NIWC. Entitled “An Agreement Concerning the Right of Northern Illinois Water Corporation to Use the Public Ways of the City, Fire Protection, and Other Related Matters,” the agreements granted NIWC the nonexclusive right to install, operate, and maintain water facilities in, upon, along, across, and under the public ways of the cities for the purpose of providing and distributing water for public use. The agreements were for a term of 15 years.

Section 4.1 of the Champaign agreement provided for NIWC to pay the City of Champaign a one-time lump-sum payment of $112,764.36. The same provision in the City of Urbana agreement provided for a lump-sum payment of $53,308.70. The agreements stated the lump-sum payments were for the rights granted within the agreements, including the right of using the public ways. The payments were due and payable within 10 days from the date the Commission allowed amortization of the payments. Section 4.2 of the individual agreements provided so long as NIWC exercises and enjoys the rights granted to it under the agreements, NIWC is to pay the City of Champaign a minimum annual amount of $85,000 and to the City of Urbana a minimum annual amount of $42,500. Both agreements were contingent upon the authorization by the Commission of recovery in NIWC’s rates of the lump-sum payments provided for in section 4.1 of each agreement and the minimum annual payments provided for in section 4.2 of each.

On April 27, 1989, NIWC filed with the Commission a proposed general increase in water rates for the Champaign-Urbana service territory. The Commission staff (staff) challenged various charges imposed by the agreements between NIWC and the cities. Hearings were held on June 15, 1989, July 26, 1989, October 18, 1989, and December 14, 1989. On January 19, 1990, the cities entered their individual appearances.

The hearing examiner issued a proposed order on February 8, 1990. Regarding the lump-sum payments set forth in section 4.1 of the agreements, the proposed order stated:

“No party has asserted that the Cities lack authority to assess franchise fees against Respondent for the use of the Cities’ right-of-way or that such right-of-way is available from other sources. The Commission believes that Respondent has the responsibility to take all actions reasonably necessary to obtain right-of-way privileges at the lowest possible cost. In the instant case, the record indicates that Respondent has negotiated with the Cities over a prolonged period. There is no evidence in the record that Respondent could have [negotiated] more favorable agreements resulting in lower franchise fees or lower revenue requirements.
Staff has argued that there should be no recovery of the initial lump sum payments specified in the franchise agreements because the apparent bases of the amounts of such payments are the past due balances owed by the Cities to Respondent for fire protection during the period between December 1983 and July 1985. The Commission finds that the method utilized by the Cities to arrive at the amounts of the initial lump sum payment is not a sufficient basis to disallow such payments for rate-making purposes, where as explained above, there is no indication that a less costly alternative is available.
It is further Staff’s position that the lump sum payments pertain to a period prior to the test year. The Commission, however, agrees with Respondent that the initial lump sum payments are part of the total consideration for the franchises, which are applicable to current and future periods, not prior periods. The agreements provide that the lump sum payments are due in 1990, which is the test year. The Commission therefore, rejects Staff’s position that there should be no recovery of the lump sum payments.
Staff recommended the amortization of the lump sum payments over a 15 year period if the Commission determines that the payments are valid franchise fees. Respondent has proposed a three year amortization period. The only justification offered by Respondent for the three year amortization period is that the Agreements provide for such an amortization period. The Commission concludes that the lump sum payments should be amortized over a 15 year period in view of the fact that Respondent will be receiving benefits under the agreements for 15 years.
The Commission also rejects Respondent’s proposal to include the unamortized balance of the lump sum payments in rate base for the following two reasons. First, Respondent has presented no ratemaking theory as to why a return should be allowed on the amortized balance. Second, Staff witness Voss testified that Respondent expects that the Cities will pay the balances owed to Respondent for fire protection after they receive the lump sum payments. Respondent did not indicate that such testimony was untrue.” (Northern Illinois Water Corp., No. 89 — 0176 (Illinois Commerce Comm’n, Hearing Examiner’s proposed order, Feb. 8, 1990) (unpublished decision) (slip op. at 11-12) (hereinafter Hearing Examiner’s decision).)

In its final order of March 21, 1990, the Commission adopted this portion of the proposed order. Commission’s decision, slip op. at 11-12.

Regarding the minimum annual payments set forth in section 4.2 of the agreements, the hearing examiner’s proposed order, in part, stated:

“Staff witness Stack recommended that any amount included in the revenue requirement for franchise fees paid to the Cities of Champaign and Urbana be collected only from customers within the city limits of the respective Cities. He recommended that the charge for franchise fees be listed separately on the bills of those customers, and that the franchise fees be recovered through a flat charge that varies by meter size in the same manner that public fire protection charges are recovered.
Mr. Stack explained the bases of his recommendation concerning recovery of the franchise fees. He stated that franchise fees benefit the municipality imposing the fee. He indicated that it would be inequitable to force customers outside the municipal limits of Champaign and Urbana to pay for such fees through their water rates. He indicated that Union Electric Company has a tariff in effect pursuant to the Commission’s order in consolidated Docket Nos. 80 — 0370 and 80 — 0368 which recovers franchise fees through a percentage added to the base bill of customers located within the municipalities imposing the franchise fees.
Respondent has not opposed Mr. Stack’s recommendation concerning recovery of franchise fees.
In their brief, the Cities of Champaign and Urbana opposed Mr. Stack’s recommendation. The Cities contended that the franchise fees should be recovered from all customers in Respondent’s Champaign Division. They indicated that the existence of water pipes under their streets facilities [sic] the delivery of water to Respondent’s customers that are located outside their corporate limits. They concluded that Mr. Stack’s proposal unfairly forces their residents to subsidize ratepayers located outside their corporate limits.
The Cities also alleged that Mr. Stack has provided no rationale for his recommendation that the charge for franchise fees be shown as a separate line item on customer’s bills. The Cities indicated that there are many expenses incurred by the Company that are much larger than the Cities[’] charges for use of right-of-way. The Cities stated that Respondent has not been required to show the cost of the use of other right-of-way as a separate line item on its bills. The Cities also alleged that it has not been the practice of the Commission to list fees charged by municipalities as a separate line item on customers’ bills.
In its reply brief, Staff indicated that there is nothing in the record to support the Cities’ theory that franchise fees are entirely related to the use of their streets and damages caused to their streets. Staff asserted that the franchise fees are a hidden tax imposed by the Cities and as such, should be recovered from customers located in the area benefiting from the tax.
The Commission concludes that Mr. Stack’s proposal is reasonable and should be approved. The Commission agrees with Staff that the franchise fees are a hidden tax which should properly be imposed only on Respondent’s customers residing within the Cities and shown as a separate line item on their bills.” (Emphasis added.) (Hearing Examiner’s proposed order, slip op. at 31-32.)

In its final order, the Commission altered the proposed order by deleting the emphasized language above, “are a hidden tax which.” (Commission’s decision, slip op. at 32.) In all other respects, the Commission adopted this portion of the proposed order. Commission’s decision, slip op. at 31-32.

The Commission is a legislative agency created for the purpose of applying the numerous details of regulatory police power over public utilities. The legislature has vested in the Commission the function of fixing rates of public utilities which will be just and reasonable and produce a fair return upon the property used and employed in the public service. City of Hurst v. Illinois Commerce Comm’n (1983), 120 Ill. App. 3d 354, 458 N.E.2d 568.

The findings and conclusions of the Commission on questions of fact shall be held to be prima facie true; rules, regulations, orders, or decisions of the Commission shall be held to be prima facie reasonable; and the burden of proof upon all issues raised on appeal shall be upon the party appealing from such rules, regulations, orders, or decisions. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 10 — 201(d).) When the sufficiency of the evidence to support an order of the Commission is questioned, the order will not be set aside unless it is clearly against the manifest weight of the evidence. (City of Hurst, 120 Ill. App. 3d at 360, 458 N.E.2d at 572.) In reviewing an administrative decision, the reviewing court is not authorized to reweigh the evidence or to substitute its judgment for that of the agency. Okino v. Department of Corrections (1980), 84 Ill. App. 3d 1084, 405 N.E.2d 1369.

The cities have failed to prove the Commission’s decision finding the fees should be recaptured only from municipal customers is unreasonable, in clear violation of a rule of law, or against the manifest weight of the evidence. Though the testimony presented before the' Commission was contradictory on this issue, the Commission’s order reflected it considered both sides, and its finding of facts and resulting order are not unreasonable.

Staff witness Thomas Stack recommended the fees should be recovered from customers within the city because the fees benefited the municipality imposing the fees. Stack further stated it was neither fair nor equitable to customers located outside the municipality to be forced to pay such fees through their utility rates. Stack cited the current Union Electric Company rates approved by the Commission in “Dockets 80 — 0368 and 80 — 0370” in support of his contention. There, compensation owing from the company to the municipality for the right to use the streets for the transmission and distribution of electric energy was ordered to be recovered from the municipality customers only.

The cities contend customers outside the municipality are benefiting through the receipt of services and, accordingly, should share in the payment of the fees. Similar arguments were rejected in City of Elmhurst v. Western United Gas & Electric Co. (1936), 363 Ill. 144, 1 N.E.2d 489, and in Village of Maywood v. Illinois Commerce Comm’n (1961), 23 Ill. 2d 447, 178 N.E.2d 345. In City of Elmhurst, the City of Elmhurst filed a complaint with the ICC challenging a new rate schedule for gas service. The schedule authorized the gas company to add to its uniform charges for gas service a percentage differential sufficient to meet the annual payment which the company was required to pay to the City of Elmhurst pursuant to its franchise ordinance. Nonmunicipal customers within the same service territory were not responsible for the additional percentage. In the Village of Maywood, the Village of Maywood challenged a proposed rate change Northern Illinois Gas Company had filed with the ICC. The proposed rate change granted a 3% increase in gas rates for consumers in the village. The increase was requested to reimburse the company for the expense of franchise payments required to be made to the village. In both cases, the Illinois Supreme Court held that as the cities were deriving the benefit of the payments, the recapture of the payments from the consumers in those communities was proper. City of Elmhurst, 363 Ill. at 147, 1 N.E.2d at 491; Village of Maywood, 23 Ill. 2d at 450-51, 178 N.E.2d at 347.

Similarly, we find the benefit to be focused on here is the benefit of compensation from NIWC to the cities and not the benefit of receiving this service. The Commission’s decision finding the fees should be recaptured only from municipal customers is reasonable.

Furthermore, we are not persuaded the Commission erred in ordering the fees be line itemized. The cities contend the Commission is without authority to require line itemization as it is their contention line itemization can only be ordered when specifically authorized by the Public Utilities Act (Act) (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1— 101 et seq.).

The provisions of the Act which specifically require line itemization of a utility’s expenses are sections 9 — 221, 9 — 222, and 9 — 223. (Ill. Rev. Stat. 1989, ch. 1112/3, pars. 9 — 221, 9 — 222, 9 — 223.) Sections 9 — 221 and 9 — 222 discuss the utility’s ability to recover tax payments. The provisions mandate the rate component which recovers the taxes be provided on customers’ bills as separate line items. Section 9 — 223 addresses the utility’s cost incurred by providing services for fire protection. Charges which recover these costs are to be shown as separate items on the customers’ bills. The cities contend that unless the fee in question was imposed as a tax, it does not fall under any of these provisions.

Initially, we note the final order appealed from made no conclusive finding the fees were a tax. No rationale was given for the Commission’s deletion of the phrase “hidden tax” from the hearing examiner’s proposed order. The deletion may have been simply stylistic choice, and we cannot attempt to determine the Commission’s thoughts on this matter. Furthermore, the statutes cited by the cities do not preclude the Commission from ordering line itemization in other circumstances. The cities’ argument is based upon an unjustifiably narrow interpretation of the regulatory authority granted to the Commission in the Act. The legislature has granted broad discretionary powers to the Commission regarding regulation of public utilities. (Alton Water Co. v. Illinois Commerce Comm’n (1978), 60 Ill. App. 3d 553, 377 N.E.2d 385.) The Commission’s actions here are not beyond these discretionary powers.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICK STREBIN, Defendant-Appellant.
    Fourth District
    No. 4-90-0389
    Opinion filed February 26, 1991.

      Daniel D. Yuhas and Lori L. Mo shy, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Patrick Strebin, pleaded guilty in July 1989 to aggravated battery of a child (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4.3) in return for the dismissal of a second charge pending against him, aggravated criminal sexual abuse, and the State’s agreement that defendant would receive a sentence of probation. At the sentencing hearing in February 1990, defendant was sentenced to 48 months’ probation, subject to various conditions, including that he serve 24 months of periodic imprisonment and pay restitution. On appeal, defendant challenges the appropriateness of these probationary conditions.

The factual basis for defendant’s guilty plea is as follows. In July 1987, defendant baby-sat the victim, 27-month-old S.C., and S.C.’s four-year-old brother, K.C. When S.C.’s parents returned home, they discovered an injury to the area of S.C.’s penis and scrotum. Doctors examining S.C. shortly thereafter opined that the injury was caused either by striking and pinching or some type of excessive and repeated masturbation. K.C. would have testified that when defendant baby-sat for him and S.C., defendant would discipline the boys for wetting or messing their pants by squeezing their penises. Defendant also made a statement to the police in which he admitted he spanked S.C. in the groin.

Attached to the presentence investigation report were two letters documenting that S.C. and his family received counseling after the incident. From September 1987 through September 1988, S.C. received $1,609.43 worth of counseling from Catholic Social Services, paid for by the Illinois Department of Children and Family Services. From September 1988 through July 1989, the Warren County, Indiana, Department of Public Welfare provided $3,332.83 worth of counseling to S.C. and his family. The family paid for none of this counseling.

Defendant first argues, on appeal, that the condition of his probation that he serve 24 months of periodic imprisonment is improper because, prior to the date of his sentencing in February 1990, the legislature amended section 5 — 7—1(d) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 7—1(d)) to restrict sentences of periodic imprisonment to a term no longer than one year, “if [defendant] is committed to a county correctional institution or facility, and in conjunction with that sentence participate^] in a county work release program comparable to the work and day release program provided for in Article 13 of the [Code] in state facilities.” The State does not dispute that defendant’s sentence of periodic imprisonment as a condition of his probation falls within the definition of a “county work release program” as described in the above section. Instead, the State argues that because defendant’s crime was committed in July 1987, long before the enactment of Public Act 86 — 328 (Pub. Act 86 — 328, eff. Jan. 1, 1990 (1989 Ill. Laws 2276)) that added the above language to section 5 — 7—1(d) of the Code, the amendatory language restricting a sentence of periodic imprisonment to 12 months should not apply to defendant. We disagree.

In People v. Hollins (1972), 51 Ill. 2d 68, 280 N.E.2d 710, the supreme court considered the effect changes in sentencing provisions should have and wrote the following

“Petitioner *** was entitled to be sentenced under either the law in effect at the time the offense was committed or that in effect at the time of sentencing [citation], and the record fails to show that he was advised of his right to, or permitted to, make the choice. *** [W]e hold that in the absence of a showing that he was advised of his right to elect under which statute he should be sentenced, and an express waiver of that right, petitioner was denied due process of law.” (Hollins, 51 Ill. 2d at 71, 280 N.E.2d at 712.)

The State argues that defendant has waived the issue that his term of periodic imprisonment is impermissibly lengthy because of his failure to raise that issue at the trial level. However, we find that Hollins places an affirmative duty on the trial court to advise a defendant of his right to elect under which sentencing procedures defendant should be sentenced, namely, those in effect at the time the offense was committed or those in effect at the time of the sentencing hearing. Because no such advice was given in the present case, defendant cannot be found to have waived this argument on appeal. See People v. Anderson (1981), 93 Ill. App. 3d 646, 656, 417 N.E.2d 663, 670-71.

As a condition of defendant’s probation, the court entered the following order of restitution:

“The defendant shall pay restitution in this matter. His bond [of $5,000 cash posted] shall first be applied to the costs of current counseling for the victim and his family. After completion of current counseling needs, there will be a pro rata share to other agencies that have already provided counseling. Restitution set in the amount of $3,332.83 and $1,609.43 but only if available and within the defendant’s means to pay.”

Defendant filed a motion to reconsider the order of restitution, arguing that it was improper because (1) defendant was ordered to pay for counseling services that have been paid for by governmental agencies, (2) defendant was ordered to pay the counseling costs for the parents of the victim as well as the victim, and (3) the court directed some portion of defendant’s cash bond deposit to be applied to future counseling for the victim and his parents. The motion was denied, and defendant raises the same arguments on appeal.

In People v. Cole (1990), 193 Ill. App. 3d 990, 550 N.E.2d 723, defendant was ordered to pay restitution for counseling for the victim of the aggravated criminal sexual abuse of which defendant in Cole was convicted. Counseling was expected to take from three to six months and, at the time of the sentencing hearing, was listed in the presentence report as an “anticipated expense” of $400 to $500. (Cole, 193 Ill. App. 3d at 996, 550 N.E.2d at 727.) Over defendant’s objection that restitution could be based on expenses not yet incurred by the victim, the trial court ordered the circuit clerk to withhold $500 of defendant’s bond money so that it could be applied to the costs of counseling. (Cole, 193 Ill. App. 3d at 996, 550 N.E.2d at 727.) Although the court indicated that if the counseling cost less than $500, the money would be refunded to defendant, no time frame was fixed in Cole for determining if and when a refund should be made. (Cole, 193 Ill. App. 3d at 996, 550 N.E.2d at 727.) On these facts, this court wrote the following:

“We conclude that the statutory provision on restitution (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—6(g)) permits an order of restitution for prospective counseling expenses in sex abuse cases. In order to provide for the finality of a sentence, however, such an order should incorporate provisions specifying the following: (1) a maximum dollar limit; (2) a time frame for counseling and proof of expenses incurred, e.g., within one year of sentencing, or the term of probation where probation is imposed; (3) that the court services department or probation office monitor and administer the payment of restitution; (4) in the event that a dispute develops, that either party may petition the court for resolution thereof; and (5) when bond money is being withheld for use for restitution, a date when any bond monies not so used will be remitted to defendant. On the facts of this case, this matter of restitution can easily be resolved by the trial court on remand, in accordance with the directions we have now provided.” (Cole, 193 Ill. App. 3d at 996, 550 N.E.2d at 727-28.)

Because the order of restitution in the present case is deficient, we find that this case must be remanded back to the trial court so that court can enter an order of restitution in conformance with the Cole requirements.

The trial court on remand will be confronted with the same arguments regarding restitution that defendant has raised in this court if the trial court decides to impose a similar order of restitution. Therefore, we will address those arguments.

Defendant first argues that section 5 — 5—6 of the Code, governing restitution, did not permit trial courts to order restitution for psychological counseling for victims until subsection (g) was added to that section by Public Act 85 — 1194, effective August 19, 1988. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(g).) Defendant argues that because section 5 — 5—6(g) of the Code was enacted after the date on which the offense of which he was convicted occurred, that section cannot apply to him. The subsection in question reads as follows:

“(g) The court shall, after determining that the defendant has the ability to pay, require the defendant to pay for the victim’s counseling services if:
(1) the defendant was convicted of an offense under Sections 11-19.2, 11-20.1, 12-13, 12-14, 12-15 or 12-16 of the Criminal Code of 1961, as amended, or was charged with such an offense and the charge was reduced to another charge as a result of a plea agreement under subsection (d) of this Section, and
(2) the victim was under 18 years of age at the time the offense was committed and requires counseling as a result of the offense.
Such payments shall be made by the defendant to the clerk of the circuit court and transmitted by the clerk to the appropriate person or agency as directed by the court. The order may require such payments to be made for a period not to exceed 5 years after sentencing.” Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(g).

Defendant argues that prior to the enactment of the above subsection, the trial court had no authority to order restitution for psychological counseling. In support of this argument, defendant claims that if section 5 — 5—6 of the Code is interpreted as providing such authority prior to the enactment of subsection (g) above, then that subsection would be extraneous. We disagree.

Public Act 83 — 1061, effective July 1, 1984, amended section 5— 5 — 6 of the Code by adding thereto, as a new subsection (b), the following:

“(b) In fixing the amount of restitution to be paid in cash, the court shall allow credit for property returned in kind, for property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant; and after granting such credit, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant, and insurance carriers who have indemnified the named victim or other victims for such out-of-pocket expenses, losses, damages, or injuries, provided that in no event shall restitution be ordered to be paid on account of pain and suffering.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-6(b).)

The above language of section 5 — 5—6(b) of the Code has not been changed since 1984, although some additional language has been added to that subsection to specify action the court may take if a defendant fails to pay restitution. (See Pub. Act 85 — 840, eff. Jan. 1, 1988 (1987 Ill. Laws 3476).) We view Public Act 83 — 1061 (Pub. Act 83 — 1061, eff. July 1, 1984 (1983 Ill. Laws 7226)) as a comprehensive change in the law governing restitution, reflective of an intention by the Illinois General Assembly, in every criminal case where possible, to achieve two goals: (1) to make victims whole for any injury received at the hands of the criminal to be sentenced; and (2) to make criminals pay all of the costs which arise as a result of injuries the victims suffered. Clearly, an order of restitution for psychological counseling for the victim and the victim’s family, necessitated as a result of defendant’s criminal conduct, is fully consistent with both of these goals.

Further, we reject defendant’s argument that this interpretation renders subsection (g) of section 5 — 5—6 of the Code extraneous. On its face, that subsection is different from the rest of section 5 — 5—6 of the Code because subsection (g) states that, “The court shall, after determining that the defendant has the ability to pay, require the defendant to pay for the victim’s counseling services if [enumerating circumstances and procedures].” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(g).) On the other hand, the introductory paragraph to section 5 — 5—6 of the Code reads as follows:

“In all *** cases [other than certain offenses involving persons 65 years of age or older] the court shall at the sentencing hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate the offender may be sentenced to make restitution ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-6.)

Thus, section 5 — 5—6(g) of the Code makes an order of restitution mandatory if the criteria under that section are met. In all other instances (except certain offenses involving victims 65 years of age or older), the entry of an order of restitution is discretionary.

Consistent with the broad interpretation that we find the legislature intended the courts to give to section 5 — 5—6 of the Code when deciding whether to order restitution, we hold that the phrase “injuries suffered by the victim,” as used in section 5 — 5—6(b), includes psychological or emotional trauma. (See People v. Ehrich (1988), 165 Ill. App. 3d 1060, 1071-72, 519 N.E.2d 1137, 1144.) Accordingly, we hold that restitution may be ordered under section 5 — 5—6(b) of the Code for psychological counseling for victims. To the extent that People v. Foster (1990), 195 Ill. App. 3d 926, 955-56, 552 N.E.2d 1112, 1133, a decision of the Fifth District Appellate Court, is inconsistent with these views, we decline to follow it. Instead, we adhere to the holding in People v. Nash (1989), 183 Ill. App. 3d 924, 930-31, 539 N.E.2d 822, 825-26, in which this court affirmed an order of restitution to pay the costs of any counseling the victim and her family might require in a case in which defendant was convicted of indecent solicitation of a child (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 6).

Consistent with the views expressed in Nash, we hold that the term “victim” as used in section 5 — 5—6(b) of the Code should be given an expansive definition in order to include either the victim’s family, as in Nash, or the agencies providing counseling services, as in the present case. If a defendant may be ordered to pay restitution to a victim who (by way of example) has paid $1,000 for counseling services, we fail to see why a court should not be permitted to order a defendant to pay the same $1,000 for the same counseling services that were provided to the victim without cost to her because she is indigent. Someone is paying the costs of that counseling, which was necessitated as a result of the defendant’s criminal behavior, and whoever that “someone” is, whether the victim herself, her family, a friend, or some private or governmental agency, the defendant should still be made to pay the costs of that counseling. To hold otherwise would render the victim’s indigence a fortuitous occurrence for the defendant, freeing him of a financial obligation that he should rightly bear.

We are also aware that in cases like the present one, when counseling services are being provided by the Illinois Department of Children and Family Services or the Department of Public Welfare of Warren County, Indiana, the financial resources of such agencies are often limited and may be inadequate to meet the demand for services like those provided in the present case. In our judgment, ordering a defendant to pay restitution to such agencies is clearly consistent with the legislative purpose behind section 5 — 5—6(b) of the Code. See People v. Duff (1987), 152 Ill. App. 3d 896, 897-98, 505 N.E.2d 36, 37 (defendant properly ordered to pay restitution directly to hospital that had provided medical services to a victim of defendant’s aggravated battery even though record is unclear whether victim could pay that bill or had even been billed).

Defendant also argues that an expansive reading of the term “victim” for purposes of restitution would be inconsistent with People v. Gaytan (1989), 186 Ill. App. 3d 919, 542 N.E.2d 1163, and People v. Chaney (1989), 188 Ill. App. 3d 334, 544 N.E.2d 90, which held restitution inappropriate for public monies expended in the pursuit of solving crimes. (Gaytan, 186 Ill. App. 3d at 929, 542 N.E.2d at 1171; Chaney, 188 Ill. App. 3d at 335, 544 N.E.2d at 91.) We disagree. The governmental agencies which were the beneficiaries of the restitution order in the present case did not track down, prosecute, or incarcerate defendant; instead, they provided services for the indigent victims of defendant’s criminal conduct, and there is no just reason why they should not be compensated by the defendant for doing so.

For the reasons stated, the orders entered by the trial court as conditions of probation regarding both periodic imprisonment and restitution are reversed, and the cause is remanded for further proceedings in accordance with the views expressed herein.

Reversed and remanded.

SPITZ and GREEN, JJ., concur.


author: PRESIDING JUSTICE LUND JUSTICE KNECHT,

text:
    THE PEOPLE ex rel. MECHELLE MEYER, Petitioner-Appellant, v. LARRY NEIN, Respondent-Appellee (The Department of Public Aid, Intervening Petitioner-Appellant).
    Fourth District
    No. 4-90-0459
    Opinion filed February 28, 1991.
    KNECHT, J., specially concurring.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys appellate Prosecutor’s Office, of counsel), for appellant Illinois Department of Public Aid.

      Thomas R. Appleton and Elizabeth W. Anderson, both of Morse, Giganti & Appleton, of Springfield, for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

The question in this case is whether a trial court can reduce child support payments because the obligor has been incarcerated and, as a result, has lost his income for conduct unrelated to the dissolution action. We find no authority in Illinois case law, but conclude the trial court has such authority.

Respondent Larry Nein was ordered to pay child support by an order entered subsequent to the dissolution judgment. He was subsequently sentenced to jail for several months, and he petitioned for modification of the payments. At the time of the petition, he was in arrears in support payments. The child support payments were suspended by the trial court for the period of incarceration. The Illinois Department of Public Aid (Department), intervener, appeals.

A petition to modify child support (Ill. Rev. Stat. 1989, ch. 40, par. 510) must be decided on the facts of each case, and the decision rests within the sound discretion of the trial court. See In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 330, 547 N.E.2d 749, 751.

The Department would have us say that one convicted of any offense lacks clean hands, and that person should never be able to seek a modification of child support payments due to the resulting incarceration by using the equitable powers of the court. Our supreme court has stated:

“The maxim of coming into court with clean hands does not go so far as to prohibit a court of equity from giving its aid to a bad or faithless man or a criminal. The misconduct must be in the transaction complained of. If one is not guilty of inequitable conduct toward the defendant in the transaction in litigation his hands are as clean as the court can require.” Korziuk v. Korziuk (1958), 13 Ill. 2d 238, 243, 148 N.E.2d 727, 730.

We decline to adopt the position advanced by the State. What happens when one without assets, paying child support for a young child, is incarcerated ■ for 10 or more years? The State relies on Ohler v. Ohler (1985), 220 Neb. 272, 369 N.W.2d 615. There, the court affirmed dismissal of a petition to modify for failure to state a cause of action, although the movant was sentenced to 15 years’ incarceration and had no other assets. Having considered all of the authorities from other States, we agree with the Pennsylvania court, which compared incarceration to an involuntary loss of employment (Leasure v. Leasure (1988), 378 Pa. Super. 613, 616, 549 A.2d 225, 227; accord Peters v. Peters (Ohio Ct. App. 1990), 69 Ohio App. 3d 275, 276, 590 N.E.2d 777,); we also agree, however, that incarceration, as a foreseeable result of criminal activity, does not ipso facto relieve one of the obligation to pay child support (Division of Child Support Enforcement ex rel. Harper v. Barrows (Del. 1990), 570 A.2d 1180, 1183 (and cases cited therein)). Decisions on modification, when questions of this type appear, are best left to the discretion of the trial court. This view is consistent with the decisions of the courts of other States, apart from the decision in Ohler; and the exercise of that discretion has generally been guided by principles summarized in Barrows:

“We have found no jurisdiction which currently suspends or discharges child support obligations if an affirmative showing has been made that an incarcerated support obligor has available assets.

In this case, we have only the common law record before us and no transcripts of or bystander’s reports (107 Ill. 2d R. 323(c)) on hearings held. Deficiencies in the record must be resolved against the appellant. On the basis of this record, we conclude the trial court’s decision was not against the manifest weight of the evidence.

Affirmed:

GREEN, J., concurs.

JUSTICE KNECHT,

specially concurring:

I agree with the result reached by the majority. Such decisions rest within the sound discretion of the trial court, and must be decided on the facts of each case. The State contends one convicted of any offense resulting in incarceration should never be able to seek a modification. This position can, of course, be asserted without a transcript or bystander’s report; however, we have no transcript or bystander’s report to evaluate the use of discretion by the trial court. This deficiency in the record must be resolved against the appellant. Yet, I am concerned with whether this trial court used its discretion.

This respondent did not pay his child support payments when he was not incarcerated. Respondent was in arrears on his child support obligations prior to any incarceration. The majority opinion makes no reference to the criminal charge underlying respondent’s incarceration. Respondent was incarcerated for a period of seven months upon a negotiated plea to a felony drug charge.

Respondent apparently had sufficient assets to purchase controlled substances, yet he did not have sufficient funds to pay child support. Respondent did not have clean hands and his misconduct did occur in the transaction complained of — he chose to use his assets for illegal purposes rather than paying child support. It is pitiful he should seek to be rewarded for his crime by having his child support obligation suspended for the period of his incarceration.

Perhaps the arrearage which would accumulate during incarceration if not suspended would place a heavy burden on respondent. So what? What about the burden on the taxpayer who supports respondent while he is incarcerated, and supports respondent’s child as well? What about the burden on society of a respondent who acknowledges child support obligations only when haled into court by the Department of Public Aid, and then falls in arrears perhaps because his interest in controlled substances exceeds his interest in employment or meeting his obligations? Respondent’s child support obligation is only $100 per month. His seven months’ incarceration would result in an additional arrearage, if not suspended, of $700. This is not an impossible burden, nor is it impractical to believe an employed respondent who shouldered his responsibilities could pay this debt and meet his other obligations.

Respondent’s incarceration should not be an automatic pass. Trial courts need not automatically grant modifications such as the one here simply because of incarceration. An evidentiary hearing should be held which focuses on assets, work release, the length of incarceration, and whether a respondent used assets for illegal activity instead of paying child support.

      See Clemans v. Collins, 679 P.2d 1041, 1042 (Alaska 1984) (court remanded to decide if incarcerated, obligated parent has available assets to meet child support payments); In re Marriage of Vetternack, 334 N.W.2d 761, 763 (Iowa 1983) (equity in home reduced to pay support obligation); Noddin v. Noddin, 455 A.2d at 1053 (child support should not be reduced ‘where his own conduct has resulted in his loss of high-earning employment and he has at least one valuable asset’); Pierce v. Pierce, 162 Mich. App. 367, 412 N.W.2d 291, 293 (1987) (assets may be applied to meet child support obligation during incarceration); Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867, 869 (1984) (incarcerated parent not liable for child support unless it is affirmatively shown that assets are available, but that it would be inequitable to force the wife/mother to sell the home to meet the father’s obligation); Edmonds and Edmonds, 53 Or. App. 539, 633 P.2d 4, 5 (1981) (no liability without affirmative showing of assets); Leasure v. Leasure, 549 A.2d at 227 (no obligation for incarcerated parent to pay child support ‘unless that parent possesses another asset from which funds could be generated.’). Two jurisdictions have continued a prior support obligation even when no assets are available. See Ohler v. Ohler, 369 N.W.2d at 618 (incarcerated parent comes to equitable divorce and support hearing with ‘unclean hands’). *** All jurisdictions agree that if the obligor entered prison for non-payment of child support or to deliberately avoid the support obligation, no reduction or discharge will be permitted and the arrearages will simply increase regardless of whether assets are available. See, e.g., Foster v. Foster, 471 N.Y.S.2d at 869; Edmonds and Edmonds, 633 P.2d at 6; Leasure v. Leasure, 549 A.2d at 227.” Barrows, 570 A.2d at 1183 & n.8.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TRACY SMITH, Defendant-Appellant.
    Fourth District
    No. 4-90-0449
    Opinion filed February 26, 1991.

      Daniel D. Yuhas and Judith L. Libby, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Beth McCann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Tracy Smith was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a)) and burglary to a truck (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) by the Adams County circuit court on April 26, 1990. Defendant contends the building he burglarized was not a “dwelling” within the meaning of the residential burglary statute and thus seeks to have his conviction reversed. Defendant does not appeal his conviction for burglary to a truck. We affirm the trial court.

Arthur Vahlkamp owns a vacation home, commonly called a “camp,” located on North Bottoms Road, which parallels the Mississippi River. This camp is in Adams County, Illinois. The camp consists of two bedrooms, a bathroom, a storage room, a living room, and a kitchen. It has heating and air conditioning and also has telephone service throughout the year. Vahlkamp spends 95% of his time there during the summer. During the spring and fall, he stays there about 50% of the time and during the winter he goes there to check on things and only spends time there weather permitting. Vahlkamp’s children spend time there, as do his brother and his cousin.

On January 10, 1990, defendant, along with C.J. Stinnett and Michael Totsch, entered this camp through the front door — which was open due to a previous burglary by Stinnett. Stinnett testified at the trial that he participated in the burglary of January 10, but did not take any property. Stinnett testified that Totsch took a drill and some tools as well as a cordless telephone and that defendant took a Coleman lantern and five or six pocketknives. Defendant gave a statement to the police that he actually did not go into the building but that he waited outside and took the lantern off a pole. The lantern was recovered from the defendant’s mother at her house. She stated she bought the lantern for' $25 from some kids in a green pickup truck in late January or early February.

Prior to the January 10 burglary, Vahlkamp had last checked his camp sometime between Christmas Day and New Year’s Day. He did not check on the camp until the police reported to him that it had been broken into. Vahlkamp stated that he had moved out for the winter season sometime in early November 1989. Furthermore, at the time of the trial, April 26, 1990, Vahlkamp had begun to move back into the camp for the summer.

Defendant was convicted of residential burglary. He filed a timely notice of appeal and now contends his conviction should be reversed because the camp was not a “dwelling” within the meaning of the residential burglary statute.

Section 2 — 6(b) of the Criminal Code of 1961 (Code) provides:

“(b) For the purposes of Section 19 — 3 of this Code, ‘dwelling’ means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 6(b).)

Section 19 — 3 of the Code provides:

“(a) A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3(a).

Defendant contends this court should reconsider its position in People v. Benge (1990), 196 Ill. App. 3d 56, 552 N.E.2d 1264, based on the Illinois Supreme Court’s decision in People v. Thomas (1990), 137 Ill. 2d 500, 561 N.E.2d 57. We decline to do so.

The facts in Benge are amazingly similar to those in the present case. There, defendant was convicted of residential burglary. Defendant broke into a cabin located on the same road as the camp in the present case and took several items, including a Coleman lantern and a Coleman cook stove. Although the building in Benge was referred to as a cabin and the building here was called a camp, it appears that they are similar structures.

The defendant in Benge argued that the cabin into which he entered was not a “dwelling” within the meaning of the residential burglary statute. Defendant argued that since the cabin was only used on weekends by the owner and the owner was not actually residing there at the time of the incident, the cabin was not a “dwelling” for purposes of the statute.

This court rejected defendant’s argument, holding that such a cabin was a “dwelling” within the meaning of section 2 — -6(b) of the Code. (Benge, 196 Ill. App. 3d at 58, 552 N.E.2d at 1265.) This court based its holding on the circuit court’s conclusion that this building was a “dwelling,” as well as on the legislative history of section 2— 6(b) of the Code.

The Illinois Supreme Court held in Thomas that an attached garage is not necessarily a “dwelling” within the meaning of the residential burglary statute. (Thomas, 137 Ill. 2d at 519, 561 N.E.2d at 64.) In that case, defendant was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1), aggravated arson (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1.1), arson (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1(a)), and burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 1(a)). There, defendant entered the garage of the victim in order to steal perfume which she had stored in this garage. Defendant had a bottle of perfume in his hand, which he dropped when the victim entered the garage. Defendant attempted to flee the garage but the victim grabbed his shirt and began screaming. Defendant then took a knife from his pocket and repeatedly stabbed the victim, severing her spinal cord and killing her instantly. Defendant then set fire to.the garage, hoping to conceal this murder.

With respect to the burglary charge, defendant contended the evidence established he committed, if anything at all, burglary and not residential burglary. Thus, defendant argued he was improperly charged and convicted. However, the court rejected this argument.

The court stated it had previously defined a “dwelling” as a structure “that is ‘used by another as a residence or living quarters in which the owners or occupants actually reside.’ ” (Thomas, 137 Ill. 2d at 519, 561 N.E.2d at 64, quoting People v. Bales (1985), 108 Ill. 2d 182, 483 N.E.2d 517.) This definition was later used by the legislature when amending the Code and adding subsection (b) to section 2 — 6 of the Code. The court stated the garage, regardless if it was attached or unattached, could not be said to be a residence or living quarters. Thus, the proper charge to be brought against defendant was burglary, rather than residential .burglary.

The court distinguished a case decided by this court in which we held that an attached garage is a “dwelling” for purposes of the residential burglary statute. (People v. Dawson (1983), 116 Ill. App. 3d 672, 452 N.E.2d 385.) It noted that Dawson was decided prior to the amendment of the statute defining “dwelling,” as well as prior to the court’s decision in Bales. Thus, the court stated its decision (in Thomas) was not necessarily inconsistent with the reasoning in Dawson.

We fail to see how Thomas changes our position in Benge that a cabin or camp such as the one in the present case is a “dwelling” for purposes of the residential burglary statute.

First, the building in Thomas was vastly different than the buildings in the present case and in Benge. Certainly, an attached garage used as a storage facility cannot be said to be “living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 6(b).) There is no evidence whatsoever to indicate the victim in Thomas actually ever lived in the garage or ever intended to live in the garage.

On the contrary, in the present case, ample evidence existed to demonstrate that Vahlkamp resided and intended to reside again in this camp. This camp had five rooms, heat, air conditioning, and telephone service throughout the year. During the summer, Vahlkamp’s family stayed there together as a familial unit. Clearly, this is the type of structure intended to be a “dwelling” as defined by the legislature. The supreme court’s decision in Thomas in no way addresses the issue of whether a camp or cabin, such as the one in the present case and in Benge, is a “dwelling” within the meaning of the statute. Thus, it presents no basis for altering our position in Benge that this type of structure is a “dwelling” for purposes of section 2 — 6(b) of the Code.

Defendant places a heavy emphasis on the fact that the burglary took place during the winter months when Vahlkamp did not stay at the camp on a regular basis. Defendant argues this fact distinguishes the present case from Benge, in which the burglary occurred at a time when the owner was residing there on the weekends. Defendant’s counsel stated at the sentencing hearing, when arguing his motion for judgment n.o.v. in attempting to distinguish Benge, “the only difference, and I think it’s a major difference, and perhaps a fatal difference here, is the time that the entry took place and the nature of the supposed dwelling at that point in time of the entry.”

We decline to draw such a distinction. The fact that defendant chose to burglarize the camp during January and the defendant in Benge did so in October is merely a fortuitous circumstance. This timing difference is insignificant to persuade us to alter our position in Benge. We cannot change what structures are encompassed by the definition of “dwelling” because of the month in which the offense occurred. To do so would obviously create havoc. The key inquiry is the intent of the owner to reside in the building within a reasonable period of time after his absence. As was noted in Benge, the statement of Senator Sangmeister indicated that the legislature intended to include vacation .homes when redefining dwelling. (Benge, 196 Ill. App. 3d at 58, 552 N.E.2d at 1265, citing 84th Ill. Gen. Assem., Senate Proceedings, June 18, 1986, at 66 (statements of Senator Sangmeister).) In this case, Vahlkamp clearly intended to reside in his camp as soon as the weather permitted.

Therefore, we find the Illinois Supreme Court’s decision in Thomas does not change our position in Benge that a cabin or camp of this nature is a “dwelling” within the meaning of section 2 — 6(b) of the Code. Defendant’s convictions for residential burglary and burglary to a truck are affirmed.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DARWIN SULLIVAN, Defendant-Appellee.
    Fourth District
    No. 4-90-0457
    Opinion filed February 28, 1991.

      Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Darwin Sullivan was charged with four counts of first-degree murder and one count of aggravated battery. The trial court granted defendant’s motion to suppress oral statements given to the Springfield police on January 3, 1990. The State appeals the suppression order, arguing defendant’s Miranda rights were not violated because police officers ceased interrogating defendant after he requested an attorney. We affirm.

The following facts are undisputed. Defendant, 18 years old on January 3, 1990, turned himself in to the Springfield police on January 3 after hearing he was a suspect in the murder of Michael Dent on January 1, 1990. Defendant arrived at the police station with his mother and a family friend, Adrian Dotts. Defendant, his mother, and Dotts were escorted to the office of Detective Mann. Detective Nataie of the Springfield police department joined Mann in his office. There, Mann advised defendant of his Miranda rights. Defendant stated he understood his rights. Before defendant said anything else, Mann began to ask defendant questions about the murder of Dent. Before defendant responded to Mann’s questions, defendant’s mother and Dotts stated defendant wanted a lawyer present during questioning. Defendant then stated he wanted a lawyer present during questioning. Mann discontinued the questions and stated defendant would be transported to the Sangamon County jail. Defendant’s mother and Dotts stated they and defendant were treated well by the officers and the atmosphere was calm and not intimidating. Defendant was upset while at the station and he cried at times. Defendant’s mother and Dotts left the station before defendant was transported to the jail. Defendant was finally transported to the jail IV2 hours after defendant’s mother and Dotts left the station.

The parties dispute the events which occurred before defendant was transported to the jail and while he was at the police station. Detective. Natale testified there was a delay in the arrival of the transport vehicle for defendant. While waiting for the vehicle in Mann’s office, Natale began to talk to defendant about Harvard Park School, a school for troubled children where defendant was enrolled when he was younger. Na-tale did not ask defendant any questions about the murder of Dent.

Natale testified.defendant made several statements in the following order and these statements were written down verbatim and included in Natale’s report:

“I was laying down. I had no reason to kill that boy. I never talked to him. I knew him but not as a friend. If I get out of this, I am going straight. I didn’t come to the party to see Michael. I came looking for Cheek.”

Natale reported no comments or questions were directed to defendant before and after any of the above statements. Natale stated defendant then said he turned himself in to the police because he was afraid his mother’s house would be shot up. Defendant then stated, “I am a vice lord,” and Natale asked him what that statement was in reference to. Defendant then stated the following:

“The boy was bleeding heavily. All I got on my mind is the murder. I can’t eat or sleep. When I am sentenced to twenty or thirty years I am going to cry hard. I just wish I could rewind this and do it over. I can only turn to God now.”

Natale again stated no questions or comments were directed to the defendant before or after any of the above statements.

After defendant’s last statement, Natale asked defendant if it had been awhile since he had been to church. Defendant then stated he wanted to be thrown in jail and:

“I have a temper and people come up to me and I look at them and I know that they are thinking — what they are thinking, and they whisper about me and I start to fight with them. I have a temper.”

On cross-examination, Natale stated a few comments were made in the 20 minutes before defendant made his first statement. Natale reported there was a lot of time when nothing was said at all. Natale and/ or Mann stayed with defendant the entire time before he was transported to the jail. Natale and Mann talked between themselves at times, and Mann dictated a report over the phone about the defendant. Natale testified he did comment to defendant about his tattoo. Natale did not recall there being any photographs on Mann’s desk. Natale did not tell defendant he was writing down his statements or that the statements could be used against him.

Detective Mann testified he expected the transport of defendant to the county jail would take only 15 to 20 minutes. While waiting, Mann stated he did not ask defendant any questions regarding the case. Mann recalled commenting to defendant that he (Mann) had stopped at defendant’s mother’s house the night before to discuss the warrant issued for defendant’s arrest. Mann told defendant his mother was a nice and good person. Mann started to ask defendant some booking questions before Natale mentioned Harvard Park School to the defendant. Mann testified no questions or comments were made to defendant as he made his statements. Mann stated Natale’s report, setting forth all of defendant’s statements, was accurate. Mann recalled defendant said something to himself that he would be okay according to the rules of the Vice Lords. Mann stated he called the county jail in defendant’s presence to ask for isolation as defendant requested. Mann recalled defendant was emotionally distraught and crying while he was in his office.

On cross-examination, Mann recalled Natale remarked to the defendant that he (defendant) had come a long way since Harvard Park and it was possible the statement about Harvard Park led to the defendant’s statement about the Vice Lords. Mann recalled having photos on his desk of defendant and another man, Michael Thompson, but not when defendant was in the office. Mann did not recall saying to the defendant that his friends were not helping him. On redirect examination, Mann stated he was unhappy about the delay in transporting defendant to the jail. Mann clarified for the court that booking questions were asked after Miranda rights were given and the transport vehicle was called for and before the discussion about Harvard Park School. The information about defendant’s tattoo was elicited during the booking questions.

Defendant testified that after his mother left, Mann and Natale asked him if he knew Michael Thompson, the person in a picture on Mann’s desk. Defendant responded he knew Thompson and he asked the officers whether Thompson had been to the station. Mann responded that Thompson had just left the station with his father and stated defendant’s friends did not seem to be helping him in this case and they (the police) could not help defendant unless he helped himself. Defendant repeated he did not want to talk to the police without a lawyer. Mann arid Natale then offered defendant a candy bar and a soda.

Defendant recalled the conversations about Harvard Park and his tattoo. In response to a question as to whether any conversation took place before defendant made the statements recorded, defendant stated:

“It was sectioned out during the time I was there. I was more into myself than I was with them and little things — little questions that had come up, not — it was — like I said, it was sectioned out. He asked one thing but, you know, it’s like he was tapping around me.”

Defendant admitted the statement, “I had no reason to kill that boy” was not made in response to any question from the officers. Defendant stated Mann and Natale did not direct a question to him but they were “tapping around me.” Defendant stated the officers said to him: “You need to talk to us in order for us to clear everything up and help you out.”

On cross-examination, defendant recalled that after he said “I had no reason to kill that boy,” the officers said “[Y]ou can’t prove it to us, you have got to prove it to the jury.” Defendant denied making the statements about knowing the victim, going straight, and looking for Cheek. Defendant did not recall the statement about the victim bleeding heavily or the statement about his rights under the Vice Lords’ constitution. After defendant made his statement about why he turned himself in, defendant reported the officers told him it was a good thing he turned himself in because there were a lot of trigger-happy guys looking for him. Defendant recalled that before he said “All I got on my mind is the murder,” the officers said to him, “You are pretty upset. We can tell that you are pretty upset.” Defendant stated he did make some statements on his own but it all started with questions from the officers.

During the suppression hearing, the trial judge indicated Miranda does not allow that any questions, including booking questions, be asked of a defendant who invokes his Miranda rights. Following the hearing, the trial court granted defendant’s motion and specifically relied upon Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093, and Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the Supreme Court held that where a defendant wishes to remain silent before police officers, the interrogation must cease. Further, if a defendant indicates he wants an attorney, the interrogation must cease until the attorney is present. The Miranda Court also stated volunteered statements of any kind are not barred by the fifth amendment. (Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) In Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682, the court determined “interrogation” refers to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from a defendant.

In Edwards, the defendant requested an attorney, all questioning ceased, and he was taken to the county jail. The next morning, two detectives went to the jail to visit the defendant. Defendant again stated he did not want to talk but was told he “had” to. Defendant was advised of his Miranda rights again. He then stated he was willing to talk but first wanted to hear the taped statement of his accomplice who implicated him. Defendant then implicated himself in the crime. The Arizona State courts found defendant had voluntarily and knowingly waived his right to counsel during the meeting with police wherein he implicated himself. The Supreme Court reversed, finding the lower courts failed to consider whether the defendant’s waiver was not only voluntarily but knowingly and intelligently entered. The Court also held:

“[Wjhen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused *** having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards, 451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1884-85.)

In Roberson, the Supreme Court held the Edwards rule applies where the police-initiated interrogation following a suspect’s request for counsel occurs in the context of a separate investigation.

The State argues the trial court erred in suppressing defendant’s statements because there was no police-initiated interrogation of defendant following the invocation of his right to an attorney. Rather, the defendant volunteered his statements. The State also argues the trial judge erred in stating no booking questions may be asked after a defendant has requested an attorney.

Resolution of the issue raised by the State requires a determination of who initiated a conversation between the officers and defendant after defendant invoked his Miranda rights and before he was transported to the county jail. The evidence on this issue is disputed. According to the State’s witnesses, defendant began to voluntarily give statements after some booking questions and a statement from Detective Natale on an unrelated matter (Harvard Park). According to defendant, the officers initiated a conversation with him by asking him if he recognized a person in a photo who was reported to be related to the case. Further, while defendant admitted that some of his statements were not made in response to specific questions from the officers, he also stated the “whole thing” started with questions from the officers.

At a suppression hearing, it is the function of the trial court to determine the credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) The trial court’s determination on a motion to suppress will not be overturned unless it is manifestly erroneous. People v. Galvin (1989), 127 Ill. 2d 153, 162, 535 N.E.2d 837, 841.

We conclude the evidence supports the trial court’s order. The trial court found the defendant’s testimony was more credible than that of the State’s witnesses and concluded the police initiated an interrogation of defendant by asking him about a photograph related to the case. We will not disturb the trial court’s finding on a disputed fact. On a related matter, we note, however, that our supreme court in People v. Dalton (1982), 91 Ill. 2d 22, 434 N.E.2d 1127, held booking questions are not prohibited by Miranda.

For the foregoing reasons, the order of the trial court is affirmed.

Affirmed.

LUND, P.J., and SPITZ, J., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norvell Haynes, Defendant-Appellant.
    (No. 73-394;
    Fifth District
    June 24, 1974.

      Rehearing denied July 22, 1974.

    Hendricks & Watt, of Murphysboro and McBride, Baker, Wienke & Schlosser, of Chicago (David W. Watt, Jr. and Morgan Ordman, of counsel), for appellant.

      Lawrence C. Rippe, Assistant State’s Attorney, of Murphysboro, for the People.
   Mr. JUSTICE CREBS

dehvered the opinion of the court:

In March of 1973, defendant pleaded guEty to the crimes of criminal damage to property and assault. He was placed on probation by the Circuit Court of Jackson County. In July a petition to revoke probation was filed. Just before the hearing on this petition to revoke another petition to revoke probation was filed alleging that defendant had faded to pay his fine and court costs and to make restitution as ordered by the court. Both petitions were heard in September and defendant was found to have violated his probation and it was revoked. At a sentencing hearing in October, defendant was resentenced to a year of periodic imprisonment, with credit for 6 months’ probation already served.

On this appeal defendant claims (1) that the denial of his motion for substitution of judges was reversible error; (2) that he was denied due process of law by the failure of the State to prove the identity of the accused; and (3) that the court abused its discretion in finding he had violated his probation and in sentencing him to a term of periodic imprisonment.

Defendant’s motion for substitution of judges was filed under a claim of right. (Ill. Rev. Stat, ch. 38, sec. 114 — 5(a).) The trial court properly denied the motion as filed too late. These proceedings constituted, for this purpose, a continuation of the original charge to which defendant plead guEty in March 1973. Defendant at this stage of the proceedings may only obtain a substitution of judges on a showing of actual prejudice.

As to the question of identity, the defendant as NorveE Haynes filed the motion for substitution of judges and raised no question as to his identity in the trial court. He would thus be estopped to raise the question here. Also there is testimony in the record identifying him by name and place of employment. In addition he appeared before the same judge who had placed him on probation. We find no merit to this contention.

As to the final contention, there was clear proof that defendant violated his probation by committing another assault upon the same coworker he had originaEy assaulted. Under the circumstances of this case, there was no basis for merely continuing the defendant on probation. Periodic imprisonment was thus the mEdest penalty avaEable to the trial court. It could have been imposed for a shorter term. However, we find from the record that the offenses justify this amount of punishment. Also the trial court could reasonably find from the record that this term was necessary for purposes of rehabilitation.

Finding no error, the judgment of the Circuit Court of Jackson County is affirmed.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Schoate, Defendant-Appellant.
    (No. 71-190;
    Fifth District
    June 13, 1974.
    Robert E. Farrell, of Mt. Vernon, and James R. Streicker, of Chicago, both of the State Appellate Defender’s Office, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (John Goodwin, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM:

Defendant pled guilty to the crime of burglary in the circuit court of St. Clair County and was sentenced to a minimum of 3 years and a maximum of 5 years in the penitentiary.

The record does not show an adequate inquiry by the court into the voluntariness of the plea, pursuant to Supreme Court Rule 402(b) (Ill. Rev. Stat., ch. 110A, sec. 402(b)).

The total lack of any reference to how or if this inquiry was made requires reversal and remandment.

We therefore reverse and remand with directions to allow the appellant to plead anew if he so desires. (See People v. Horne, 21 Ill.App.3d 10.) In the event appellant chooses to not plead anew the judgment of the circuit court of St. Clair County shall be affirmed in all respects except the minimum term of the sentence which is reduced to 1 year and 8 months to comply with the Unified Code of Corrections. Ill. Rev. Stat, ch. 38, sec. 1005 — 8 — 1(c)(3).

Reversed and remanded with directions.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Hunter, Defendant-Appellant.
    (No. 73-7;
    Fifth District
    June 26, 1974.
    Robert E. Farrell, of the State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   PER CURIAM.

CARTER, J., took no part.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ollie Hammonds, Defendant-Appellant.
    (No. 73-227;
    Fifth District
    July 18, 1974.

      Robert E. Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of the State Appellate Defender’s Office, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant was convicted in the Circuit Court of Madison County of attempted murder and attempted armed robbery. He was sentenced to serve concurrent terms of 17 to 20 years for attempted murder and 3 to 6 years for attempted armed robbery. On direct appeal this court affirmed the convictions but vacated the sentences and remanded for resentencing pursuant to the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1 — 1 et seq.). People v. Hammonds, 12 Ill.App.3d 340, 297 N.E.2d 748.

On July 18, 1973, the defendant was resentenced by the Circuit Court of Madison County to concurrent terms of 8 to 17 years for attempted murder and 2 to 6 years for attempted armed robbery. The circuit court did not hold an evidentiary hearing of any type before resentencing the defendant. The court merely took cognizance of article 8 of chapter V of the Unified Code of Corrections and modified the sentences accordingly. The defendant was represented by the Public Defender at the time of the resentencing.

The defendant appeals from the resentencing order and alleges that: (1) he was not sentenced in compliance with the Unified Code of Corrections, and (2) convictions for both offenses cannot stand because both alleged offenses arose from the same conduct.

No Illinois case has been found in which the court considered the propriety of a resentencing procedure. It seems obvious, however, that the sentencing procedures of the Unified Code of Corrections should apply to a resentencing as directed by our prior opinion. In the prior opinion the court held: “* * * and remand for sentencing under the Unified Code of Corrections. Ill. Rev. Stat. ch. 38, § 1001 — 1 — 1 et seq.” 12 IIl.App.3d at 346.

The Circuit Court of Madison County failed to comply with several provisions of the Code when the defendant was resentenced. Section 5 — 3 — 1 of the Code (Ill. Rev. Stat., eh. 38, par. 1005 — 3 — 1) provides that a defendant shall not be sentenced before a written presentence report of investigation is presented to and considered by the court when the defendant is convicted of a felony. In the instant case there is no indication that a presentence report was prepared at any time, and the record does not reflect a waiver by the defendant of that report, as allowed by the Code.

The State contends that, since the original sentencing of the defendant was prior to the effective date of the Unified Code of Corrections, no presentence investigation was required. The State cited two cases for the proposition that it was not error for the court to refuse to order a presentence investigation in cases in which the defendant was sentenced before the Unified Code of Corrections became effective. (People v. Brezezinski, 15 Ill.App.3d 509, 305 N.E.2d 32; People v. Robinson, 13 Ill.App.3d 506, 301 N.E.2d 55.) In the Robinson case the court held that, even though the Code became effective while the appeal was pending, the cause did not have to be remanded for resentencing merely because a presentence investigation had not been ordered. Neither of the cases cited by the State, however, considered the issue now before the court. In both cases the appellate court considered the propriety of the sentence imposed prior to the Code — not the propriety of a resentencing imposed subsequent to the Code. When a felony conviction is remanded for resentencing, section 5 — 3 — 1 of the Unified Code of Corrections is applicable whether the original sentencing was prior to or subsequent to the effective date of the Code. The opposite holding would mean that, when a cause in which the original sentencing was prior to the Code is remanded for sentencing in compliance with the Code, it actually would be remanded for sentencing in partial compliance with the Code. Such a decision is not supported by logic and reasoning.

Section 5 — 4 — 1 of the Code provides that:

“(a) After a determination of guilt a hearing shall be held to impose the sentence. At the hearing the court shall:
(1) consider the evidence, if any, received upon the trial;
(2) consider any presentence report;
(3) consider evidence and information offered by the parties in aggravation and mitigation;
(4) hear arguments as to sentencing alternatives; and
(5) afford the defendant the opportunity to make a statement in his own behalf.”

In the instant case a sentencing hearing of the type envisioned by the above section was not held. The court did not consider any evidence introduced at the trial. There was no presentence report prepared for consideration. No evidence was offered in aggravation and mitigation, and no arguments as to sentencing alternatives were made. Finally, the court did not ask the defendant if he wished to make a statement in his own behalf.

The State infers that no sentencing report was required upon re-sentencing because a hearing in aggravation and mitigation pursuant to section 1 — 7(g) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(g)) was held prior to the original sentencing. However, the trial judge who conducted the resentencing was not tire same judge who presided at the jury trial of the defendant, which was held in October, 1970. The transcript of that proceeding wherein the defendant was found guilty by a jury has not been included in this record, and there is absolutely no indication that upon resentencing the trial judge relied upon any of the previous trial record. When a cause is remanded for resentencing, the circuit court should be required to comply with all of the sentencing provisions of the Unified Code of Corrections. Section 5 — 4 — 1 was not complied with in any respect.

The trial court also failed to comply with section 5 — 8 — 1(c)(2) of the Code, which states:

“For a Class 1 felony, the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.”

The defendant in the instant case was resentenced to a minimum term exceeding 4 years for the offense of attempted murder, a Class 1 felony. The trial court did not consider either the nature and circumstances of the offense or the history and character of the defendant prior to imposing sentence. When this court remanded the cause for resentencing, it mentioned the requirements of section 5 — 8 — 1(c)(2). Finally, the circuit court also failed to comply with section 5 — 8 — 1(c)(3). That provision states:

“For a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term * * *.”

Armed robbery is a Class 1 felony. Under the provisions of section 8— 4(c)(2) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4 (c)(2)) the sentence for an attempt to commit a Class 1 felony shall not exceed the sentence for a Class 2 felony. The defendant should not have been sentenced to a minimum term exceeding 1 year unless the court considered the nature and circumstances of the offense and the history and character of the defendant. The court did not make these considerations.

The circuit court of Madison County in resentencing the defendant failed to comply with sections 5 — 3 — 1, 5 — 4 — 1, 5 — 8 — 1(c)(2), and 5 — 8 — 1(c) (3), and therefore, the cause is remanded for resentencing in compliance with all of the provisions of the Unified Code of Corrections. The defendant also contends that the attempted-armed-robbery conviction should be reversed because both offenses arose from the same conduct. The only information tending to prove or disprove the allegation that both offenses arose from the same conduct is the short statement of facts included in this court’s earlier opinion. The defendant failed to raise the issue now presented, however, in his original direct appeal, although he could have done so. It is well settled that all issues which could have been raised on direct appeal but which were not raised are waived. (People v. Kamsler, 40 Ill.2d 532, 240 N.E.2d 590.) Of course, the waiver rule may be relaxed in the instances where fundamental fairness so requires. People v. Hamby, 39 Ill.2d 290, 235 N.E.2d 572; People v. McCarroll, 10 Ill.App.3d 249, 294 N.E.2d 52.

This is not a case in which the waiver rule should be relaxed. If the issue had been raised on the prior direct appeal, this court would have had the benefit of the entire record in determining whether both alleged offenses arose from the same conduct. Considering the issue in this proceeding, tire court must rely entirely upon its previous opinion in determining the facts of the situation. It is possible that, while the facts of the situation set out in this court’s previous opinion may suggest that both alleged offenses arose from the same conduct, there may have been additional facts revealed in the record which would alter that conclusion. Consequently, the issue concerning the propriety of separate sentences has been waived.

The judgment of the Circuit Court of Madison County is affirmed, but this cause is remanded to Madison County with directions to the circuit court to conduct a new sentencing hearing under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, sec. 1001 — 1 — 1 et seq.).

Conviction affirmed, sentences vacated, and cause remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Strickler, Defendant-Appellant.
    (No. 74-111;
    Fifth District
    July 18, 1974.
    Robert E. Farrell and Michael J. Rosborough, both of the State Appellate Defenders Office, of Mt. Vernon, for appellant.
    Ronald A. Niemann, State’s Attorney, of Salem, for the People.
   PER CURIAM.

CREBS, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Horne, Defendant-Appellant.
    (No. 73-48;
    Fifth District
    May 29, 1974.

      Rehearing denied August 7, 1974.

      Robert E. Farrell and Margaret Maxwell, both of Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Thomas M. Daley, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant was indicted for the alleged offenses of rape and aggravated kidnapping. After originally entering a plea of not guilty, the defendant pled guilty to the charge of rape and was sentenced on July 20, 1972, pursuant to a plea agreement, to serve 4 to 10 years in the penitentiary. The count of aggravated kidnapping was dismissed.

The defendant raised only one issue on appeal: did the trial court accept the defendant’s guilty plea without determining if the defendant understood the nature of the charge?

The record shows that the defendant was given a copy of the indictment at the arraignment and the judge referred to the alleged offense by name at the guilty plea proceeding. The court did not read the indictment or the relevant section of the Criminal Code. It did not define the offense of rape for the defendant or ask him if he understood the charge. Clearly this does not meet the requirement of Rule 402(a)(1).

In its oral argument the State advanced the notion that rape is so well understood that it requires less explanation and intimated that the trial judge in this case was justified in believing that the defendant did in fact understand the nature of the charge. This kind of argument could led to the emasculation of Rule 402. It would depart from a clear requirement spelled out in that rule to a subjective assessment on the part of the judge that the defendant, being an “experienced criminal,” need have no explanation of the charges against him. What the judge thinks about the knowledge of the criminal should have no bearing on his astuteness in seeing that Rule 402 is complied with and that on appeal no doubts can be raised about the defendant being informed. In this case statements made by the defendant raised some doubt about whether the charge should have been rape or attempted rape. In view of this doubt and in view of the many elements included in the definition of rape (male person, 14 years or over, sexual intercourse with a female not his wife, force and against her will), an explanation to the defendant seems particularly important. Furthermore, the statute elaborates on “force and against her will” by stating that this includes situations where the female is unconscious or where she is so mentally deranged or so deficient that she cannot give effective consent. In addition the law also states the one thing which the defendant might have understood without explanation, or again he might not have — namely, that there is sexual intercourse only if there is some penetration of the female organ. This case will have to be reversed for failure to inform the defendant as required by Rule 402(a)(1).

In many instances, the point is advanced by the State, that looking at the “record as a whole,” the factual basis may be relied upon to show that there was an adequate explanation of the nature of the charge. Making certain that the defendant understands the nature of the charge requires explanation and an admonition to the defendant with the judge doing the explaining and admonishing. Establishing the factual basis on the other hand requires that information come from the defendant, the prosecuting attorney, competent witnesses or a pre-sentence report to the judge so he can be informed as to whether or not, in his opinion, the acts of the defendant meet the definition of the crime. A perfunctory discharge of any of these responsibilities is not sufficient. The record should show that they have been expressly dealt with. A reviewing court should not have to examine the whole record and look for a word or sentence here or there to see if the various requirements of Rule 402 have been met. This question is discussed in clear and forceful language in People v. Hudson, 7 Ill.App.3d 800, 802, where among other things the court said:

“Many briefs filed before this court confuse ‘factual basis’ with the requirement of Rule 402(a)(1) that the trial court determine that the defendant understands ‘the nature of the charge.’ ”

This case presents a question not raised in the briefs of tire defendant or the State though it was alluded to in the oral arguments: if the defendant successfully appeals a conviction based on a negotiated guilty plea, can other charges which have been nolle pressed be reinstated?

The court is of the opinion that they can be, with two exceptions. These exceptions are: (1) When the defendant appeals successfully from an offense which within the meaning of section 3 — 4(a) of the Criminal Code (Ill. Rev. Stat, ch. 38, sec. 3 — 4(a)) is an included offense in the offense which was nolle prossed. In that situation the charge which was dropped as a result of a plea bargaining cannot be reinstated; and (2) when the charge which was nolle pressed is a greater offense than that to which the defendant pled guilty. However, the cases advancing this view (Rivers v. Lucas (6th Cir. 1973), 477 F.2d 199; Mullreed v. Kropp (6th Cir. 1970), 425 F.2d 1095; People v. McMiller 1973, 389 Mich. 425) base their holdings on the theory that there was double jeopardy. In People v. Dugan, 15 Ill.App.3d 1071, 1072-1073, the court rejected the theory of double jeopardy but did hold that the defendant could not be reindicted for murder since voluntary manslaughter to which he had pled guilty was an included lesser offense. The court went on to say that jeopardy had not attached since no jury had been impaneled and sworn and the court had not heard evidence. It stated:

“Instead, the defendant tendered and the court merely accepted his proffered plea to voluntary manslaughter. Under such circumstances defendant was never placed in jeopardy on the murder charge, and therefore, having never been exposed to the danger of a conviction of murder, he is not entitled to the protection of the principle of prior jeopardy; nor can it be said that he was impliedly acquitted of murder #
We find the State’s reasoning persuasive and were it not that the law on the subject is specifically spelled out by statute we would have no difficulty in concluding that under the facts here involved further prosecution of defendant on the original charge of murder would not be barred.”

Thus it can be argued in Illinois if the offense from which a defendant prosecutes a successful appeal is not an included offense in a greater offense, he can be recharged with the offense which was dropped even though it is a more serious crime. In this case, however, we are dealing neither with an included offense nor with a greater offense which was dropped. Rape and aggravated kidnapping are both Class 1 felonies carrying the same penalty.

There are two Illinois cases which squarely support the view that, if a case is reversed, charges which were dismissed can be reinstated. In People v. Short, 4 Ill.App.3d 849, 852, the defendant had been charged with armed robbery and rape, and pursuant to a plea agreement the defendant pled guilty to armed robbery. The rape charge was nolle pressed. On reversal of the armed robbery conviction the court said:

“* * * this cause is reversed and remanded with directions to vacate the plea of guilty and sentence imposed and further, the count of the indictment nolle prossed by the State which charged the crime of rape shall be reinstated (see People v. Baron, 130 Ill.App.2d 588) and a rearraignment shall be had in accordance with the views herein expressed.”

Accordingly, the judgment of the Circuit Court of St. Clair County is reversed and remanded with directions to allow the defendant to plead anew if he so desires. The court sees no reason why the State should not consider the reinstatement at the time of rearraignment of the aggravated kidnapping indictment which had been nolle pressed at the time of the defendant’s plea of guilty.

Reversed and remanded with directions.

EBERSPACHER and CREBS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Myron Fox, Defendant-Appellant.
    (No. 73-20;
    Fifth District
    May 29, 1974.

      Rehearing denied August 9, 1974.

    Robert E. Farrell and Michael J. Rosborough, both of Office of State Appellate Defender, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahlmann, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM:

Defendant was indicted for rape and aggravated kidnapping in the circuit court of St. Clair County. He subsequently negotiated a plea, and, pursuant to the negotiations, entered a plea of guilty to attempted rape, was convicted and sentenced to serve not less than 3 nor more than 10 years in the penitentiary.

On appeal he asserts that the trial court failed to comply with the provisions of Supreme Court Rule 402. (Ill. Rev. Stat., ch. 110A, par. 402.) The record discloses that the trial court did not comply with Rule 402(a)(1) which requires that a defendant be informed of the nature of the charge. (People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550; People v. Billops, 16 Ill.App.3d 892, 307 N.E.2d 206.) Such failure requires reversal and remandment.

In view of this result we deem it unnecessary to consider other contentions of noncompliance with the Rule, as well as appellant’s motion for summary relief.

We therefore reverse and remand with directions to aUow the appellant to plead anew if he so desires. (See People v. Horne, 21 IU.App.3d 10.) In the event appellant chooses to not plead anew the judgment of the circuit court of St. Clair County shall be affirmed and reinstated.

Reversed and remanded with directions.

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