text:
    LEON MENTZER, d/b/a J R A M B and Associates, Plaintiff-Appellee, v. BRENDA VAN SCYOC, Defendant-Appellant.
    Fourth District
    No. 4—91—0950
    Opinion filed August 24, 1992.
    John Roska and Charmagne Schneider, both of Land of Lincoln Legal Assistance Foundation, Inc., of Mattoon, for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

On August 2, 1990, plaintiff Leon Mentzer, d/b/a J R A M B & Associates, filed a small claims action in the circuit court of Coles County against defendant Brenda Van Scyoc for unpaid rent and damages. After a hearing, the court entered a judgment on January 14, 1991, in favor of plaintiff and against defendant in the sum of $368 and costs. On July 26, 1991, a citation to discover assets was issued against defendant. Defendant was served with the citation but failed to appear on the hearing date of August 20,1991.

The record is murky as to what happened between August 20, 1991, and September 25, 1991, when plaintiff and defendant appeared pro se. At the conclusion of that hearing, the court ordered defendant to pay plaintiff $10 per month. Defendant then filed a petition for reconsideration of the above ruling on September 27, 1991, and on November 13, 1991, that motion was heard and denied. On November 22, 1991, defendant filed a motion requesting the court to make certain findings of fact. On December 3, 1991, the motion for finding of facts was heard and denied. On plaintiff’s motion, the court imposed a $30 sanction on defendant’s counsel for frivolously filing the motion for finding of facts. Defendant has appealed from the September 25, 1991, November 13, 1991, and December 3, 1991, orders. The appeal does not concern the original judgment for $368 and costs. We reverse the order requiring defendant to pay $10 per month and the imposition of the sanction.

The plaintiff-appellee in this case did not file a brief in support of his position on appeal. In First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493, the court indicated a court of review is not required to serve as an advocate for the appellee or to search the record for the purpose of sustaining the judgment of the trial court, although it may do so if justice requires. The Talandis court further noted, however, that where “the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee’s brief, the court of review should decide the merits of the appeal.” (Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495.) We conclude this is a case where the merits of the case can be fairly easily decided, and justice requires that it be done. The amount in controversy is small, but the parties deserve a clear declaration of their rights. Moreover, the major issue is one upon which guidance is required.

A stipulated report of proceedings concerning the hearings on September 25, November 13, and December 3, 1991, was filed with the record.

At the September 25, 1991, hearing, the plaintiff questioned the defendant concerning the latter’s financial status. Defendant explained she had remarried but was not able to work because of a work-related injury for which she was receiving workers’ compensation benefits in the amount of $99.13 per week whereas she had been earning $234 per week when she was working. Defendant also stated that her new husband received $407 per month from a Federal program entitled Supplemental Security Income (SSI). The court then ordered defendant to pay plaintiff in reduction of the judgment the modest sum of $10 per month, which was the amount defendant had agreed to pay after judgment but before she received the work-related injury.

Defendant’s petition for reconsideration of the September 25 order was drafted by her counsel and contended that no order of payment could properly have been entered against defendant when her sole source of income was workers’ compensation benefits. Defendant relied upon section 21 of the Workers’ Compensation Act (Act), which states as follows:

“No payment, claim, award or decision under this Act shall be assignable or subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 138.21.

No evidence was taken at that hearing. In denying defendant’s request to reconsider its order of September 25, 1991, the court indicated (1) no showing had been made that defendant’s sole source of income was workers’ compensation benefits, and (2) the order of September 25 neither attached nor garnished defendant’s workers’ compensation benefits. The court did not have the benefit of the stipulated transcript of the September 25 hearing. We deem that transcript to show that workers’ compensation benefits were her only source of income. Defendant could not require her new husband to make her $10-per-month payments for a debt she incurred before marriage.

The major aspect of this case centers around the circuit court’s apparent interpretation of section 21 of the Act as merely immunizing proceeds of compensation awards from being either subject to a lien or the source for garnishment or attachment. The court apparently concluded the funds received no protection from section 21 of the Act if they were in the hands of the claimant. In support of her argument on her motion for reconsideration, plaintiff cited East Moline Works Credit Union v. Linn (1964), 51 Ill. App. 2d 97, 200 N.E.2d 910. There, the appellate court affirmed a circuit court order quashing a garnishment writ sought by a judgment creditor of a workers’ compensation claimant against a bank holding an account consisting entirely of the proceeds of the claimant’s award. A similar decision had been made in Weber v. Ridgway (1918), 212 Ill. App. 159, 163.

Even more favorable to defendant is the recent decision in In re Estate of Callahan (1991), 144 Ill. 2d 32, 578 N.E.2d 985. There, an individual had been severely injured requiring the appointment of a guardian of his estate. Upon appointment, the guardian hired counsel on a contingent-fee basis, to bring an action in tort for those injuries. The guardian later fired that counsel. That counsel then brought suit against the guardianship for a fee. The sole asset of the guardianship was the proceeds of a workers’ compensation award. The principal issue was whether the discharged attorneys were entitled to fees before or after the case concluded. The circuit court fixed those fees in the sum of $36,000 and allowed the attorneys’ request to have those fees paid from the proceeds of the workers’ compensation claim which the guardian had been receiving and would receive in the future.

The Callahan court reasoned as follows:

“The pertinent part of section 21 provides that workers’ compensation benefits paid under the Act shall not be liable for any ‘debt.’ The word ‘debt’ is not defined in the Act. A debt is a certain sum of money owing from one person to another. (Black’s Law Dictionary 363 (5th ed. 1979).) By virtue of the trial court judgment in the instant case, the guardianship estate owes the claimant $36,000 for legal services it has received. Therefore, we consider this sum of money to be a debt within the meaning of the Act and the claimant should not be permitted to recover his judgment against the workers’ compensation benefits paid to the estate.” Callahan, 144 Ill. 2d at 43, 578 N.E.2d at 989.

Thus, in Callahan, the person seeking access to the compensation award was not claiming a lien or seeking to garnish or attach the proceeds of the award. Rather, the person seeking reimbursement was merely requesting that the judgment debtor be required to satisfy the judgment by payment of proceeds obtained from a workers’ compensation award. The fact that the funds were in the hands of a guardian rather than the debtor himself would not seem to make a difference. There, the only funds the guardian had to pay the “damages” award were proceeds from such an award. Under the evidence here, the only funds defendant had with which to pay the damages through the modest $10-per-month payment ordered were also workers’ compensation award funds.

Callahan and the instant case differ from In re Marriage of Logston (1984), 103 Ill. 2d 266, 284-85, 469 N.E.2d 167, 174-75. There, the supreme court held that section 706.1(A)(4) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(A)(4)) prevailed over section 12—1001 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1983, ch. 110, par. 12—1001) and permitted courts to order withholding of various types of income due to a former spouse defaulting on maintenance obligations even though this same type of income would otherwise be immune from such restriction under the exemption rights set forth in section 12—1001. Public policy does not give the same importance to plaintiff’s right to collect a judgment for rent or for attorney fees that it gives to a spouse to obtain court-ordered maintenance. Section 706.1(A)(4) of the Marriage Act expressly states that other laws exempting income from supplementary proceedings do not apply.

Section 12—1001 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 12—1001), concerning exemptions of personal property, provides an elaborate scheme for the exercise of such exemptions and the limitations thereon. No direct reference is made to workers’ compensation benefits, but section 12—1001(g)(3) does refer to a debtor’s right to receive “disability *** benefits].” Moreover, section 12—1001 of the Code only purports to give exemption from “judgment, attachment, or distress for rent.” Section 21 of the Act is more specific in its coverage of workers’ compensation benefits and creates a greater protection for recipients. We conclude that section 12—1001 does not supersede or infringe upon the protection given by section 21 of the Workers’ Compensation Act.

We conclude that under Callahan, a court cannot generally require workers’ compensation benefits to be applied to the debts of a claimant, even when reduced to judgment, unless some specific statutory provision such as section 706(A)(4) of the Marriage Act so provides. Where, as here, the only funds available for payment of a judgment are workers’ compensation benefits, an order requiring payment even in a very modest amount is improper.

Finally, we consider the court’s order of December 3, 1991, imposing a sanction upon defense counsel. At that time, the court heard the defendant’s motion requesting the court make findings of fact as to its ruling in regard to imposition of the $10 monthly payment. Supreme Court Rule 286 provides that, in small claims cases, “[a]t the conclusion of the hearing the court shall render judgment and explain the reasons therefore to all parties” (134 Ill. 2d R. 286). The circuit court explained to defendant and counsel that the court had set out its reasons for its rulings and its findings at the hearing on November 13, 1991. The stipulated report of proceedings substantiates the court’s statement in this respect. The explanation was certainly satisfactory for a small claims proceeding. However, before imposing a sanction, the court is required to determine that the pleading in question is not well grounded in fact, not a, good-faith argument for change or modification of the law, or a document filed for an improper purpose. 134 Ill. 2d R. 137.

Before imposing a sanction, the court is also required to “set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.” (134 Ill. 2d R. 137.) Here, the court recited it found “no basis in the law for the motion.” We can well appreciate the frustration suffered by a court in handling a case of this nature, but we do not find the lack of basis in law for a motion, of itself, satisfies the requirements for even the small sanction imposed here.

Accordingly, we reverse the orders from which appeal was taken.

Reversed.

STEIGMANN and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    MICHAEL DOBRINSKY et al., Plaintiffs-Appellees and Counterdefendants-Appellees, v. JAMES WADDELL, Defendant (William Ingrum et al., Defendants-Appellants and Counterplaintiffs-Appellants).
    Fourth District
    No. 4—92—0107
    Opinion filed September 3, 1992.

      Barber, Segatto, Hoffee & Hines, of Springfield (Bernard G. Segatto III, of counsel), for appellants.
    Thomas R. Appleton, of Morse, Giganti & Appleton, of Springfield, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

This is a dispute over a property line in a residential area of the Village of Illiopolis. Illiopolis has a population of approximately 1,150 and is located between Decatur and Springfield. Kelsan Heights Addition (Addition) is shown by a plat recorded on July 12, 1957, and the north line of the Addition borders agricultural fields. We are concerned with certain lots in a one-half block containing six lots, which block is bordered on the east by a dead-end section of Cherry Street, on the south by Lawrence Street, on the west by a dead-end section of Foster Street, and on the north by the north line of the Addition. The lots run lengthwise north and south, with lot No. 48 being on the east end of the half block and lot No. 53 being on the west end of the half block.

The 1957 plat shows each lot (Nos. 48 through 53) to be 150 feet by 80 feet, for a total east-to-west distance of 480 feet. However, another survey was completed in 1966, which was reduced to a plat showing the overall width to be 495 feet bordering Lawrence Street and 495.5 feet paralleling on the north side of the half block. The 1966 plat based on the resurvey was not recorded until the current litigation, and for technical reasons, was ordered vacated. The extra 15 to 15V2 feet do, as shown by the evidence, exist.

James Waddell owned the tract at the time of the resurvey. He subsequently sold lot Nos. 48, 50, 51, 52, and 53, treating them as 82.5 feet in width. Houses were built on lot Nos. 48, 50, 51, and one house was built on lot Nos. 52 and 53.

Michael Dobrinsky and his wife, Janet, purchased lot No. 48 with the house thereon in 1976. While survey pins from the resurvey were in existence in the half block, Michael Dobrinsky stated that he could not find them. In an attempt to find his west property line, he measured from the east boundary of Foster Street (the west line of lot No. 53) east 400 feet. The 400 feet would have been the total width of lot Nos. 49 through 53, as incorrectly shown on the 1957 plat. The 400 feet from Foster was to a point actually 95 feet from the east side of lot No. 48.

The Dobrinskys planted trees approximately five feet east of the line established by the 400-foot measurement. They mowed grass to the west of the trees, to approximately the 400-foot measurement, or beyond that to about the middle of the vacant lot.

William and Donna Ingram purchased the house on lot No. 50 in 1988. They also purchased lot No. 49 from Waddell in 1988. The present action arose over a dispute with what the Dobrinskys claimed as their west property line. The trial court’s order dated January 9, 1992, held as follows:

“IT IS THEREFORE ORDERED that Plaintiffs have proved their right to possess Lot 48 of Kelsan Heights Addition up to 15 feet to the West of the platted line of the western boundary of said Lot 48 and has re-established said western boundary of Lot 48 by the acquiescence by Defendants WILLIAM INGRUM and DONNA INGRUM’s predecessors in title.
That portion of Plaintiffs’ Complaint and Defendants’ Counter Complaint seeking monetary damages are denied. Each party shall bear its own costs of suit. Judgment for Plaintiffs for possession of said property is allowed.”

The Ingrums appeal from this judgment.

We begin our analysis of the law by recognizing the excess 15 to 15V2 feet in the subdivided half block would normally be apportioned among the six lots. (May v. Nyman (1972), 3 Ill. App. 3d 580, 585, 278 N.E.2d 97, 101; Nilson Brothers, Inc. v. Kahn (1924), 314 Ill. 275, 278, 145 N.E. 340, 341; 5 Ill. L. & Prac. Boundaries §3 (1953).) The 1966 resurvey plat illustrates such an apportionment, and the pins placed by the surveyor in 1966, which still exist, are placed based on the apportionment rule.

The disputed tract in the present case is part of lot No. 49, legal title to which remained in James Waddell from his 1966 purchase of lot Nos. 48 through 53, until he sold lot No. 49 to William and Donna Ingram. There is no question but that the Dobrinskys planted a row of trees on the easterly side of lot No. 49 and often mowed at least the easterly portion of lot No. 49.

As stated, the trial court awarded the Dobrinskys this 15 to 15x/2 feet, based on a theory of acquiescence by James Waddell.

“Where a boundary between two tracts is unascertained or in dispute, the line may be established, first by parol agreement and possession; second, by an agreement implied from unequivocal acts and declarations of the parties and acquiescence for a considerable period of time; and third, in the absence of any agreement, by undisturbed possession for more than twenty years.” McLeod v. Lambdin (1961), 22 Ill. 2d 232, 235, 174 N.E.2d 869, 871.

See also Ginther v. Duginger (1955), 6 Ill. 2d 474, 481, 129 N.E.2d 147, 151; Nitterauer v. Pulley (1948), 401 Ill. 494, 498, 82 N.E.2d 643, 646.

If the dispute only relates to the location of the actual boundary line as determined by the subdivision plat, and that line can actually be ascertained from existing survey pins, then the actual survey will prevail over a parol agreement. (Wright v. Hendricks (1944), 388 Ill. 431, 434-35, 58 N.E.2d 453, 454; Darter v. Darter (1980), 91 Ill. App. 3d 322, 325, 414 N.E.2d 862, 864.) However, the present case appears to be based not on the actual surveyed boundary, but upon a claim by the Dobrinskys to the disputed tract determined from the 400-foot measurement back from the western edge of lot No. 53 and used by them since 1976.

It is clear there was no parol agreement between the Dobrinskys on one side, and either James Waddell or William and Donna Ingram on the other side. There is an absence of 20-year possession, so adverse possession could not justify the court’s result. The remaining method of establishing an interest without a conveyance, “acquiescence,” requires an implied agreement from unequivocal acts and declarations, and acquiescence for a considerable period of time. Obviously, a substantial burden is placed upon the nontitleholder claimant in establishing this acquiescence. So, for example, in McLeod, a hedge fence of trees running north and south, though 20 to 25 feet east of the true government surveying line, was recognized, utilized and accepted by the respective owners as the line between their two tracts for more than 20 years prior to the legal action. After the hedge fence was removed, the respective owners followed an arrangement whereby in the fall of each year, they erected an electric fence from a stump at the south and to a wooden stub at the north end along the hedge fence line to pasture their cattle; in the spring and summer they took down the wire to facilitate cultivation. The McLeod court found the respective owners’ agreement was fairly implied to establish and recognize the hedgerow as the boundary line. The court further noted possession for over 20 years was also shown.

The policy issue in actions of this kind is basically the same. The decision in White v. Harris (1903), 206 Ill. 584, 592, 69 N.E. 519, 522, illustrates that policy:

“ ‘A party, claiming title by adverse possession, always claims in derogation of the right of the real owner. He admits that the legal title is in another. He rests his claim not upon a title in himself, as the true owner, but upon holding adversely to the true owner for the period prescribed by the Statute of Limitations. Claiming a benefit from his own wrong, his acts are to be construed strictly.’ (Cornelius v. Giberson, 25 N.J.L. 31). ‘Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive and unequivocal.’ (Zirngibl v. Calumet Dock Co. 150 Ill. 430.) The rule is, that every presumption will be made in favor of the holder of the legal title, and no presumption will be made in favor of the holder of color of title only. (Kurz v. Miller, 89 Wis. 426).”

Furthermore, use of vacant and unoccupied land is presumed to be permissive and not adverse (Parker v. Rosenberg (1925), 317 Ill. 511, 517, 148 N.E. 269, 272), and cannot ripen into prescriptive right, whatever length of time such permissive use is enjoyed (Rush v. Collins (1937), 366 Ill. 307, 314-15, 8 N.E.2d 659, 662-63; Monroe v. Shrake (1941), 376 Ill. 253, 256, 33 N.E.2d 459, 461). While Parker, Rush, and Monroe involved easements, we fail to see why the presumption would not apply as to all unoccupied land. See Darter, 91 Ill. App. 3d at 324, 414 N.E.2d at 864.

James Waddell testified that he relied on the 1966 survey when he sold lot Nos. 48 through 53. He built the houses on lot Nos. 48 and 51 and did not remember if he built the house on lot No. 50. The houses he built were located as if the lots were 82.5 feet wide, rather than 80 feet. He, at times, had lot No. 49 mowed and, while being aware that trees were planted on the lot by the Dobrinskys, did not agree to or evidently disagree with their planting. According to Michael Dobrinsky, Waddell told Dobrinsky that he was planting trees on Waddell’s lot. Basically, lot No. 49 was left vacant until it was sold in 1988.

To uphold the trial court’s decision in this case would make mockery of the tests repeated in McLeod, Ginther and Nitterauer, ignoring the significance of taking another’s property without compensation. The presumption of permissive use of unoccupied land also applies under the facts presented. Here, we have no declaration by Waddell indicating an agreement to the Dobrinskys’ right to the disputed tract. The failure to object to either the Dobrinskys’ tree planting or mowing is not an unequivocal act indicating recognition of the validity of the Dobrinskys’ claim. In fact, Michael Dobrinsky’s account of his conversation about the trees indicates a somewhat confrontational encounter, rather than submission. According to the evidence, owners of both lot Nos. 48 and 50 helped maintain lot No. 49. The evidence did not include unequivocal acts by Waddell and was not sufficient to find an implied agreement.

The owners of both lot Nos. 48 and 49 are parties to this litigation. On remand, the trial court is directed to enter a judgment stating that lot Nos. 48 and 49 are to be determined by the 1966 survey plat, with the Dobrinskys to have right to possession of lot No. 48 and the Ingrums to have right to possession of lot No. 49.

Reversed and remanded with directions.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE COOK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNELL TURNER, JR., Defendant-Appellant.
    Fourth District
    No. 4—91—0834
    Opinion filed August 27, 1992.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

After a jury trial, defendant was convicted of theft over $300, a Class 3 felony. (Ill. Rev. Stat. 1991, ch. 38, pars. 16—1(a), (b)(4).) On March 29, 1991, the court sentenced defendant to 24 months of probation and a 60-day term of periodic imprisonment. The State later filed a petition and supplemental petition to revoke probation. The court found proof of those violations, revoked defendant’s probation, and on October 23, 1991, resentenced defendant to a term of five years of imprisonment. Defendant appeals, alleging the computer records submitted as evidence at his probation revocation hearing were inadmissible hearsay, and the trial court abused its discretion in sentencing him to the maximum term of five years of imprisonment. We affirm.

The petitions to revoke probation alleged defendant failed to report for periodic imprisonment and failed to report to the probation office. At the October 8 revocation hearing Brenda Manala, defendant’s probation officer, testified that defendant never reported to her office following his placement on probation. She stated she was not familiar with defendant until the first probation revocation hearing on September 19, 1991. On cross-examination, Manala admitted that she carried 150 to 199 cases and that it was possible she would not have received a message left for her from a probationer. However, Manala also stated that defendant’s file would indicate if he had ever appeared at the probation office.

Nancy Griffin, program coordinator for the Champaign County Correctional Center, testified to the computer records which showed defendant never reported for periodic imprisonment. Griffin explained her familiarity with the computer-generated “census history” of inmates kept at the county jail. She testified that an individual record is kept for each inmate which includes information when the inmate reports to the jail, leaves the jail, and appears in court while in custody. Griffin testified that the computer is an IBM and, to the best of her knowledge, is the type ordinarily used to enter such records in that type of business. She stated it was her responsibility to maintain these records and generate them when requested. Griffin’s records indicated there was an order of imprisonment with respect to defendant in this case. She said the computer printout showed defendant’s census history up to September 12, 1991, and indicated defendant was not present at the Champaign County Correctional Center on April 2, 1991, the day he was to report for periodic imprisonment. She stated the printout does not show defendant’s presence at the jail at any time after April 2 until he was eventually incarcerated on September 12, 1991. Griffin stated that about 60 people at the jail have access to the computer to enter census information. She testified that census records on each inmate are made within a reasonable amount of time as the occurrences happen throughout the day and night.

Upon further questioning by the trial judge, Griffin explained the procedure when an inmate is sentenced to serve periodic imprisonment and work release. Griffin testified that when an inmate reports to the jail, the booking officer checks to make sure there is an order of imprisonment regarding that specific person. Within a reasonable amount of time after security and pat searches are conducted, the booking officer enters the person into the computer. Griffin testified that this procedure is followed every time a person first reports for a sentence of periodic imprisonment. When a prisoner is then released for work or school, the jail maintains paperwork to record that fact and requires the inmate to keep a time card to be punched when leaving and reentering the correctional facility. Thus, after an inmate enters the jail the first time for periodic imprisonment his presence (except for court appearances) is monitored with time cards.

Defendant objected to the computer printout as inadmissible hearsay, arguing the record does not come within the business record exception since it was produced in a pending litigation at the request of the State. Defendant further argued the printout is not an official record since Griffin had no knowledge whether she was required to keep these records by statute. The trial judge found the printout admissible both as a business record and as an official record. The judge found there was a prescribed procedure to keep such records, which was followed in this case; that it is part of the jail’s business to keep such records; and that the record before the court was kept in the regular course of jail business. The court stated that section 6 of the County Jail Act (Act) required the jail to keep such records. (Ill. Rev. Stat. 1989, ch. 75, par. 106.) The court found in favor of the State on both petitions and resentenced defendant to five years of imprisonment in the Department of Corrections, the maximum allowable for a Class 3 felony. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)(6).) In considering sentence, the judge noted that defendant did not miss just one or two appointments with his probation officer and Department of Corrections, but failed to report at all to either organization.

Defendant’s first contention on appeal is that the computer printout on his census history at the jail was inadmissible hearsay since it was not a business record or an official record. Defendant objected to admission of the computer printout during the probation revocation hearing, but did not renew his objection in a post-trial motion. Defendant’s failure to file a post-trial motion constitutes a waiver of this issue on appeal. “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) A post-trial motion is required in both jury and nonjury cases. (Enoch, 122 Ill. 2d at 187-88, 522 N.E.2d at 1130.) Enoch, a capital case, announced exceptions to the post-trial motion requirement, which would apparently apply as well in noncapital cases: (1) constitutional issues which could be raised later in a post-conviction hearing petition (Ill. Rev. Stat. 1989, ch. 38, par. 122—1); (2) sufficiency of the evidence; and (3) plain error. (Enoch, 122 Ill. 2d at 190, 522 N.E.2d at 1131-32.) None of those exceptions apply here. The argument could be made that the Enoch rule, which applies to trials, should not be applied to probation revocation proceedings. (See People v. Szabo (1986), 113 Ill. 2d 83, 93, 497 N.E.2d 995, 999 (failure to raise “trial errors” in a post-trial motion).) Enoch is written in broad terms, however, based on a policy of preventing needless appeals. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; People v. Caballero (1984), 102 Ill. 2d 23, 31, 464 N.E.2d 223, 227.) A probation revocation proceeding is a trial, albeit one where special rules apply. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(c).) We believe the Enoch rule must logically be applied to probation revocation proceedings.

We further reject defendant’s contention on the merits. The requirements for admitting public records as an exception to the hearsay rule are that the record is made in the ordinary course of business and is authorized by statute, rule, or regulation, or required by the nature of the public office. (People v. Minor (1990), 197 Ill. App. 3d 500, 502, 554 N.E.2d 767, 769; see 134 Ill. 2d R. 236(a).) Section 6 of the Act requires the following:

“The warden of the jail shall keep an exact permanent calendar of all persons committed to jail, registering the name, place of abode, time, cause and authority of their commitment, and the time and manner of their discharge.” Ill. Rev. Stat. 1989, ch. 75, par. 106.

Defendant alleges the printouts in question do not satisfy the requirement that the record be “an exact permanent calendar” (Ill. Rev. Stat. 1989, ch. 75, par. 106) since they contain no information on an inmate’s activities during periodic imprisonment. Griffin testified that the printout contains information as to the inmate’s date and time of arrival at the jail, time of booking, the inmate’s sentence, date and time of removal or release, method of release with regard to each arrest, date of court appearances while in custody, and records of each time an inmate is moved from one cell block to another. The trial court did not abuse its discretion in finding the printout to contain the information that the statute requires and thus qualify under the public records exception to the hearsay rule. See People v. Hawthorne (1978), 60 Ill. App. 3d 776, 779, 377 N.E.2d 335, 338.

Defendant alleges the printout is inadmissible as a business record since the State failed to lay a proper foundation for its admission into evidence. Supreme Court Rule 236(a) (134 Ill. 2d R. 236(a)) states in pertinent part:

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility.”

Section 115—5(a) of the Code of Criminal Procedure of 1963 (Code) contains a similar provision. Ill. Rev. Stat. 1989, ch. 38, par. 115—5(a).

The language of the Code and the rule apply equally to computer and noncomputer records. Any document admissible as a business record under Rule 236 must first be authenticated by a proper foundation. Computer printouts are admissible where it is shown that (1) the electronic computing equipment is recognized as standard; (2) the input is entered in the regular course of business reasonably close in time to the happening of the event recorded; and (3) the foundation testimony establishes that the sources of information, method and time of preparation indicate its trustworthiness and justify its admission. Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 202, 367 N.E.2d 1238, 1242.

Defendant argues the second prong of the Grand Liquor test was not satisfied since no computer entries are made when an inmate leaves or reports back from periodic imprisonment, making the computer entries an incomplete and untimely record of an inmate’s activities, absent the time cards. The business records exception to the hearsay rule is premised on the concept of routineness. “The credibility of any business record depends upon the regular, prompt and systematic nature of the entry and the fact that it is relied on in the operation of a business.” (People v. Mormon (1981), 97 Ill. App. 3d 556, 564, 422 N.E.2d 1065, 1071.) Griffin testified that booking information is entered in the ordinary course of business for every inmate at or near the time each person is booked and placed in the prison system. Since defendant never reported for periodic imprisonment, his file contained no time cards from checking in and out of the facility. His printout was a complete record of his activities in the prison system — or in this case, the lack thereof — and all entries were made in the regular course of business by prison personnel. The jail relied upon these records for its routine day-to-day operation and the court correctly admitted the printout under the business record exception to the hearsay rule. (134 Ill. 2d R. 236(a).) We need not consider whether the computer printout would be admissible if there were a question about releases for work or school.

Defendant also contends the third prong in Grand Liquor is not satisfied since Griffin testified that over 60 people at the jail have access to the computer to enter census information. Defendant argues that the number of employees who enter this information, in addition to the fact that Griffin was not the recorder of the information, makes the data untrustworthy. It is not essential that the offering witness be the recorder of the item, since anyone who is familiar with the records sought to be admitted and who is acquainted with the business and procedures may testify as to the records. (Barr v. Groll (1991), 208 Ill. App. 3d 318, 324-25, 567 N.E.2d 13, 17; see also United States v. Newman (5th Cir. 1972), 468 F.2d 791, 795.) Supreme Court Rule 236(a) provides that the lack of personal knowledge of the witness is a matter which affects the weight and credibility to be given the business record, but does not affect its admissibility. (134 Ill. 2d R. 236(a); People v. Lewis (1977), 52 Ill. App. 3d 477, 484, 367 N.E.2d 710, 715; Tie Systems, Inc. v. Telecom Midwest, Inc. (1990), 203 Ill. App. 3d 142, 150, 560 N.E.2d 1080, 1086.) Griffin testified she was quite familiar with the census printouts, the procedures used to produce them, and the information which they contained. The fact that 60 people had access to the computer only affected the weight and credibility given to the printout, which was found to be a reliable document used in the regular operation of the jail.

Defendant contends that section 6 of the Act only applies for a limited purpose and where there is a complete record. (Hawthorne, 60 Ill. App. 3d at 779, 377 N.E.2d at 338.) Hawthorne was concerned with the use of a jail record card as evidence of an inmate’s address on a certain date. The court there ruled that defendant’s jail card was admissible as a public record to prove that defendant told the jailer his address upon defendant’s reception into the county jail, but not to prove the truth of that statement. (Hawthorne, 60 Ill. App. 3d at 779, 377 N.E.2d at 338.) Here, the computer printout is hearsay since the State has offered it to prove the truth of the matter asserted, that defendant failed to appear at the jail; however, the document is admissible under exceptions to the hearsay rule both as an official record and as a business record.

Defendant next alleges that the court’s imposition of the maximum term of five years of imprisonment was an abuse of discretion and is inconsistent with the court’s initial finding that, based upon the nature of the offense and character of the offender, a term of probation was an appropriate disposition. The State maintains that defendant has waived this issue on appeal by failing to file a motion to reduce sentence as required by section 5—8—1(c) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c)). We disagree.

As discussed above, Enoch requires two objections, one at trial and another in a post-trial motion, before trial errors in a criminal case may be raised on appeal. Enoch did not involve sentencing hearings or post-sentencing motions, but the Fifth District Appellate Court recently held that section 5—8—1(c) of the Corrections Code requires, before a defendant appeal only his sentence, that he first file a motion to reduce his sentence with the trial court within 30 days. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(c); People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114.) Macke argued such a requirement was similar to the Enoch requirement of a post-trial motion to preserve issues on appeal, and to requiring a defendant who pleads guilty to move to withdraw that plea before appealing (134 Ill. 2d R. 604(d)). Previous cases had held that post-sentencing motions were not necessary to preserve error as to sentencing issues. People v. Hargis (1983), 118 Ill. App. 3d 1064, 1083, 456 N.E.2d 250, 261; People v. Scott (1989), 180 Ill. App. 3d 418, 424, 535 N.E.2d 1113, 1117.

We decline to follow Macke. Section 5—8—1(c) of the Corrections Code does not specifically require a motion to reduce sentence as a precondition to appeal, and we decline to adopt a view which would essentially engraft such a condition. Duplicative motions to reduce sentence will not promote judicial economy, but will prolong cases in the trial court, requiring additional effort by the parties and by the courts. When the alleged error involves something which occurred at the sentencing hearing, it is only necessary that the matter be somehow brought to the attention of the trial court, by a contemporaneous objection if possible. When the alleged error is the length of the sentence, no objection is necessary, either at the hearing or by way of a motion to reduce sentence, in order to preserve the issue for appeal. Of course, in guilty plea cases the filing of a motion to reconsider a sentence is a prerequisite to an appeal from that sentence. (145 Ill. 2d R. 604(d); People v. Wallace (1991), 143 Ill. 2d 59, 61, 570 N.E.2d 334, 335.) The excessive sentence issue was not waived in this case.

On the merits, the trial court did not abuse its discretion in resentencing defendant to five years of imprisonment given defendant’s probation violations and lack of shown rehabilitative potential. The trial court is in the best position to assess credibility, demeanor, moral character, and other important factors in determining the appropriate sentence. (People v. Jones (1988), 172 Ill. App. 3d 1048, 1050, 527 N.E.2d 521, 523.) Although a reviewing court has the power and authority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) to reduce a sentence imposed by the trial court, it will not overturn the sentence imposed by the trial court in the absence of an abuse of discretion. Jones, 172 Ill. App. 3d at 1050, 527 N.E.2d at 523.

After a trial court revokes a defendant’s probation, defendant can be resentenced to any sentence which would have been appropriate for the underlying offense. (Jones, 172 Ill. App. 3d at 1049-50, 527 N.E.2d at 523.) Although the sentence imposed after revocation of probation may not constitute punishment for conduct which was the basis of revocation, the defendant’s conduct on probation is to be considered by the trial court in assessing the defendant’s potential for rehabilitation, and a sentence imposed after probation is revoked may differ from the sentence which could have been imposed had probation not been granted. (Jones, 172 Ill. App. 3d at 1050, 527 N.E.2d at 523; People v. Bogan (1989), 185 Ill. App. 3d 129, 135, 540 N.E.2d 1135, 1138.) Thus, a defendant whose conduct on probation reflects poorly on his rehabilitative potential may be given a sentence more severe than the one which the court initially imposed. (People v. Reznick (1986), 141 Ill. App. 3d 593, 597-98, 491 N.E.2d 444, 446-47.) At defendant’s resentencing hearing, the trial judge stated that he had never seen anyone so blatantly violate a sentence of probation as defendant had in this case. Defendant repeatedly failed to report either to his probation officer or to the correctional center and the trial judge found little indication that defendant would change his ways if again sentenced to probation.

Defendant argues that he did not engage in any criminal or violent behavior, and that the trial judge’s severe sentence failed to consider the level of seriousness of his offense and failed to meet the objective of restoring the offender to useful citizenship. The Illinois Constitution requires that the trial court achieve a balance between the retributive and rehabilitative purposes of punishment. (Ill. Const. 1970, art. I, §11; People v. Center (1990), 198 Ill. App. 3d 1025, 1033, 556 N.E.2d 724, 729.) The record indicates that the judge considered factors both in aggravation and mitigation, the presentence report, and arguments of counsel at the sentencing hearing. Neither the State nor the defense offered new evidence in aggravation or mitigation. The court found as an aggravating factor that defendant had a criminal record that included battery, disorderly conduct, fighting in a public place, and receiving stolen property. The court also considered that defendant’s offense did not cause anyone physical injury.

We affirm the trial court’s finding that the computer printout was admissible hearsay and affirm the order resentencing defendant to five years of imprisonment.

Affirmed.

GREEN, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD KLEINIK, JR., Defendant-Appellant.
    Fifth District
    No. 5—90—0065
    Opinion filed September 2, 1992.
    Ronald A. Niemann, of Niemann & Parker, of Centraba, for appellant.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Diane L. Campbell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Donald Kleinik, Jr., appeals from a judgment of the circuit court of Fayette County finding him guilty of two counts of unlawful possession of a controlled substance in violation of section 402 of the Controlled Substances Act (Ill. Rev. Stat. 1989, ch. 56½, par. 1402(b)). On appeal, defendant contends that: (1) the trial court erred in not granting defendant’s motion to quash search warrant and suppress evidence; and (2) the trial court erred in sentencing defendant on both counts II and III when each count charged simultaneous possession of more than one controlled substance. We reverse and remand.

For purposes of this appeal, a full recitation of the facts leading to defendant’s arrest is unnecessary. On May 21, 1989, Vandalia police officer Gene Cearlock appeared before the circuit court of Fayette County, requesting the court to issue a search warrant to search defendant’s residence and seize any evidence of cocaine or methamphetamine possession. The circuit court issued the warrant, and Cearlock executed it. Based on evidence seized at defendant’s residence, he was arrested and charged with eight offenses, consisting of one count of possession with intent to deliver a controlled substance, two counts of unlawful possession of a controlled substance, one count of unlawful use of weapons, one count of unlawful possession of a vehicle with the vehicle identification number removed, and three counts of unlawful possession of certificate of title without complete assignment. Defendant filed a pretrial motion to sever counts I, II and III from counts IV through VIII. The trial court granted defendant’s motion, and defendant was tried for possession with intent to deliver a controlled substance (count I) and unlawful possession of a controlled substance (counts II and III). In a separate pretrial motion, defendant moved to quash the arrest warrant and suppress evidence, alleging that the search warrant contained false statements knowingly and intentionally made by Officer Cearlock. Specifically, there was a discrepancy in the complaint for search warrant as to what time Cearlock began surveilling defendant’s residence on May 21, 1989. The circuit court denied defendant’s motion, finding that the inconsistency in time, which was stated as 6 a.m. at one point in the complaint and 6:50 a.m. at another point, was not fatal when considering the complaint as a whole.

At trial, as defense counsel cross-examined Officer Cearlock on the inconsistencies in his complaint for search warrant, the following testimony was elicited:

“Q. You appeared in front of [the issuing judge], as I recall, for the search warrant, is that true?
A. Yes.
* * *
Q. *** You were under oath at the time, is that correct? At the time you appeared in front of the court?
A. I signed a sworn statement, I was not under oath.
Q. Well, I don’t understand the difference. What’s the difference?
A. I signed a statement that the statements on the sheet, the facts were true to the best of my knowledge.
Q. Okay.
A. But I was not under oath.
Q. Didn’t — ? Didn’t the judge put you under oath?
A. No.
Q. So you don’t consider that you were under oath at the time you presented the complaint for search warrant to the judge?
A. I was never sworn.”

After the above exchange occurred, defense counsel moved to supplement his pretrial motion to quash arrest and suppress evidence and requested the court to reconsider its previous denial of the motion. The trial court reserved ruling on the motion, allowing defense counsel to supplement the motion at the close of the State’s case. At that time, defendant argued that the fourth amendment to the United States Constitution (U.S. Const., amend. IV) requires that no warrants be issued except under oath of a complainant. The trial court again denied defendant’s motion. The jury returned a verdict of not guilty on count I and guilty on counts II and III.

On appeal, defendant first contends that the trial court erred in not granting defendant’s motion to quash search warrant and suppress evidence. Defendant argues that Cearlock’s testimony that he was not sworn and did not consider himself to be under oath at the time the search warrant was issued invalidates the search warrant. The fourth amendment to the United States Constitution states that no warrants shall issue but upon probable cause, supported by oath or affirmation. (U.S. Const., amend. IV.) Article I, section 6, of the Illinois Constitution declares that no warrant shall issue without probable cause, supported by affidavit. (Ill. Const. 1970, art. I, §6.) In the case before us, Cearlock clearly stated that he was not under oath and had not been sworn when the search warrant was issued on his complaint. The State argues that since Cearlock signed a notarized statement “that the statements on the sheet, the facts were true to the best of my knowledge,” there was an affirmation. We disagree. Our supreme court has held: “A search warrant can only be granted after a showing made before a magistrate, under oath, that a crime has been committed ***.” (Emphasis added.) (Lippman v. People (1898), 175 Ill. 101, 113, 51 N.E.2d 872, 875.) More recently, the court in City of Chicago v. Adams (1977), 67 Ill. 2d 429, 367 N.E.2d 1299, upheld a search warrant based on an informant’s tip where the informant was present in court and sworn when the complaint was presented. Such a holding clearly implies that an applicant for a search warrant must be sworn for the warrant to be valid. Although the State would like us to have the impression Cearlock was sufficiently sworn at the time the warrant issued, Cearlock himself testified that he was not sworn or under oath at the time. Therefore, we can only conclude that Cearlock was not under oath or affirmation and the search warrant is void under the United States and Illinois Constitutions. We find that the trial court erred in not granting defendant’s motion to quash and suppress evidence and reverse the judgment on that basis. As we are reversing on those grounds, we need not address defendant’s contention that the trial court erred in sentencing defendant.

For the foregoing reasons, the judgment of the circuit court of Fayette County is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. REYONDOS TAYLOR, Defendant-Appellant.
    Fifth District
    No. 5—91—0330
    Opinion filed September 2, 1992.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Reyondos Taylor, was charged in the circuit court of St. Clair County with first-degree murder. Defendant, along with his half-brother, Terrance Towns, was accused of the murder of Charles Woodcock, the night manager of the Short Stop convenience store in Fairview Heights. Defendant was convicted after a jury trial and sentenced to 45 years’ imprisonment.

At trial, several witnesses testified that they had either seen or spoken to Woodcock, who was working alone, minutes before closing. A search of defendant’s mother’s house, where the defendant lived, produced a note, found in defendant’s bedroom. The note outlined a “plan” to shoot and rob someone, put the body in the victim’s car and leave it in the city, and take his stereo, equalizer, and speakers. A search of another residence produced a graphic equalizer, a stereo tuner, and two speakers. Defendant’s fingerprints were on the stereo and equalizer, which were identified by Woodcock’s brother as belonging to Woodcock. Ballistics experts determined that two bullets taken from Woodcock’s body had been fired from a revolver given to police by defendant’s mother. The victim’s car, which had been burned, was found in East St. Louis.

The note found in defendant’s bedroom reads:

“Wednesday’s Plan. Get Wardell or somebody to go in around 10:45 with me. And when he go [sic] to the back, Wardell shoot him. And we clean them out. Money, ticket, medium Pampers. Wardell might want some beer. The get away. Take his keys, pull his car up to the door, put him in, clean blood up and lock door and come to city. I’ll take stereo, EQ, speakers. Then leave him and his keys in car on dark street with no fingerprints. And it’s over.”

Defendant denied writing the note. Police requested that he copy the note, which he did, and when they remarked on the similarity of the handwriting, defendant admitted writing it.

A witness who knew defendant and his half-brother testified that she saw them at the Short Stop store on the evening of the murder, shortly after closing time. She testified that defendant was in the store and jumped back, as if trying to hide. Defendant then came out and told her that Towns wanted her to leave. In a statement to police, defendant stated that Towns had shot Woodcock while he was outside. Defendant indicated that Towns went into the store to talk to Woodcock while defendant waited across the parking lot. He heard a gunshot and went to the front of the store, where he saw Towns shoot Woodcock a second time. Defendant told Towns to come out of the store, but Towns went back in to get the money bag on the counter. Defendant also stated that he and Towns had discussed the robbery several months earlier, at which time they decided that Woodcock would have to be killed because he knew Towns. Defendant further stated that Towns had used their mother’s gun. At trial, defendant denied knowing Woodcock and denied telling police that Woodcock was to be shot because he knew Towns and denied that the car and the money bag were taken. Towns admitted that he shot Woodcock in the head twice but claimed that the shooting was accidental.

The jury was instructed that it could find the defendant guilty of first-degree murder based on either intent to kill, knowledge of a strong probability of death or great bodily harm, or felony murder predicated on armed robbery. Defendant tendered instructions on theft from a person and involuntary manslaughter based on Towns’ testimony that the shooting was accidental. The trial court gave the involuntary manslaughter instruction but refused to give the theft instruction.

Defendant’s only contention on appeal is that the trial court erred in refusing to give his tendered instruction on theft from a person. Defendant maintains that without this instruction, even if the jury believed that Woodcock’s death was the result of an accidental shooting, and that the property was taken as an afterthought, its only option was to find him guilty of armed robbery and therefore of felony murder. Defendant contends because his complete theory of defense was that Woodcock was shot accidentally and the money was taken as an afterthought, he was entitled to an instruction on theft from a person along with the involuntary manslaughter instruction. Defendant argues that although he was not charged with armed robbery, it was the predicate offense for the felony murder charge and theft is a lesser-included offense of armed robbery.

The various districts of the appellate court have been split on this issue, some, including this one, holding that theft is not a lesser-included offense of armed robbery, others holding that it is. Our supreme court recently addressed this issue in People v. Jones (1992), 149 Ill. 2d 288, 595 N.E.2d 1071. Following the reasoning of its earlier decision in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, and the appellate court’s decision in People v. Romo (1980), 85 Ill. App. 3d 886, 407 N.E.2d 661, the court held that the information charging Jones with armed robbery sufficiently alleged the requisite conduct and mental states required for the lesser-included offense of theft. The information in Jones charged, “[the defendant] took property of Lizzie [sic] Harden *** and property of Barbara Clark.” (Jones, 149 Ill. 2d at 290.) Our supreme court held that this conduct established the conduct elements required for theft. The court also held that the mental states required for theft were implicitly set forth in the armed robbery charge.

The rationale for giving an instruction on a lesser-included offense is that a jury, believing that a defendant is guilty of something but uncertain as to whether the more serious offense has been proved, might convict rather than acquit the defendant of the greater offense. (Keeble v. United States (1973), 412 U.S. 205, 36 L. Ed. 2d 844, 93 S. Ct. 1993.) Lesser-included offense instructions are not required in every case but only where the evidence would permit a jury rationally to find the defendant guilty of the lesser offense and acquit him of the greater. However, where the evidence presented in a particular case rationally precludes a finding of guilty on the lesser offense, the lesser-included offense instruction need not be given. (Bryant, 113 Ill. 2d at 507, 499 N.E.2d at 417; see also People v. Castro (1989), 190 Ill. App. 3d 227, 546 N.E.2d 662.) The present case presents such a situation. Defendant maintains that the jury could have found that the shooting was accidental and the money was taken as an afterthought. There is, however, no evidence to support the latter proposition. Towns testified only that he shot Woodcock twice accidentally, but he did not testify that the money was taken as an afterthought. In fact, both Towns and defendant testified at trial that no money was taken. Furthermore, the evidence of the note found in defendant’s bedroom, in his own handwriting, along with the other evidence, unequivocally demonstrates that defendant and Towns went to the convenience store to rob Woodcock. Where a killing occurs during the commission of an armed robbery, the defendant has committed felony murder regardless of whether the shooting was intentional or accidental. (People v. McEwen (1987), 157 Ill. App. 3d 222, 510 N.E.2d 74.) Even if the jury were to believe Towns’ testimony that the shooting was accidental, there is nothing to indicate that this was anything but an armed robbery. For the jury to conclude that this was mere theft would have required them to ignore the evidence and engage in mere speculation. While even slight evidence which supports the underlying theory of defense warrants the giving of a lesser-included offense instruction, mere speculation will not. (People v. Tiller (1978), 61 Ill. App. 3d 785, 378 N.E.2d 282.) A trial court need not give a lesser-included offense instruction where there is no evidence to support it (People v. Moya (1988), 175 Ill. App. 3d 22, 529 N.E.2d 657), and there is no evidence in the present case to support the giving of a theft instruction.

Even assuming, arguendo, that the instruction was required by the evidence, refusal to give an instruction is harmless error and does not warrant a reversal where the evidence is so clear and convincing that the jury could not have reasonably found the defendant not guilty. (People v. Austin (1989), 133 Ill. 2d 118, 549 N.E.2d 331; People v. Moore (1983), 95 Ill. 2d 404, 447 N.E.2d 1327; People v. Hayes (1988), 173 Ill. App. 3d 1043, 527 N.E.2d 1342; People v. Goff (1985), 137 Ill. App. 3d 108, 484 N.E.2d 414.) A note was found in defendant’s bedroom, written by defendant, outlining the plan to rob the convenience store and shoot the victim. Defendant’s fingerprints were found on the stereo taken from the victim’s car. The gun used to kill the victim belonged to the defendant’s mother. Felony murder was only one of the three theories of murder charged. The record clearly demonstrates that there was sufficient evidence to support a conviction on any of the three theories charged. Further, “ ‘where an indictment contains several counts arising out of a single transaction and a general verdict is returned, the effect is that the defendant is guilty as charged in each count.’ ” (People v. Thompkins (1988), 121 Ill. 2d 401, 455-56, 521 N.E.2d 38, 62, quoting People v. Lymore (1962), 25 Ill. 2d 305, 308, 185 N.E.2d 158, 159.) Defendant suffered no prejudice as a result of the trial court’s failure to give the theft instruction. (People v. Lewis (1976), 37 Ill. App. 3d 870, 346 N.E.2d 377.) Given the overwhelming weight of the evidence, we cannot say that the outcome of the trial would have been different had lesser-offense instruction been given.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

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


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MARTIN, Defendant-Appellant.
    Third District
    No. 3—92—0046
    Opinion filed September 4, 1992.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, James Martin, appeals the dismissal of his post-conviction petition. The sole issue on appeal is whether he should have received an evidentiary hearing on his claim that he had not received the effective assistance of counsel. We affirm.

The record shows that the defendant was charged with first degree murder and concealment of a homicidal death (Ill. Rev. Stat. 1991, ch. 38, pars. 9—1, 9—3.1). Thereafter, he agreed to plead guilty to murder in exchange for a 30-year sentence and dismissal of the concealment charge.

According to the factual basis for the plea, the defendant admitted to police that on April 24, 1988, he, Rick Wooten, John Hanson, and Kimberly Ray went to a tattoo party. They left the party around 8 p.m. and went to Wooten’s home. Wooten and Ray then began arguing. After Wooten slapped Ray, he handed the defendant a knife and told him to get rid of her. The defendant said, “No, not with that,” and retrieved a .22-caliber rifle. He and Wooten then made Ray go outside, where the defendant shot her in the head three times.

The defendant further admitted that Wooten told him and Hanson to clean up everything. The men then put the body in the trunk of Ray’s car, drove to an area near Route 6 and Galena Road, and buried it. They later threw the gun into a farm pond and abandoned Ray’s car in Marshall County. Using another car, they returned to Wooten’s home.

The factual basis further disclosed that the defendant later led the police to the burial site. The police also recovered the gun from a farm pond in Peoria County.

Following the presentation of the factual basis, the defendant acknowledged that it was accurate. The trial court accepted the plea and imposed a 30-year sentence. The defendant did not take a direct appeal.

In February of 1991, the defendant wrote a letter to the Peoria County circuit clerk which was construed as a post-conviction petition. Appointed counsel later filed a supplemental petition alleging, inter alia, that the defendant had consumed a large quantity of alcohol and cocaine at the time of the offense. The petition further alleged that trial counsel was ineffective for failing to either discuss an intoxication defense with the defendant or investigate it.

After the State filed a motion to dismiss the petition, the cause came on for hearing. The judge found that based on the record, counsel would not have been ineffective even if he had not discussed the intoxication defense with the defendant. The judge then dismissed the petition.

On appeal, the defendant argues that he raised a significant issue of ineffective assistance regarding his counsel’s failure to investigate an intoxication defense. He therefore contends that he should have received an evidentiary hearing on his petition.

A post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. A hearing can only be held if the petitioner makes a substantial showing of a violation of a constitutional right and the allegations are supported by the record in the case or by accompanying affidavits. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 544 N.E.2d 312.) The dismissal of a post-conviction petition is within the discretion of the trial court. People v. Jackson (1991), 213 Ill. App. 3d 806, 572 N.E.2d 475.

To establish ineffective assistance of counsel, the defendant must show both that his counsel’s performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. (People v. Huante (1991), 143 Ill. 2d 61, 571 N.E.2d 736.) Moreover, in order to assert an intoxication defense, a defendant must show that his drunkenness was so extreme that it suspended his power of reason and rendered him incapable of forming a specific intent to commit the offense. (Ill. Rev. Stat. 1991, ch. 38, par. 6—3.) If the record indicates that the defendant acted with any purpose or rationality, the defense is unavailable. People v. Roesler (1990), 195 Ill. App. 3d 1007, 552 N.E.2d 1242.

According to the factual basis, the defendant gave a detailed confession in which he admitted to choosing a rifle instead of a knife for the murder weapon. He also admitted that he helped bury the body and hide the other evidence. The details of his confession refute his claim that he acted without purpose or rationality. (See People v. Long (1975), 30 Ill. App. 3d 815, 333 N.E.2d 534.) Accordingly, we find that any failure by his counsel to investigate an intoxication defense did not constitute ineffective assistance. The trial court therefore properly denied the petition without conducting an evidentiary hearing.

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

Affirmed.

McCUSKEY and HAASE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS R. GLISAN, Defendant-Appellee.
    Third District
    No. 3—91—0945
    Opinion filed September 1, 1992.
    Rehearing denied September 30, 1992.
    Erik I. Blanc, State’s Attorney, of Pekin (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Ronald Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Thomas R. Glisan, was arrested for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—501(a)(2)). Thereafter, he was notified of the statutory summary suspension of his driver’s license pursuant to section 11—501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 11-501.1). The defendant subsequently filed a petition to rescind the statutory summary suspension and a motion to quash arrest and suppress evidence. Following a hearing, the trial court rescinded the summary suspension and granted the motion to quash arrest and suppress evidence. The State appeals both orders. We reverse.

The record reveals that on May 28, 1991, Pekin police officer Brad Elliot was on patrol when he heard a radio report from the Illinois State Police. The report indicated that the driver of a blue pickup truck headed toward Pekin on Route 29 was suspected of DUI because he “was possibly running vehicles off the road.”

Subsequent to the initial radio report, Officer Elliot heard a second radio report from another Pekin officer. The other officer stated that he was behind two pickup trucks and that another driver had gestured to him to follow the trucks. The other officer then contacted Elliot and asked him to wait at a location ahead of the trucks. Elliot did so and subsequently observed two pickup trucks proceed through an intersection on a yellow light. Elliot further observed that the trucks went slowly through the intersection, and the second truck was only inches behind the first. Elliot then activated his emergency lights and pulled the second truck over.

After the vehicle was pulled over, Officer Elliot noticed that the defendant, who was driving the truck, had a dazed look on his face. While talking to the defendant, Elliot noted the strong odor of alcohol on his breath. Elliot asked the defendant to perform several field sobriety tests. The defendant failed them all and was arrested for DUI. He was then taken to the police station, where he refused to take a breath test.

Following a hearing on the petition to rescind the suspension and the motion to quash arrest and suppress evidence, the trial court concluded that the initial stop was improper. Accordingly, the court rescinded the summary suspension and granted the motion to quash arrest and suppress evidence. The State appeals.

On appeal, the State first argues that the propriety of an investigatory stop may not be questioned at a summary suspension hearing, because such hearings are limited to those issues specifically set forth in section 2—118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1991, ch. 951/2, par. 2—118.1(b)). We disagree.

Although statutory summary suspension hearings are limited to certain statutory issues, the propriety of the underlying stop may always be considered. (People v. Safiran (1992), 229 Ill. App. 3d 639.) Based on our holding in Safiran, we find that it was proper for the court to consider the propriety of the stop.

Here, the trial court concluded that the stop was improper because although the trucks were close to each other as they proceeded through the intersection, they were both turning extremely slowly. The State contends that the trial court erred in concluding that the stop was improper. We agree and therefore reverse.

Police may make investigatory stops of private citizens even though there is no probable cause to make an arrest. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, in order for such a stop to be justified, the police must be able to point to specific articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion.

In the instant case, the police received a report of dangerous and erratic driving by a blue pickup truck. Shortly thereafter, a police officer in the area was signaled by another driver in a manner suggesting that there may have been a problem with the defendant, who was driving a blue pickup truck. A second officer later observed the defendant’s truck turn through an intersection on a yellow light only inches behind another vehicle. Based on these specific articulable facts, we conclude that an investigatory stop was reasonably warranted. Accordingly, we reverse the orders rescinding the summary suspension and granting the motion to quash arrest and suppress evidence, and we remand the cause for further proceedings consistent with our opinion.

Reversed and remanded.

McCUSKEY and HAASE, JJ., concur.


author: JUSTICE COOK JUSTICE KNECHT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD SIMS, Defendant-Appellant.
    Third District
    No. 3—90—0528
    Opinion filed August 28, 1992.

      KNECHT, J., specially concurring.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Elizabeth A. Klug, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

Defendant Ronald Sims was convicted by the circuit court of Knox County of one count of aggravated battery and sentenced to two years of imprisonment. Defendant appeals his sentence, alleging the trial judge failed to realize a consecutive term of probation was a possible disposition for his offense or erroneously believed a sentence of probation would not be punishment for the offense. We disagree and affirm.

A Knox County information charged defendant with two counts of aggravated battery, alleging defendant struck correctional officer George Walter and pushed correctional officer Russell Gibbs. (Ill. Rev. Stat. 1989, ch. 38, par. 12—4(b)(6).) The information was superseded by a two-count bill of indictment. During the bench trial the court dismissed count II, the alleged aggravated battery against Officer Gibbs, and later found defendant guilty of aggravated battery on the remaining count.

Defendant’s motion for new trial argued aggravated battery was not proved beyond a reasonable doubt and that the court erred in denying his motion for a directed verdict. The motion for new trial was denied. At the sentencing hearing the court discussed whether defendant’s offense was probationable, since defendant was already in the Department of Corrections serving three concurrent Cook County sentences. At the court’s suggestion, the court and both counsel reviewed the law during a brief recess. Defense counsel then changed his sentencing recommendation from two years in the Department of Corrections to a term of probation and conditional discharge. The State maintained its recommendation for five years in the Department of Corrections. The court imposed a sentence of two years of imprisonment to be served as a consecutive term as required in section 5—8—4(f) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(f)).

The State argues defendant has waived the issues raised on this appeal by failing to raise them at the sentencing hearing and by failing to file a motion to reduce sentence. A post-sentencing motion is not necessary to preserve error as to sentencing issues. (People v. Hargis (1983), 118 Ill. App. 3d 1064, 1083, 456 N.E.2d 250, 261; contra People v. Macke (1992), 224 Ill. App. 3d 815, 816, 587 N.E.2d 1113, 1114.) Where it is alleged merely that a sentence is excessive, and not that evidence was improperly considered at the sentencing hearing, a contemporaneous objection at the sentencing hearing is not required for appeal. Where defendant asks for probation but the court sentences him to two years’ imprisonment, it does not appear that a useful contemporaneous objection could be made. A motion to reduce sentence might complain one more time of the failure to award probation, but such a motion would add nothing to the original request, and provide the trial court with no opportunity which it had not already enjoyed. Defendant’s position as to sentencing was made known to the court and was not waived.

On the merits we would find the trial court did not commit an abuse of discretion. Sentencing is a matter of judicial discretion (People v. Goodwin (1991), 208 Ill. App. 3d 829, 831, 567 N.E.2d 666, 667), and a reviewing court’s power to alter or reduce a sentence pursuant to Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) is limited to those cases in which a trial court has abused its discretion. (People v. Streit (1991), 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353.) It is well settled that a trial judge’s sentencing decisions are entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) The trial judge is in a better position than a reviewing court to impose an appropriate penalty since it has firsthand observation of the defendant and consideration of such factors as defendant’s credibility, demeanor, moral character, mentality, social environment, habits, and age. (Streit, 142 Ill. 2d at 19, 566 N.E.2d at 1353.) The trial judge also should consider defendant’s history, rehabilitative potential, the seriousness of the offense, the need to protect society, and the need for deterrence. Goodwin, 208 Ill. App. 3d at 831, 567 N.E.2d at 667.

Defendant’s first contention is that the trial judge failed to realize that he could impose a consecutive term of probation. A careful reading of the transcript from the sentencing hearing shows that the judge was aware that probation was available under section 5—8—4(f) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—4(f)) but determined that imprisonment was necessary. Before sentencing defendant the judge went to great lengths to determine whether probation was available to defendant, since defendant was already incarcerated. The court and counsel even recessed to research the law. Upon return, defense counsel recommended probation for defendant, and the State did not argue probation was not possible. The judge noted that the Department of Corrections had revoked approximately a year and a half of defendant’s good time as a result of defendant’s actions against the correctional officers. The judge determined that probation would not be a sufficiently severe punishment for defendant’s offense since defendant threatened serious bodily harm, and concluded a prison sentence was necessary given the seriousness of the offense. The judge stated that a prison must be able to maintain discipline, and that other individuals must be deterred from committing similar acts.

The circumstances here are far different than those cases cited by defendant where the judge (1) applied the wrong statute (People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812 (trial judge under misapprehension that he was prohibited from imposing a term of periodic imprisonment)); (2) improperly applied the statute (People v. Brown (1990), 196 Ill. App. 3d 1, 553 N.E.2d 110 (court imposed improper consecutive sentences where multiple sentences of probation were to be served concurrently)); or (3) failed to consider an element important in sentencing defendant (People v. Omatto (1980), 88 Ill. App. 3d 438, 410 N.E.2d 588 (court unaware at sentencing hearing that difference between maximum and minimum security was to be based on the sentence given by the trial judge)).

Defendant alternatively argues that the judge erroneously believed probation, to be served following a current penitentiary term, would not constitute punishment for a crime committed in the penitentiary. Defendant alleges that the judge substituted his own policy or judgment that a particular offense must always draw a term of imprisonment. Defendant cites People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168, where the appellate court found abuse of discretion because the trial judge had announced at the presentencing hearing that he subscribed to a personal and inflexible policy whereby certain crimes were not probationable. In contrast, the judge here took considerable time and effort to weigh the mitigating and aggravating factors before issuing his sentence. The judge also took great care to determine that probation was available for defendant; his decision to impose imprisonment was not an abuse of discretion.

We affirm defendant’s sentence of two years of imprisonment.

Affirmed.

STEIGMANN, J., concurs.

JUSTICE KNECHT,

specially concurring:

Defendants who have some complaint regarding their sentence should be required to specifically raise that complaint at sentencing or file a motion to reconsider or reduce sentence. (People v. Macke (1992), 224 Ill. App. 3d 815, 587 N.E.2d 1113.) The teachings of People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, and People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, logically and legally call for this result.

Defendants who fail to challenge their eligibility for Class X sentencing, based on the commission dates of their prior felonies, at their sentencing hearing have been held to have waived the issue. (People v. Williams (1992), 149 Ill. 2d 467.) I believe the defendant here has waived consideration of whether his sentence is excessive because he did not file any motion after sentencing directed at the sentence.

In my view some prosecutors and defense counsel pay too little attention to sentencing hearings and the consequences of those proceedings. One striking example is the frequency of appeals which raise the question of some miscalculation of a defendant’s credit for time already served in jail. The case is not over simply because defendant has pleaded guilty or been found guilty by a judge or jury. The sentencing hearing is a significant part of the trial process, and both the People and the defendant deserve vigorous advocacy by their representatives in securing a sentence that is both fair and technically correct.

If a defendant believes his sentence is excessive, or he did not receive full credit for time served, then his concerns should be brought to the trial court’s attention. To suggest trial judges will routinely deny such motions or that defendants will only rehash what has already been presented are criticisms or observations that might be made as to any post-trial motion. We are not disclosing family secrets to suggest trial judges who have carefully considered a sentence are not likely to change their minds. Some cynics might opine that trial judges are unlikely to admit their mistakes so that it is unproductive and wasteful to point out those mistakes after sentencing.

That is a view I do not hold. If a defendant thinks his sentence is excessive, then he ought by motion to so state in specific terms with reasons for his position. A hearing on the motion will permit the judge to reconsider and either reiterate those important factors which prompted the sentence imposed, or actually make some change in the sentence if it is excessive under the law and facts. Then, the record on appeal will be clear.

This will be no more burdensome than any of the other post-trial activities the law has so long countenanced in both civil and criminal trials. It will give the trial court the opportunity to correct any error that might have occurred, and make for a better appellate record.

I join in the majority decision because the trial judge did not abuse his discretion, but I do not agree with my colleagues’ rejection of Macke.


author: JUSTICE GORMAN

text:
    FAMILY TAILORED HOMES, INC., d/b/a Remax, Inc., Plaintiff-Appellee, v. WILLIAM MANFIELD, Defendant-Appellant.
    Third District
    No. 3—91—0818
    Opinion filed September 4, 1992.
    Klockau, McCarthy, Ellison & Marquis, P.C., of Rock Island, and Lester Weinstine, of Weinstine & Shirk, of Morrison (Robert L. Ellison, of counsel), for appellant.
    Kelli D. Walker, of Pignatelli & Pignatelli, of Rock Falls (Louis F. Pigna-telli, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

Plaintiff Family Tailored Homes, Inc., doing business as Remax, Inc., sued defendant William Manfield to recover damages for breach of a listing agreement. The trial court rendered judgment for plaintiff. We affirm.

Plaintiff Family Tailored Homes, Inc., d/b/a Remax, Inc., sued defendant William Manfield for money damages for an alleged breach of an exclusive listing agreement. In its original complaint, plaintiff alleged, among other things, that under the terms of its listing agreement and renewals thereof with defendant, plaintiff had the right to a commission on the sale of defendant’s residence.

At trial, the testimony revealed that the original listing agreement was extended three times. The final extension expired on July 31, 1988. Under the terms of the agreement, plaintiff had the right to a commission on the sale of the house if sold within 45 days after expiration of the listing to any prospect introduced to the property by the broker.

Robert Corwell, one of plaintiff’s principals, testified that on July 31, 1988, he and defendant discussed an offer on defendant’s home and discussed Tim Austin as a prospective purchaser of the residence. He stated that that same evening, his wife, Diane Corwell, a real estate broker with plaintiff, discussed extending the listing agreement with defendant. He testified that during the term of the agreement he did not notify defendant in writing that Tim Austin was a prospect.

Diane Corwell testified that around March 11, 1988, she told defendant that one of plaintiff’s brokers had spoken with Susan Austin, Tim Austin’s wife, who expressed interest in the property. Mrs. Corwell further testified that on July 31, 1988, and on August 2, 1988, she again told defendant that she believed that Tim Austin was still a viable prospect. She also stated that on August 2, 1988, she drew up a listing agreement extension to which defendant had her add the words “Seller owes no commission if sale is made by him and buyer has not looked with an agent.” She testified that Tim Austin did not look at the property with any of plaintiff’s agents and that she had never notified defendant in writing that Austin had been introduced to the premises by plaintiff. She further testified that the listing agreement provided that defendant was to disclose any prospects that he had on the premises.

Grace Merlak, a real estate broker with plaintiff, testified that on March 1, 1988, she spoke with Susan Austin about buying defendant’s residence. She stated that on March 4, 1988, and on July 29, 1988, she called Tim Austin about the Manfield listing being available. She stated that she did not show either of the Austins the home.

Mary Paul Long, defendant’s former wife, testified that she or defendant contacted Susan Austin about viewing the house and that in June 1988, Susan Austin did see the residence. Long also stated that in early July 1988, Tim Austin viewed the house as a potential purchaser and discussed the mechanical aspects of the house with defendant. Long testified that defendant told her, prior to July 31, 1988, that he had reached an agreement with Tim Austin and that he was having a contract prepared for her to sign. She testified that there were frequent phone calls between Tim Austin and defendant regarding the house and that defendant was extremely secretive regarding the transaction.

Tim Austin testified that his former home was about 50 yards from defendant’s residence. He stated that plaintiff’s “For Sale” sign was in the defendant’s yard in March or April 1988. He said that in early July, he contacted defendant to find out if the property was still listed and told him that when the listing was up, he might call defendant. He testified that he made no offer to purchase the residence during July 1988. He also testified that in July 1988 one of plaintiff’s agents telephoned him regarding any interest he might have in the listing and that he told the agents that he was not interested.

Austin further stated that on August 1, 1988, he called defendant and on August 2, 1988, he viewed the house and orally offered to purchase the property. Austin stated that his $3,000 earnest money check was dated August 2. He said that he then called his attorney, who drew up a real estate contract which he and his wife signed on August 3. Austin further stated that after the contract was drafted, defendant wrote onto the contract the words “Buyer affirms that they have not been shown this property through the agency of a real estate broker, nor have they been shown this property by anyone at any time prior to August 1, 1988.” Austin testified that he assented to the additional language.

Defendant testified as to the listing agreements. He also stated that on July 31, he told Diane Convelí that he was going to try to sell the house himself. He stated that he placed a “For Sale By Owner” advertisement in the local newspaper which ran August 1 through 3, 1988. Defendant testified that at no time before August 1, 1988, did he tell his wife that he had sold the house to Tim Austin.

The trial judge rendered judgment for plaintiff and granted plaintiff’s motion to conform pleading to proof.

Defendant now appeals.

Defendant first argues that he was not fairly apprised by the pleadings of plaintiff’s theory that the sale to the Austins took place within the primary time period of the extension agreement.

Section 2—616(c) of the Code of Civil Procedure provides that “[a] pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—616(c).) The allowance of amendments following the presentation of evidence rests within the sound discretion of the trial court, and the ruling of the trial court will not be disturbed absent an abuse of discretion. (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628.) The trial court’s power to allow amendments should be freely exercised so that a party may fully present its cause of action. (Maus v. Marathon Petroleum Co. (1992), 229 Ill. App. 3d 864, 594 N.E.2d 393.) Furthermore, a factor to be considered in ruling on a motion to amend pleadings is whether the motion will prejudice or surprise the other party. Trinity Bible Baptist Church v. Federal Kemper Insurance Co. (1991), 219 Ill. App. 3d 156, 578 N.E.2d 1375.

In the instant case, plaintiff alleged the existence of the written listing agreement and extensions thereof and alleged that the purchaser was solicited under the terms of the agreement. Even though the language in the complaint was vague, all of the contracts between plaintiff and defendant were attached to the complaint as exhibits and were incorporated into the complaint. The times and places for any possible liability were pled through the attached documents. Furthermore, at trial, proof was presented by plaintiff that the sale was arranged prior to the expiration of the listing agreement. Mary Paul Long testified that defendant told her before July 31, 1988, that he had reached an agreement with the Austins to purchase the residence and that the house had been sold to them. Finally, defendant did not show that the allowed amendment prejudiced him. Accordingly, we cannot say that the trial court abused its discretion in allowing plaintiff an amendment to conform the pleadings to the proofs.

Defendant next argues that the finding that the sale took place within the period of the listing agreement was against the manifest weight of the evidence.

Where findings of fact must necessarily be determined from the credibility of the witnesses, it is particularly true that an appellate court will defer to the findings of the circuit court unless they are against the manifest weight of the evidence. Chicago Investment Corp. v. Dolins (1985), 107 Ill. 2d 120, 481 N.E.2d 712.

In this case, there was direct evidence that the sale took place within the period of the listing agreement. Mary Paul Long testified that defendant told her before the end of July that the house had been sold to Tim Austin. She stated that he made this comment to her after she had overheard the telephone calls at his office between defendant and Tim Austin. She testified that she told him she was concerned because the listing agreement had not expired and that defendant said that he had everything taken care of and there was not a problem. She also testified that she knew when Tim Austin and defendant agreed to the purchase of the house based on the frequent telephone calls between the two and the fact that defendant was extremely secretive with regard to the transaction.

There was also circumstantial evidence that the agreement was reached prior to the expiration of defendant’s listing. As the trial court noted, defendant ran the advertisement for his house for only three days, from August 1 through 3, even though the home had been unsold for months while listed prior to that time. We cannot say that the trial court’s finding that the sale took place within the listing period was against the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court of Whiteside County is affirmed.

Affirmed.

BARRY, P.J., and SLATER, J., concur.


text:
    EAST PEORIA COMMUNITY HIGH SCHOOL DISTRICT No. 309, Plaintiff, v. GRAND STAGE LIGHTING COMPANY et al., Defendants (Union Roofing et al., Counterplaintiffs; East Peoria Community High School District No. 309 et al., Counterdefendants; Grand Stage Lighting Company, Third-Party Plaintiff-Appellant; Commerce Bank, N.A., Successor to The First National Bank of Peoria, Third-Party Defendant-Appellee).
    Third District
    No. 3—91—0870
    Opinion filed September 4, 1992.

      Eric S. Rein, of Schwartz, Cooper, Kolb & Gaynor, of Chicago, and William R. Kelly, of Peoria (Bret A. Rappaport, of counsel), for appellant.
    Baymiller, Christison & Radley, of Peoria (Andrew W. Covey, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This action was brought by plaintiff Grand Stage Lighting to impose a constructive trust on funds which defendant First National Bank of Peoria set off from a customer-debtor’s general business account. The trial court granted summary judgment for defendant. We affirm.

Tousley-Iber was a general contractor for commercial real estate. It maintained a business checking account at defendant bank. It received a number of loans from defendant, and defendant had a perfected security interest in Tousley-Iber’s accounts, notes, and contracts receivable. The security agreement secured all obligations of Tousley-Iber to defendant. At least three of the notes given by Tous-ley-Iber to defendant provided that defendant “shall have the right of set-off against any deposits and other sums *** now or in the future *** owing” to Tousley-Iber. Defendant received written monthly financial reports and annual audited financial statements from Tousley-Iber.

In 1987, Tousley-Iber agreed to be construction manager of various improvements on high school buildings in East Peoria High School District No. 309 (School). In June 1987, plaintiff submitted a bid to Tousley-Iber for stage renovation work, which bid was accepted. Tousley-Iber promised to pay plaintiff $144,614, but did not offer any collateral or other form of security to secure that promise.

After September 1987, defendant became concerned about Tous-ley-Iber’s financial situation and began to monitor it more closely. On November 18, 1987, Tousley-Iber deposited a check from School in the amount of $124,787.83. On November 19, 1987, Tousley-Iber requested defendant’s approval to write checks payable to the subcontractors on funds received from the School project. Tousley-Iber submitted a requested cash flow analysis report, which showed the amount owed to Tousley-Iber on the project, the amount which Tous-ley-Iber owed to the subcontractors, and the resultant shortfall. On November 20, 1987, Tousley-Iber owed defendant a total of $532,000, principal plus accrued interest. On that same day, defendant informed Tousley-Iber that, pursuant to its right of setoff, it was removing the sum of $179,650.39 from Tousley-Iber’s general business account to apply to the debt it owed to defendant.

On December 1, 1987, plaintiff made demand on School and Tous-ley-Iber for payment of $145,949; they refused to pay. On January 20, 1988, plaintiff for the first time served Tousley-Iber and School with its notice of claim of lien. Litigation ensued between School, plaintiff, and other subcontractors.

In October 1989, plaintiff filed an amended third-party complaint against defendant to impose a constructive trust on the funds which defendant set off. It alleged that the setoff was wrongful because it knew plaintiff had an interest in the funds. After the defendant’s motion to dismiss was denied, the parties filed cross-motions for summary judgment. In July 1991, the trial court granted defendant’s motion and denied plaintiff’s motion.

Plaintiff now appeals.

The only issue for review is whether defendant’s setoff was wrongful.

Plaintiff argues that because defendant knew or should have known that the funds in Tousley-Iber’s account did not belong to Tousley-Iber, its setoff was wrongful and a constructive trust should be imposed on the funds. We disagree with plaintiff.

Under Brandt v. Uptown National Bank (1991), 212 Ill. App. 3d 621, 571 N.E.2d 531, unless money deposited in an account is held in an actual or constructive trust, a bank’s knowledge of the derivation of the money does not limit its right of setoff. There, a materials supplier which had been left unpaid by its subcontractor obtained a judgment against the general contractor, forcing it to pay as principal on its payment bond. The general contractor then sued the subcontractor’s bank, claiming that the bank wrongfully set off funds in the subcontractor’s account. The general contractor argued that because the bank knew that the funds in the subcontractor’s account were derived from the construction project in which all were involved, the bank was under an obligation to see that the funds were applied to the debts owed to the subcontractor’s suppliers before the funds could be applied to the debt owed to the bank. The court pointed out that the money deposited in the subcontractor’s account was not held in an actual or constructive trust and rejected plaintiff’s argument. It stated that “[sjhould the plaintiffs’ reasoning be carried to its logical conclusion, any debtor of a party who has a checking account would be deemed to have an equitable ownership in the funds in that account, thus limiting a bank’s right to setoff.” Brandt, 212 Ill. App. 3d at 626, 571 N.E.2d at 535.

In the instant case, plaintiff does not show that the money deposited in Tousley-Iber’s account was held in an actual or constructive trust for plaintiff. Neil Tousley, a former officer of Tousley-Iber, testified that, in fact, the funds in the general business account were all commingled. As in Brandt, plaintiff here has no basis for his supposition that it has equitable ownership of funds in Tousley-Iber’s account so as to limit the plaintiff’s right to setoff.

Plaintiff’s reliance on Gluth Brothers Construction, Inc. v. Union National Bank (1988), 166 Ill. App. 3d 18, 518 N.E.2d 1345, is misplaced because there, the bank was aware that an express written trust applied to certain funds which it set off.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

BARRY, P.J., and McCUSKEY, J., concur.