author: Mr. JUSTICE CRAVEN

text:
    Joseph R. Levesque, Plaintiff-Appellee, v. Daniel Walker et al., Defendants-Appellants.
    (No. 12300;
    Fourth District
    December 30, 1974.
    WffKam J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellants.
    Rifken & Shimeall, of Schaumburg (James F. Shimeall, of counsel), for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Sangamon County declaring that the termination of plaintiffs employment by the State officer defendants was illegal and the entry of a declaratory judgment to the effect that plaintiff was entitled to back pay and other employment rights and benefits and ordering his reinstatement ab initio. On the motion of the named State officer defendants, this court entered an order staying the order of the circuit court.

Plaintiff was an employee of the Department of Aeronautics in a position classification known as Administrative Assistant III. He was at the time of his discharge in a probationary status by reason of certain position classification charges initiated by the Department and approved by the Department of Personnel.

Plaintiff was initially appointed Assistant Director of the Department of Aeronautics in 1969. That position is an exempt position by reason of the provisions of section 4d(l) of the Personnel Code (III. Rev. Stat. 1969, ch. 127, par. 63bl04d(l)). In 1970, the plaintiff’s job title was changed from Assistant Director to Administrative Assistant III. Such change was accompanied by an increase in salary. The Administrative Assistant III was at the time that the plaintiff assumed the position an exempt position. In 1972, authorized procedures were initiated to take the Administrative Assistant III classification from the exempt classification and to place it under Jurisdiction B of the State Personnel Code, and, in effect, giving the position and plaintiff as its occupant, the tenure rights provided for in the Personnel Code. At the time of this administrative action, two new positions referred to as Executive IV were created in thé Department of Aeronautics and these were to be exempt positions. The Executive IV positions existed only in the organizational chart of the Department of Aeronautics and were never filled. The existence of those positions was a basis for removing Administrative Assistant III from an exempt to a protected status.

According to the testimony in this record, with the creation of the two Executive IV positions there were six executive positions in the Department of Aeronautics which in 1973 consisted of some 55 employees, including the executives. In January 1973, the governor, by an executive order, required the executive officers of departments of State government to cut back on expenditures and to follow such cutbacks by budgetary changes for the upcoming fiscal year. In the Department of Aeronautics, it was determined this would be effected by the abolition of some positions, including plaintiffs Administrative Assistant III position. In January 1973, the payroll of the Department was reduced from 55 to 49 employees. There is some confusion in this record by reason of the fact that Administrative Assistant III was sometimes loosely referred to as a “deputy director.” Eugene C. Utz, an employee of the Department of Aeronautics, testified with reference to the organizational chart of the Department, the changes that were made, the positions that were abolished, the reason for the abolition, and the consequent compliance with the order for fiscal restraints made necessary by the executive order. The record is clear that the position from which the plaintiff is a probationary employee was discharged has not been re-created and that the duties have been absorbed by other employees. Plaintiff was relieved of his duties on January 26, 1973, and placed on a leave of absence until February 28, 1973. On the latter date, plaintiff’s right in the State Employees’ Retirement System became fully vested. On March 3, 1973, plaintiff was notified of his layoff under an effective date of February 28, 1973. After exhausting his administrative remedies, plaintiff instituted the instant proceeding contending noncompliance with the statutes and the rules and regulations of the Civil Service Commission and further contending that his layoff was politically motivated. Prior to the issuance of the final order here under appeal, the trial court entered a temporary injunction and in the order for temporary injunction made certain findings, one of which was that the plaintiff was advised that he was being “fired” because of his prior and present affiliation with the Republican Party. The final order makes no finding with reference to such issue but rather concludes that the plaintiff was improperly severed from his position and that such severance was illegal.

Plaintiff’s position as an Administrative Assistant III in the Department of Aeronautics was abolished in accordance with the procedures for abolition of positions provided for in the Personnel Code.

In Powell v. Jones, 56 Ill.2d 70, 305 N.E.2d 166, the Illinois Supreme Court discusses at length the due process requirements relevant to layoff of certified employees and concluded that such employees’ interests in continued public employment were safeguarded by due process guarantees. However, the court concluded that the requirement of due process under-such circumstances is “necessarily proportional to the weight of that interest and balancing it against the counter-vailing interests of society in effective and efficient governmental operation.” In the course of its opinion in Poivell, the court did note and emphasized that the certified employees there involved, fully protected by tenure, did not claim political motivation or infringement of freedom of speech in connection with the layoff and that its holding in Powell should not be interpreted as indicative of an opinion as to the validity of layoffs in cases where such issue might be raised.

Such issue is clearly raised in this case in the pleadings and by the evidence. It cannot be said that the evidence compels the conclusion that the abolition of this position was motivated solely out of politics. It can be said that the position was abolished in-compliance with the statutory scheme for abolition of position.

In Chestnut v. Lodge, 77 Ill.App.2d 281, 288, 222 N.E.2d 36, in a case involving abolition of fully protected, as distinguished from probationary, positions, we noted:

“We agree that motive is relevant to an inquiry concerning the propriety or actuality of job abolition under civil service law. Where such motive is determined to exist, its effect is to reduce the amount of evidence required to establish an arbitrary or capricious discharge of an employee purportedly ‘for cause’ or the continued existence of a job purportedly abolished. We hold, however, that the existence of political motive alone is not such evidence of Trad faith’ as that phrase is used to make void an otherwise valid and legal discharge or abolition of position. ‘Bad faith’ is a mixture of motive and result and exists where an imperfect discharge or layoff, which fails to meet the statutory tests or the requirements of the rules, appeared to be politically motivated.
There is no imperfection in the procedure used to accomplish the layoff of these plaintiffs. There has been compliance with the statutes and the regulations. The positions are concededly abolished and the reorganization is not only apparent but real. The proof of political motive, without more, is insufficient to overcome the existing presumption that the abolition is made in good faith. O’Neill v. Fitzsimmons, 114 Ill.App. 168, aff’d, Fitzsimmons v. O’Neill, 214 Ill. 494, 73 N.E. 797 (1905).” 77 Ill.App.2d 281, 288-289.

In this case, as in Lodge, there is an allegation of political motive, and there is testimony by the plaintiff that his position was abolished because of political considerations. The evidence is far from conclusive upon that issue and, as in Lodge, is clearly insufficient to overcome the existing presumption that the abolition is made in good faith and in keeping with the order for fiscal restraint imposed upon the Department of Aeronautics by the executive order. Accordingly, the judgment of the circuit court of Sangamon County reinstating the plaintiff to his position must be, and tide same is, reversed.

Judgment reversed.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SMITH.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Frank Kreisa, Defendant-Appellant.
    (No. 12234;
    Fourth District
    December 30, 1974.
    Marvin H. Gesell, Public Defender, of Bloomington, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington, and Steven M. Helm, Senior Law Student, for the People.
   Opinion by

Mr. JUSTICE SMITH.


text:
    The People ex rel. Kenneth Baughman, Petitioners-Appellants, v. Lawrence Eaton et al., Respondents-Appellees.
    (No. 12358;
    Fourth District
    December 30, 1974.
    Kenneth E. Baughman, pro se.

    Lawrence Eaton and Hugh Finson, pro se.

   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

In June of 1973, petitioner filed a complaint for an injunction seeking to restrain the respondents, the State’s Attorney and the assistant State’s Attorney of Piatt County, repectively, from participating in certain proceedings. A preliminary injunction was denied, and ultimately a motion to dismiss the complaint for an injunction was allowed. Thereafter, the present proceeding was commenced by the filing of an amended petition for the appointment of a special State’s Attorney. This petition sought to have the respondents enjoined from prosecuting certain alleged misconduct and sought the appointment of a special State’s Attorney to conduct an investigation before a special grand jury. In the petition, allegations were made of alleged misconduct by certain named officials or former officials. The petition also made allegations with reference to the conduct of the State’s Attorney with reference to some private representation.

It is not necessary for a decision that we repeat here the allegations made in the petition. It should be noted, however, that the allegations are not of specific facts but rather state suspicions or “a large suspicion” or contain such phrases as an allegation that illegal action “may be” involved, “this being premised only upon suspicion.” In one instance, the petition alleges:

“[I]t has been brought to the Petitioner’s attention certain facts which may establish probable cause for the violation of law on behalf of unnamed individuals in respect to the following laws:”

This allegation is followed by references to statutory provisions relevant to bribery in the Criminal Code and references to paragraphs 3 and 4 of chapter 102, and paragraphs 3 — 14—4 and 3 — 14—5 of chapter 24, of the Illinois Revised Statutes, the year- being not specified, but we presume Illinois Revised Statutes 1973.

The petition also makes reference to certain grand jury proceedings in Piatt County and alleges that the respondent Eaton “presented witnesses in a systematic manner in an effort to discredit the testimony” of a named witness relative to an alleged bribe. Ultimately, a motion to dismiss the petition was allowed. This appeal is from the order finally entered.

In view of the serious nature of the allegations in the petition, although conclusionary in nature, this court requested briefs from the attorney general and the Illinois State Bar Association as amici curiae. These briefs, aside from procedural issues, conclude that upon this record there was no abuse of discretion in the order refusing the relief requested in the petition. This court is appreciative of the comprehensive briefs filed by amici curiae.

A private citizen may file a petition for the appointment of a special prosecutor by reason of the provisions of section 6 of “An Act in regard to attorneys general and state’s attorneys” (Ill. Rev. Stat. 1973, ch. 14, 6). (See also People v. Howarth, 415 Ill. 499, 114 N.E.2d 785.) Such petition calls tire attention of the court to circumstances that may warrant the appointment of a special prosecutor. (Hutchens v. Wade, 13 Ill.App.3d 787, 300 N.E.2d 321.) In the last cited case, we noted:

“The appointment of a special state’s attorney involves the exercise of judicial discretion in the determination of whether a contingency authorizing the exercise of such power has arisen. (Lavin v. Commrs. of Cook County (1910), 245 Ill. 496, 92 N.E. 291. See also People v. Sears (1971), 49 Ill.2d 14, 273 N.E.2d 380.) The jurisdiction of the trial court in such a matter may be initiated by the petition of the state’s attorney or by the petition of a citizen. (People v. Howorth (1953), 415 Ill. 499, 114 N.E.2d 785.) There is dicta in People v. Northup (1914), 184 Ill.App. 638, to the effect that the jurisdiction of a court to appoint a special state’s attorney may be invoked even upon the court’s own motion. In any event, for a meaningful exercise of judicial discretion, the court’s attention must in some way be directed to the subject matter requiring a decision.” 13 Ill.App.3d 787, 789-790; 300 N.E.2d 321, 322-323.

We conclude that the denial of the petition is an appealable order. Clearly the denial of the petition calls for the exercise of judicial discretion, and the denial is a final termination of the proceeding. Availability of appeHate review is a necessary ingredient of that proceeding.

Upon this record, we cannot say that the court abused its discretion in the denial of the petition. As noted, the allegations, though serious, are stated in terms of conclusions or suspicions, rather than in terms of a pleading relating to specific facts. Inasmuch as the order of the circuit court denying the petition is required to be affirmed, we need not consider certain pending motions relating to this case. Accordingly, it is the order of this court that the judgment of the circuit court of Piatt County be, and the same is, affirmed.

Judgment affirmed.

SMITH, P. J., and KUNCE, J., concur.


author: Mr. JUSTICE CRAVEN Mr. JUSTICE SMITH,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John L. Simpson et al., Defendants-Appellants.
    (No. 12463;
    Fourth District
    December 30, 1974.

      SMITH, J., dissenting.
    Gary L. Haddock, of Pittsfield, for appellants.
    William E. Lowry, State’s Attorney, of Pittsfield, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendants John L. Simpson and David R. Waggoner were indicted for a violation of section 5(c) of the Cannabis Control Act (Ill. Rev. Stat. .1971, ch. 56V2, par. 705(e)), which makes it unlawful to knowingly de'liver more than 500 grams of a substance containing cannabis. After a bench trial, defendants were found guilty as charged. They were each sentenced to the Department of Corrections for an indeterminate term of 1 to 3 years. Defendants appeal from their judgment of conviction.

On appeal, defendants urge three issues: (1) that the Cannabis Control Act is unconstitutional; (2) or, in the alternative, that if the statute is constitutional, then their guilt was not established beyond a reasonable doubt; and (3), their jury waiver was not voluntarily given.

On September 1, 1972, defendants were arrested by several Illinois Bureau of Investigation (IBI) agents for unlawful delivery of more than 500 grams of substance containing cannabis. On September 5, 1972, the State’s Attorney executed an “information” charging defendants, and on that same date, an “arraignment” was held thereon. Therein defendants were found indigent, counsel was appointed, and defendants pleaded not guilty to the charge. On October 17, 1972, defendants filed a motion for discovery, which was granted by the court. The State was ordered to comply with the motion by November 28, 1972. However, on that date, the State filed a motion for continuance of discovery order. The basis for this motion was that defendants had not been indicted for the charges pending, nor had they waived indictment; and that under Supreme Court Rule 411 (Ill. Rev. Stat. 1971, ch. 110A, par. 411), the criminal discovery rules do not become applicable until after indictment or information, and they will not operate prior to or in the course of a preliminary hearing. The State requested that the continuance be given until such time defendants are indicted by a grand jury or they waive indictment. The record reveals that this motion was never ruled upon by the court.

On December 27, 1972, defendants were indicted. An arraignment on the indictment was held on January 5,1973, and defendants again pleaded not guilty to the charges. At the conclusion of the hearing, the State filed a motion for discovery and a request for notice of alibi defense.

Defendants’ trial was set for February 13, 1973. On February 6, 1973, the State answered defendants’ request for a discovery that originally had been filed, on October 17, 1972. Therein the State disclosed the names of six witnesses — all of whom were IBI agents — listed certain evidence held by the State, and had appended thereto an IBI prosecutive summary, two IBI investigative memorandums, two surveillance memorandums, IBI arrest data sheets on both defendants, and a report by Kenneth Vail, an IBI chemist, concerning the chemical content of the two brown paper bags taken from defendants when arrested.

On February 13, defendants’ trial was reset for February 20. On the 20th, defendants requested another continuance to be set until the next jury setting. The basis of the motion was that the State had not complied with discovery until February 6, that discovery was voluminous, and defense counsel had had inadequate time to prepare a sufficient defense. Counsel noted that all of the State’s witnesses were located in Springfield. Moreover, counsel had not been able to recover the contents of the two paper sacks for the purpose of having it analyzed by an independent expert. After counsel’s argument, the following colloquy took place:

“THE COURT: The number of this case is 72-CF-12, and it has been on a while and of course the Court has continued the jury setting one week for the specific purpose of affording the defendants more time. Unless there is some definite prejudice, I see none, the motion will not be allowed.
THE COURT: Gentlemen, are you ready to proceed on People vs Simpson and Waggoner?
MR. LOWRY: We are ready, your Honor.
MR. HADDOCK: Your Honor, again we are not ready to proceed and have had no opportunity to contact any of the State’s witnesses. Probably to preserve that point for appeal it will be necessary to go through the mechanics of the trial. At this time on behalf of Mr. Simpson and Mr. Waggoner I wish to explain to them what the situation is and see what they wish to do. My problem is they want to waive a jury trial in order to give opportunities to consult with the witnesses. I think it puts them in a poor position; in order to preserve my points they have to go to trial. [Emphasis supplied.]
THE COURT: I have no particular specific showing that there is any prejudice that will accrue to these defendants and the motion is overruled. And we are ready to start the trial.
MR. HADDOCK: Your Honor, I ask for a few minutes to consult with the defendants.
THE COURT: Very well.
[Recess]
MR. HADDOCK: Please the Court I have talked to Mr. Simpson and Mr. Waggoner about their case and at this time they offer to waive their right to a jury trial.”

Thereafter, defendants waived their right to a jury trial in open court. The court then set May 3, 1973, as the date for defendants’ bench trial. On that date, defendants filed a motion to dismiss the indictment for various reasons. The motion was denied; thereafter the bench trial commenced.

In the course of the trial, the State called Kenneth Vail, who testified regarding the chemical analysis of the two bags of contraband seized from defendants. Also, IBI agents Gully, Sandusky, and Tipton testified' concerning the actual encounter with defendants. They detailed the preliminary negotiations and other events surrounding their attempt fo purchase the contraband from defendants. They also testified'extensively about the arrest itself. After the State rested its case, defendants offered' an oral motion for directed verdict. This was denied. Then the defense' rested. No closing arguments were given due to the extensive nature of the argument on the motion for directed verdict.

The court found defendants guilty of the offense of unlawful delivery of cannabis and defendant Simpson was also found guilty of the “offense of unlawful use of weapons as alleged in the indictment.” The record does not contain such charge either by way of criminal complaint or indictment.

On June 22, 1973, a hearing was held on defendants’ motion for a new trial. That motion was denied, and thereafter a presentence hearing was held. At the conclusion of the hearing, the court sua sponte continued the hearing until July 10, 1973, so that further investigation could be completed to determine whether the defendants were “old experienced peddlers” or merely neophytes as they claimed. On July 10, the court sentenced both defendants to an indeterminate term of imprisonment of 1 to 3 years.

Defendants urge that the Cannabis Control Act is unconstitutionally vague; that it fails to adequately apprise an individual of what constitutes a violation of the provisions of the Act relating to manufacture and delivery of cannabis, and what the penalties will be.

Specifically, defendants were charged with violation of section 5(e) of the Act which states:

“It is unlawful for any person knowingly to manufacture, deliver, or possess with intent to deliver, or manufacture, cannabis. Any person who violates the section with respect to:
ft ft ft
(e) more than 500 grams of any substance containing cannabis is guilty of a Class 2 felony.” 111. Rev. Stat. 1973, ch. 56%, par. 705(e).
Section 3(a) of the Act in question defines cannabis as follows:
“As used in this Act, unless the context otherwise requires:
(a) ‘Cannabis’ includes marihuana, hashish and other substances which are identified as including any parts of the plant Cannabis Sativa, whether growing or not; the seeds thereof, the resin extracted from any part of such plant; and any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other cannabinol derivatives, including its natural occurring or synthetically produced ingredients, whether produced directly or indirectly by extraction, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; * * 111. Rev. Stat. 1973, ch. 56%, par. 703.

Defendants suggest that the term “substance” as it is found in section 5 —which also appears throughout the entire Act in question — is indefinite, vague and uncertain. They contend that “By definition, a ‘substance containing cannabis’ cannot itself be cannabis; otherwise, you would have ‘a cannabis containing cannabis’.” Furthermore, defendants urge that the statute purportedly places undue emphasis on the substance containing cannabis rather than upon the amount of cannabis itself; and that, for example, one gram of cannabis in a 50-lb. sack of fleur would result in a Class 2 felony under section 5(e). Defendants’ argument is that the one gram of cannabis would taint the noncannabis substance and miraculously turn the flour into a “substance containing cannabis.” We cannot accept defendants’ argument that the statute envisions such alchemy.

In order for a statute to be valid, it must be complete, certain, and definite in all its essentials. (People v. Tibbitts, 56 Ill.2d 56, 305 N.E.2d 152.) A statute is incomplete if one who reads it fails to discern his rights and obligations thereunder, or is incapable of intelligently appreciating how he will be affected by its operation. At the root of this rule is a concept of fairness. (Colten v. Kentucky, 407 U.S. 104, 32 L.Ed. 2d 584, 92 S.Ct. 1953.) We have examined the statute in question and find that it is not vague or abstract.

Section 3(a) sufficiently delimits what is or is not meant by the term cannabis and other substance relating thereto. In light of the certain limitations, when section 5(e) refers to any substance containing cannabis, it can only be interpreted to mean those substances defined in section 3(a). To find otherwise would render the statute constitutionally infirm. Also, section 5(e) is definite as to the penalty which can be imposed for a violation of that provision.

Next, defendants urge that their guilt was not established beyond a reasonable doubt. We cannot agree. The testimony of the various prosecution witnesses was certain and uncontroverted. Those questions which did arise dealt with the credibility of the witnesses who testified, and such matters are properly left up to the tiler of fact to determine. The findings of guilt by the trial court sitting as the trier of fact will not be-disturbed unless the evidence is so improbable as to leave a reasonable doubt of defendants’ guilt. People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288.

Lastly, defendants submit that their jury waivers were involuntarily given due to the circumstances under which they were made. We agree.

In all serious criminal matters, a defendant has the absolute right to a-jury trial .(Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444); and a -.defendant has the corresponding right to waive a trial by jury as long as the waiver is understandably and voluntarily made. (People v. Rivera, 34 Ill.2d 575, 216 N.E.2d 786.) As a general proposition, whether a defendant has understandably made his waiver rests on the peculiar facts of each case. It cannot be governed by a rigid formula. (People v. Palmer, 27 Ill.2d 311, 189 N.E.2d 265.) It is the duty of the trial court to ascertain whether a defendant’s waiver of jury is understandably and voluntarily executed. People v. Clay, 19 Ill.App.3d 296, 311 N.E.2d 384.

In the Rivera case, the defendant waived his right to a trial by jury and after a bench trial was found guilty of voluntary manslaughter. On appeal, he contended he was denied his right to a trial by jury because the judge expressed annoyance when defense counsel, who had previously informed the judge that defendant would opt for a bench trial, stated that defendant desired a jury trial. The trial court displayed impatience with counsel and expressed a desire to take care of other matters. After a colloquy with the court, counsel consulted with his client and a decision was reached to waive a jury trial. The supreme court stated:

“The argument is that because the judge was noticeably perturbed his statements had the effect of coercing defendant into changing his mind and waiving the jury. In our opinion this contention must be sustained.” (34 Ill.2d 575, 577; 216 N.E.2d 786, 787.)

The rationale of Rivera is dispositive.

We are mindful that all requests for continuances are addressed to the sound discretion of the trial court. (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(e).) In this case, the refusal to grant the continuance amounted to an abuse of discretion. The State failed to comply with discovery until 7 days prior to the original date set for trial, several months after defendants had been arrested and arraigned on an information which charged them with a violation of the Cannabis Control Act. All of the State’s witnesses disclosed in discovery resided in Springfield, several miles from the site of the trial. Moreover, an essential part of the State’s case was based on the results of the chemical analysis performed upon alleged contraband, and defendants’ counsel did not have an opportunity to acquire this evidence from the authorities and have it independently analyzed. The cumulative effect of these facts was that on the date of the trial defense counsel could not be prepared. Defendants were put in the untenable position of choosing between a jury trial at a time when their counsel was unprepared and a bench trial at a later date when presumably counsel would be better able to present their defense. The trial court showed its impatience with counsel over the fact that the case had already been continued on one prior occasion, and that the purpose of that continuance was to afford defendants more time to prepare. In order to buy time, defendants waived their right to a jury trial. The trial judge, as the guardian of defendants’ constitutional rights, failed to ascertain whether these waivers were voluntarily executed.

Accordingly, the judgment of the circuit court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

SIMKINS, P. J., concurs.

Mr. JUSTICE SMITH,

dissenting:

I cannot agree that Rivera is dispositive of the jury-waiver issue. The facts and circumstances in that case are exactly the converse of what we have in this case. In the opinion itself there is nothing from which it can be fairly concluded that the trial court abused its discretion. It is clear that the court had continued the jury setting one week for the specific purpose of affording the defendants more time. They had it; they didn’t use it; and the bald statement of trial counsel without more as shown in this opinion that he “had no opportunity to contact any of the State’s witnesses” is a frail peg upon which to hand an abuse of discretion. This is particularly true where no sound reason is shown to justify a continuance. There is even no showing that interviewing the State’s witnesses would have aided the defense or that they were not readily available for such purposes.

In all other respects, I would concur.


author: Mr. PRESIDING JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy D. Navis, Defendant-Appellant.
    (No. 12450;
    Fourth District
    December 30, 1974.

      W. K. Kidwell and Robert E. Cummins, both of Mattoon, for appellant.
    Paul L. Stone, State’s Attorney, of Sullivan, for the People.
   Mr. PRESIDING JUSTICE SIMKINS

delivered the opinion of the court:

The defendant appeals from convictions of driving while his driver’s license was revoked and driving under the influence of intoxicating liquor. He presents as issues: (1) whether it was error to try the two offenses in a consolidated trial and to deny defendant’s motion to sever; (2) whether it was error to admit the certified copy of the Secretary of State’s driving record of a person with the same name as the defendant without further evidence that the defendant was the person named on those records; (3) whether, if the conviction of driving with a revoked license is improper as alleged in issue 2, the defendant was denied a fair trial on the co-charge of driving while under the influence of intoxicating liquor; and (4) whether it was error for tire court to allow a demonstration of the intoxilyzer machine.

The arresting officer, an Illinois state trooper, testified that the county road where he stopped the defendant at approximately 1:30 A.M. on March 3, 1973, was quite rough and that there was scattered fog on the morning in question. The trooper testified that defendant’s car was weaving back and forth continuously across the road at about 30 to 35 mph and that he had to operate the siren and red light approximately one mile before the defendant’s car stopped. The trooper testified that the defendant produced a driver’s license with an expiration date of 1970, that the defendant had a strong smell of alcoholic liquor, and that he was unable to stand erect or walk in a straight line. Defendant was taken to Bethany, where, along with corporal Lambird, the trooper administered several physical tests involving coordination and dexterity which the defendant could not perform satisfactorily. The trooper testified that he read the Miranda warnings and ascertained that the defendant understood them and also read to the defendant a request to submit tó a test of breath to determine intoxication. The trooper testified that the first intoxilyzer test was administered at 3:30 A.M. and the second at approximately 4:10 A.M. and that from the time he had stopped the defendant, the defendant had consumed no food or liquor nor had he regurgitated. The conservation officer who was riding with the state trooper at the time of the defendant’s arrest corroborated the circumstances related above." The conservation officer testified that at the time the defendant’s automobile was stopped there was scattered fog and that the defendant was driving from one side of the road to the other. He testified that the defendant was unable to walk steadily, talked in a mumbling fashion, and smelled of alcohol.

The defendant’s version of the facts is that on March 1, 1973, he had had a tooth extracted, causing such great pain and discomfort that he did not go to work the next day. Defendant testified that on March 2 he left his home in Findley and drove to Sullivan, where he consumed one bottle of beer. After leaving Sullivan, he went to Mattoon where he purchased a bottle of pain pills and a bottle of Scope mouthwash, and consumed, another beer. During the rest of the afternoon and evening of March 2, the defendant drove from Mattoon to Effingham, to a lake, back to Effingham, to Siegel, to Neoga, stopping in each town to have one or two beers, and during his travels, washing his mouth out with Scope to reheve the pain of the wound left by the extracted tooth. Defendant testified that at the time he was stopped by the trooper early on the morning of March 3,1973, he was driving in heavy fog, attempting to dodge the numerous chuckholes in the road, and that his speech may have been slurred due to his swollen gum and irritated mouth.

The State’s answer to defendant’s motion to produce tangible items disclosed that the State had defendant’s driver’s record, which was available for inspection. At the trial, the arresting officer identified a certified copy of the defendant’s driver’s record as that received from the Secretary of State’s office. Defendant objected on the grounds that no proper foundation had been laid and that there was no other evidence that the person described in the exhibit was the defendant. Officer Young, an operator of the breath-analysis machine, or “intoxilyzer,” was called by the State and, after testifying to his training and qualifications, identified a log book of the intoxilyzer which was kept in the cabinet of the machine to which only certified operators had keys. Officer Young testified that, as the log book indicated, he had tested the machine on February 22, 1973, and again on March 7, 1973 (before and after the defendant was tested on the machine), and that both times it was within tolerances. Officer Young explained the procedure of the test and then testified in general as to how the machine works and how it is used, referring to a machine in the courtroom. Extensive testimony on how the machine worked and how it is used was adduced, the State’s Attorney explaining that the machine is relatively new and that he wished to establish for the record (1) that the machine is tested periodically, (2) its reliability, and (3) the several improved safeguards against intentional tampering or unintentional mistakes. On cross-examination and on re-direct examination, the emphasis was on the possibility of the machine registering if one held or swished alcohol in the mouth without ever swallowing it — in this way responding to defendant’s testimony that he had used mouthwash containing alcohol at least 20 times during the evening in question without actually swallowing any of it. Officer Young testified further to the machine’s reliability so long as a test is made 20 minutes after the subject has last placed anything in his mouth or regurgitated.

Next, Corporal Lambird, who actually tested the defendant, was called, and, after testifying to his training and certification as an operator of the machine, described the testing of the defendant. He testified that the defendant’s first test showed .19 percent alcohol, and after 16 minutes, the second test was taken indicating .20 percent, and that prior to the first test the defendant had been in his presence 25-30 minutes, during which time he did not drink, smoke, or regurgitate.

On June 6, 1973, the defendant filed a motion for severance of the actions. On June 7, 1973, defendant filed a waiver of trial by jury, and a bench trial was held on June 7 and 8, 1973. The court first heard the arguments on the defendant’s motion for severance which the defendant then contended should be granted and now contends was error to deny, on the grounds that if the charges were tried jointly, the prosecution would introduce the defendant’s driver’s license record into evidence on the driving-while-license-is-revoked charge, which would disclose that the defendant had previously been convicted of driving while intoxicated and thus prejudiced the defendant on that charge. More generally, the defendant contended that being tried for these two charges together in itself would prejudice him because of a presumed inference that the guilt of one would establish the guilt of the other. The trial court denied the motion, saying that the defendant had failed to show any prejudicial result. The court found the defendant guilty of both charges at the conclusion of the trial on June 8, 1973, and following a presentence investigation and a hearing held on June 22, 1973, the defendant was sentenced to the Vandalia State Penal Farm to serve 10 months on the driving-while-intoxicated charge (Ill. Rev. Stat. 1973, ch. 95%, par. 11— 501) and 5 months on the driving-while-license-was-revoked charge (Ill. Rev. Stat. 1973, ch. 95%, par. 6 — 303(a)), to be served concurrently.

The defendant cites People v. Limauge, 89 Ill.App.2d 307, 231 N.E.2d. 599, for the proposition that severance should have been granted. Section 3 — 3(a) of the Criminal Code of 1961 states that when the same conduct of the defendant establishes the commission of more than one offense, he may be prosecuted for each such offense; section 3 — 3(b) provides that if the several offenses are known to the prosecutor and within the jurisdiction of a single court, they must be prosecuted in a single prosecution if based on the same act, except as provided in subsection (c), which provides that if two or more offenses are charged as required by subsection (b) the court in the interest of justice may order that one or more of such charges be tried separately. (IU. Rev. Stat. 1973, ch. 38, par 3 — 3.) The case cited above was concerned with the statutory mandate that if different offenses “are based on the same act” they “must be prosecuted in a single prosecution,” and concluded that it did not preclude the defendant from being tried and convicted of reckless homicide after pleading guüty and being sentenced for driving while his license was revoked. Likewise, in the instant case, the defendant’s “act” of driving while intoxicated was independent of and had no casual or consequential relationship with the simultaneous “act” of driving while his license was revoked. The defendant, while driving the same automobile at the same time and the same place, committed two completely separate offenses directed at different evüs and having no common ground, except the driving of the automobüe.

Section 114 — 8 of the Code of Criminal Procedure of 1963, entitled “Motion for Severance,” provides that: “If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief that justice may require.” (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 8.) The defendant’s reliance on People v. Woods, 23 Ill.2d 471, 179 N.E.2d 11, for the proposition that a defendant cannot be forced to stand trial upon disassociated felonies is clearly misplaced. Likewise, People v. Fleming, 121 Ill.App.2d 97, 257 N.E.2d 271, is also distinguishable. In that case, it was held to be error to join two separate unrelated offenses in the same trial and error to deny the motion to sever. In Fleming, the defendant was convicted of theft of an automobile and theft of property; count I charged theft of the automobile in August 1966, and count II charged theft by deception for the sale of the same automobüe in March 1967. Therefore, tiróse two offenses were separated in time by 8 months, there were separate victims, and there was no general underlying scheme or plan with the only connection being that the same automobüe was involved. In the instant case, the two offenses of driving whüe the license was revoked, and driving while intoxicated, do not have the same elements, except for the driving of the automobile, but clearly both were being committed at the same time during the same course of conduct and so were properly joined. The key word in section 114 — 8 on severance is “prejudice.” The defendant asserts two forms of prejudice resulting from the denial of his motion: (1) that evidence showing his license had been revoked would disclose a previous conviction for driving while intoxicated which would prejudice him on that latter charge; and (2) the defendant would be prejudiced by finding him guilty on one or the other or both of the charges in that the presumption of innocence would be diminished. The Committee Comments to section 114 — 8 state that the granting, of a motion to sever remains in the sound discretion of the trial court. In the instant case, there was a bench trial and there is no reason to assume that the judge would be influenced by evidence on one charge to defendant’s prejudice on the other, and it does not appear that the trial court abused its discretion in denying the motion. People v. Pagan, 52 Ill.2d 525, 288 N.E.2d 102.

The defendant next urges that it was error to admit into evidence over his objection a certified copy of the driving record of a person with the same name as the defendant without other evidence that the defendant was the person named on the Secretary of State’s record. In support of his contention, the defendant cites cases dealing with the introduction into evidence of prior convictions of a criminal defendant where it has been held that the State must show that the defendant is the person named in those records. For example, in People v. Stewart, 23 Ill.2d 161, 177 N.E.2d 237, the defendant had been sentenced to fife imprisonment as a habitual criminal upon the evidence of a certified copy of a conviction of one “Sherman Edward Stewart, alias Sherm Stewart” of burglary in another county 10 years earlier without any evidence that it was the same man as the defendant. Absent evidence to identify the defendant as the same person named on an exhibit showing prior convictions, the trial court should not impose a penalty permissible only for second or subsequent convictions. However, section 6 — 118 of the Illinois Vehicle Code pertaining to fees for licenses and permits under the. article, in subsection (f), states:

“An abstract issued by the Secretary of State pursuant to Section 6 — 118 of this Act, on request of a law enforcement agency, for the record of a named person as to the status of his driver’s license shall be prima facie evidence of the facts therein stated and if the name appearing in such abstract is the same as that of a person named.in an information or warrant charging a violation of this .Section, such abstract shall be prima facie evidence that the person named in such information or warrant is the same person as the person named in such abstract.” (Ill. Rev. Stat. 1973, ch. 95%, par. 6 — 118(f).)

Therefore, the certified driving record from the Secretary of State’s office introduced into evidence in the instant case bearing the defendant’s name has a statutory presumption of correctness. The State had disclosed to the defendant that it had a copy of his driving record and that it was available for inspection before trial. The presumption in favor of these records seems quite reasonable since the Secretary of State’s records identify drivers much more precisely than merely by name (physical characteristics, age, sex, address), so that there would be a very light burden on the defendant to overcome the presumption if the records sought to be introduced against him were actually not his own.

The defendant’s final issue is that it was error to admit into evidence the demonstration of the intoxilyzer machine by the operator because such demonstration was not relevant to any issue in the case. The General rule is that a court has reasonable discretion in admitting or rejecting exhibits or in permiting demonstrations, and exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant. (People v. Smith, 1 Ill.App.3d 518, 275 N.E.2d 268.) The demonstration in the instant case went hand-in-hand with the expert witnesses’ testimony as to the operation and reliability of a relatively new machine for determining alcoholic content of the blood. At the trial, the defendant stressed his frequent use of mouthwash containing 18 percent alcohol in- support of his defense that a machine measuring alcohol content of the blood by analyzing his breath might be caused to register when, in fáct, none of the mouthwash had been swallowed. The experts’ testimony and demonstration were admitted for the purpose of rebutting that contention, to demonstrate safeguards against accidental or purposeful malfunctions or mistakes and to show that the machine’s accuracy had been tested, both before and after the defendant’s test. As to possible prejudice to the defendant, this is not a case where questionable peripheral evidence was used to excite the trier of fact or for dramatic effect, but was simply to aid in determining what credibility should be given the direct evidence of the meter readings of .19 percent and .20 percent in conjunction with the provision of the Illinois Vehicle Code providing that an analysis of .10 percent or more gives rise to the presumption that the person is under the influence of intoxicating liquor. (Ill. Rev. Stat. 1973, ch.. 95%, par. 11 — 501(c).) Here the trial court properly exercised its discretion, there having always been a distinction between real evidence and demonstrative evidence, the latter not necessarily being to prove an issue in the case, but to aid tire trier of fact in interpreting, raiderstanding, and weighing other evidence and testimony. The defendant’s test results on the machine were validly introduced into evidence, the defendant’s consent to the test was uncontradicted, and the machine operator’s qualifications were established. The demonstrative evidence was not inflammatory, and the record shows the court’s concern for the reliability of a relatively new machine and how it is able to obtain a percentage of alcohol in the blood from a sample of a person’s breath in light of defendant’s contention that it might have been misled by his use of mouthwash.

Affirmed.

"SMITH and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald Robert Ronan, Defendant-Appellant.
    (No. 72-360;
    Second District
    January 6, 1975.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Geny L. Dondanville, State’s Attorney of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tommy Geater, Defendant-Appellant.
    (No. 73-52;
    Second District
    January 6, 1975.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE CALVIN Mr. JUSTICE CALVIN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Joseph O’Meara, Defendant-Appellant.
    (Nos. 73-68, 72-391 cons.;
    Second District
    November 8, 1974.

      Supplemental opinion upon rehearing filed January 14,1975.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office,' of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of. Model District State’s Attorneys Office, of counsel), for. the People..
   Mr. JUSTICE CALVIN

delivered the opinion of the court:

The defendant appeals from a revocation of his probation and from a denial of his petition for writ of habeas corpus. The appeals were consolidated in this court.

Originally, the defendant was charged in Lake County with armed robbery. On February 24, 1967, he pleaded guilty to the lesser included offense of robbery and on March 8, 1967, he was granted probation for a term of 5 years.

On October 13, 1967, a petition to revoke his probation was filed alleging that the defendant violated probation by committing armed robbery August 29, 1967, in Cook County, Illinois, where he was then in custody. Shortly thereafter, defendant was released to Federal authorities to stand trial on unrelated charges and, as a result thereof, received a 10-year sentence and was committed to the Federal penitentiary at Leavenworth on November 14, 1967. No detainer was filed by Lake County authorities while defendant was in Federal custody.

On December 21, 1970, defendant was paroled from the Federal penitentiary and returned to reside in Zion, Illinois. The facts are uncontroverted that the defendant saw both the probation officer and State’s Attorney of Lake County on different occasions and that neither mentioned that the 1967 petition to revoke was still outstanding. The probation officer, in fact, informed him it had been dropped.

On August 30, 1971, defendant was brought before the trial court pursuant to the 1967 petition to revoke. Defendant moved the court to strike and dismiss the petition on the grounds he had been denied his Sixth Amendment right to speedy trial thereon. That motion was denied, and on September 29, 1971, defendant’s counsel and the assistant State’s Attorney indicated to the court that, after a discussion, they desired to present to the court a disposition in the nature of a negotiated plea which would, in effect, find defendant in contempt of court and extend his probation. The court did not act on the request at that time because there could have been Federal parole problems then in existence.

At a later hearing on November 10,1971, after determining no Federal parole problem existed, the trial court extended probation for an additional 2 years beyond the original term, the order specifying the extension to be to March 8, 1974. The trial judge then admonished the defendant that he had a right to appeal the order within 30 days and to counsel and .a transcript on appeal. The" defendant acknowledged this • admonition in open court; No appeal was filed.

On April 3, 1972, a second petition to revoke probation was filed alleging defendant violated his probation by committing the offense- of theft over $150 on April 2, 1972. The defendant pro se moved to strike and dismiss the petition alleging the hearing on the original petition to revoke had been held in violation of his right to speedy trial. This motion was later denied, and defendant, on June 21, 1972, filed a pro se petition for writ of habeas corpus again alleging violation of his right to speedy trial on the original petition to revoke probation. This petition was heard by a judge other than the original trial judge and was denied July 18, 1972, on which date defendant filed notice of appeal from that denial.

On August 9, 1972, the trial judge who originally granted probation and the extension thereof, acting on the second petition to revoke, did revoke the defendant’s probation and sentenced him to a term of 3-10 years in the penitentiary with credit for 323 days previously served in the Lake County Jail. A notice of appeal from this order was filed. The appeals were consolidated for hearing in this court.

Defendant contends in both appeals that the trial court lost jurisdiction to conduct a hearing on the original petition for revocation of probation due to State-occasioned unreasonable delay in the hearing thereon and that by reason thereof, there was no valid extension of probation, and thus, probation had terminated on March 8, 1972, prior to the alleged second violation on April 2, 1972. We find that this argument has been waived.

Certainly, the trial court in 1967 had authority to grant probation for 5 years. (Ill. Rev. Stat. 1965, ch. 38, par. 117 — 1(b).) This original term would have expired March 8, 1972.

The service of the Federal sentence did not terminate defendant’s State probation, and it was still in effect on November 10, 1971, when the trial court extended probation for an additional 2 years, that order specifying the termination date to be March 8, 1974. A person admitted to probation shall remain subject to the jurisdiction of the court. Ill. Rev. Stat. 1965, ch. 38, par. 117 — 1(c).

Section 117 — 1(b), in force in 1971 at the time of the hearing on the original petition to revoke probation, gave the court authority to extend probation for a period of not more than an additional 2 years for good cause shown. There was no contention by the defendant that good cause was not shown. His motion to strike and dismiss the petition to revoke was based on the grounds that the delay of almost 4 years in prosecuting the petition denied him his constitutional right to a speedy trial. This motion was denied by the trial court, and the defendant’s probation was extended 2 years beyond the original term to March 8, 1974. Clearly, the court had both jurisdiction and authority to do so. The defendant, in his pro se brief, further contends that the order extending probation was void because it purported to grant probation for 7 years from the original date of March. 8, 1967, and that this exceeded the court’s authority. We are not persuaded by this argument. That same order also specifically showed a termination date of March 8, 1974, and from that and a reading of the record, it is apparent that the court was extending an Original 5-year term an additional 2 years.

The record indicates the trial judge admonished the defendant of his right to appeal within 30 days of the extension order and of his right to counsel and transcript on appeal. This is not disputed by the defendant. The record further shows that no appeal was taken from denial of the defendant’s motion to strike and dismiss the petition to revoke or from the order extending probation. Section 117 — 3(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 3(e)) provides for such an appeal when conditions of probation are altered. Since the defendant failed to raise the speedy trial argument on appeal within 30 days of the order extending his probation, he cannot argue it on this appeal. A constitutional right may be knowingly and voluntarily waived. People v. Johnson, 12 Ill.App.3d 511, 299 N.E.2d 545.

Thus, the defendant was still on probation on April 2, 1972, when he was alleged to have again violated his probation by committing another felony. The defendant does not challenge the revocation of probation or the sentence on the grounds that the State failed to prove a violation. The thrust of both appeals here is that the ruling of November 10, 1971, on the speedy trial issue was erroneous and that, therefore, the extension of probation was void and that, absent this extension, the court had no jurisdiction over the defendant after March 8, 1972. As we have indicated, that issue has been waived by the defendant by his failure to make timely appeal.

We now turn to the issue presented by the defendant’s appeal of the denial of his petition for writ of habeas corpus. A petition for writ of habeas corpus is intended to reach and correct errors of a jurisdictional nature only. The remedy of habeas corpus is not available to review errors of a nonjurisdictional nature even though they involve a claim of denial of constitutional right. (People v. Cobb, 8 Ill.App.3d 1081, 290 N.E.2d 610.) Therefore, it is necessary to determine whether there were any jurisdictional defects in the order extending probation or in the later order revoking probation.

The record here shows that the defendant had been properly served a copy of the revocation petition and thus, the court had jurisdiction over his person. Clearly, on November 10, 1971, the original probation was still in full force and effect, and the court had jurisdiction over the subject matter thereof. As we heretofore indicated, the court had authority to extend probation for 2 years for good cause shown. There was no lack of jurisdiction on November 10, 1971.

Since the extension of probation was valid, defendant was still on probation on April 2,1972, and the court had jurisdiction of the proceedings involving the petition to revoke filed April 3, 1972. The. remedy of habeas corpus was not available to the defendant here.

Defendant further contends that the sentencing provisions of the new Unified Code of Corrections, effective January 1, 1973, are applicable to the sentence imposed herein and that he should be granted credit on his sentence for time served on probation according to the provisions of section 5 — 6—4(h) oí the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h)).

Section 8 — 2—4 of the Unified Code provides in substance that if the offense being prosecuted has not reached a final adjudication by January 1, 1973, the sentences under the Code apply if they are less than those under the prior law upon which prosecution was commenced. This court has previously held that a case pending on appeal has not reached final adjudication. (People v. Smith (1973), 10 Ill.App.3d 501, 296 N.E.2d 15; People v. Gargano (1973), 10 Ill.App.3d 957, 295 N.E.2d 342.) We agree that this matter before us had not reached final adjudication on January 1, 1973.

At the time defendant was convicted and at the time of his later sentence, robbery carried a penalty of an indeterminate sentence of not less than 1 nor more than 20 years in the penitentiary. Under the new Unified Code it is classified as a Class 2 felony carrying the same indeterminate penalty, plus a possible $10,000 fine. Clearly, the sentence authorized under the Unified Code is not less than under the prior law for the offense in this case. The sentence of 3-10 years given here complies with the provisions of the Unified Code.

We do not believe that the legislature intended that the provision for granting credit for time spent on probation or conditional discharge should be considered in determining whether the Code sentence is less than under the prior law. As this court stated in People v. Smith (1973), 10 Ill.App.3d 501, 507, 296 N.E.2d 15, 19:

“To this court, the actual term of imprisonment is the criterion and that is the basis upon which we shall base our determination.”

Inasmuch as the Code sentence is not less than that under the prior law in this case, the provisions of the Unified Code of Corrections do not apply here to give defendant credit on his sentence for time served on probation.

The various other contentions raised by the defendant in his pro se additional brief are all matters which could have been raised on appeal from the order extending probation. No such appeal was taken. These, matters cannot now be raised.

For the reasons stated, the judgment of the circuit court will be affirmed.

Judgment affirmed.

STOUDER and ALLOY, JJ., concur.

SUPPLEMENTAL OPINION

Mr. JUSTICE CALVIN

delivered the opinion of the court:

After the filing of the above opinion, the defendant petitioned for rehearing. We allowed the petition.

The petition is limited to the issue of defendant’s right to credit on his sentence for time served on probation according to the provisions of section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h)).

Apparently, this issue had already been decided by the regular panel of this court by order dated March 19, 1974, after the filing of the briefs later submitted to this panel. That order found that the defendant is entitled to credit for the period subsequent to November 10, 1971, the date defendant’s probation was extended, until the date on which the second petition to revoke was filed, April 3, 1972, and for the period from April 3, 1972, to August 9,1972, being the date defendant was sentenced, and ordered the trial court to consider the defendant’s motion for sentence credit consistent with its order.

It further appears that on June 5, 1974, the trial court, consistent with that order, entered an order granting defendant credit for 272 days served on probation.

We are bound by those orders, and, therefore, our opinion is modified consistent therewith.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    Edward Smith, Plaintiff-Appellant, v. General Paving Company, Defendant-Appellee.
    (No. 74-100;
    Third District
    November 27, 1974.

      Sidney Karasik, of Chicago, and Sheldon W. Reagan, of Kankakee, for appellant.
    Jack E. Horsley and Stephen L. Com, of Craig & Craig, of Mattoon (Richard F. Record, Jr., of counsel), for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Edward Smith, appellant, appeals from an order of the Circuit Court of Kankakee County which dismissed his complaint against defendant, General Paving Company, for failure to state a cause of action.

This issue before us is best understood by a brief reference to the background of the action. It appears from the record that near Christmas in 1965 a severe flood which followed a rain caused the water to rise to the first story of a building owned and operated by plaintiff as a tavern and apartment in which plaintiff lived. The water rose into the first story of the building and the electrical wiring became short-circuited and caused a fire which totally destroyed the structure. At that time, defendant General Paving Company was working in construction work on Illinois Route 54 at its intersection with Chebanse Road. Plaintiff’s home and tavern were located nearby in Chebanse.

Plaintiff Smith filed a three-count complaint in the Circuit Court of Kankakee County which alleged that defendant negligently allowed the drainage system in the area to become clogged thus causing the flood and the fire which destroyed plaintiff’s property. The complaint and first and second amended complaints which were filed thereafter were all dismissed on the motion of defendant as being insufficient as a matter of law.

A third amended complaint, including a fourth count, was then filed. It was also eventually dismissed and following denial of a rehearing, plaintiff appealed to this court. The third amended complaint alleged that defendant had a duty to exercise due care in keeping the drainage systems in the area from being clogged, as defendant knew or should have known that clogged drains could cause floods or other damage during rainstorms. Count I charged specifically that defendant negligently permitted the drains to become clogged which resulted in destruction of plaintiff’s property. Count II further alleged that the resulting floods prevented the fire departments from reaching plaintiff’s home so as to be able to extinguish the fire caused by the flood. Count III which relied on the doctrine of res ipsa loquitur alleged that defendant was tin control of the drainage systems in the area, and that such severe flooding does not normally occur without some sort of interference with the drainage system. Count IV alleged the existence of a contract between the State of Illinois and defendant General Paving Company which included among its terms the following provision from the State’s “standard specifications”:

“The roadway shall be maintained so that it will be well drained at all times. If, during the prosecution of the work, it is necessary to interrupt existing sewer or under drainage, temporary drainage facilities shall be provided until the permanent drainage work has been completed * * * The contractor shall be responsible for, and shall take all necessary precautions to preserve and protect all existing tile drains, sewers, and other subsurface drains or parts thereof which may be affected by his operation.”

In Count IV it was also alleged that defendant was guilty of negligence in failing to keep the drainage system in working order and thereby damage was caused to plaintiff’s property. The complaint alleged damages in the amount of $200,000.

In considering defendant’s motion to dismiss the third amended complaint, the trial court dismissed the first three counts for the stated reason that “nothing is alleged concerning the contractor’s relationship with the State concerning the construction of the highway or the plans and specifications for its construction. Apparently, since Count IV contained allegations concerning the contract, that part of the complaint was then allowed to stand. Defendant, however, subsequently moved to dismiss Count IV on the ground that plaintiff had been fully reimbursed for his damages by insurance payments and was no longer the real party in interest since the Insurers had been subrogated to his claims. The trial court granted that motion and eventually an order was entered dismissing the complaint as a whole. Counts I, II and III were dismissed for the reason that they did not mention the State contract under which •defendant was working nor did the counts measure defendant’s negligence in terms of the contractual plans and specifications. From the record it is difficult to see how the existence of a contract with the State would' be indispensable to a charge of negligence. If there were no such contract, the first three counts of the complaint would be sufficient to state a cause of action. Defendant contends that with the contract in existence, defendant’s only duty was to follow the plans and specifications in the contract and that a breach of duty would be alleged only by alleging a negligent noncompliance with the terms of the contract.

While we have not discovered and our attention was not directed to any precise precedents, the applicable principles are summarized in 64 Am. Jur. 2d Public Works and Contracts §§ 133, 135 (1972). It is noted in such annotation that a contractor working under a governmental contract is not liable for direct or consequential injuries resulting as a necessary incident from prosecution of the work in a proper manner. This principle of non-liability is based on the theory that the contractor is entitled to share the immunity of the public body for such incidental injuries “where he is not guilty of negligence.” (See § 135, at 1008.) It is also further stated that whatever immunity the governmental body may enjoy from negligence liability does not extend to the contractor and he is liable to third persons for injuries proximately resulting from negligence in the performance of the work contracted for. “Liability in such case is based not upon the contract with the public authorities or upon a failure to perform the work in accordance with that contract but upon the contractors negligence and the tortious breach of duty imposed upon him by common law.” (See § 133, at 1004-5; see also 9 A.L.R. 3d 382 §§ 3, 5, and cases cited therein.) In view of the fact that the contractor is liable for his negligence whether or not he is operating under a government contract and whether or not he is performing according to the plans and specifications of such contract, we find no valid reason why the contract should be referred to in plaintiff’s complaint.

The trial court relied in part on the case of Roberts v. Town of Cicero, 369 Ill. 639. The complaint in that case, however, was premised upon the assumption that the contractor had a duty to remove a structural support under a bridge into which plaintiff’s car subsequently crashed. There is no general duty on persons to remove such structural supports, and plaintiff’s complaint in Roberts, to establish a duty on the part of the contractor, had to show a contractual relationship between the state and the contractor under which the contractor was to remove the support. Since there was no showing that the contractor had any such duty, the complaint was properly dismissed.

In the instant case, on the contrary, the duty charged to defendant is to keep the drainage systems from becoming clogged. All persons have a duty to prevent drainage systems from being clogged. The legislature of this State has codified this rule in section 12 — 7 of the Drainage Code (Ill. Rev. Stat. 1973, ch. 42, par. 12 — 7) (which was enacted in 1955). This section provides:

“* « * whoever wilfully or negligently obstructs, injures, cuts, breaches or destroys a private, mutual or district drain or drainage structure, levee or pumping plant is liable for the cost of repairing or reconstructing the same and for any damage to lands, crops • or other property that may have resulted therefrom.”

The duty to keep drains free and unclogged thus arose outside the contract, even though it appears from the allegations in Count IV that such duty was also expressly included in the contract. Since the duty was not premised on the existence of the contract, however, the document need not have been pleaded in the complaint. The contract, fundamentally, would only operate to serve as a defense for the defendant General Paving Co. but even in such case General Paving Co. would be required to establish that it was not negligent in order to prevail. It is our conclusion, therefore, that the trial court clearly erred in dismissing Counts, I, II, and III on the ground that none of them mentioned the government contract.

Some reference should be made to the contention of defendant that the Count III of the third amended complaint could not state a cause of action under the theory of res ipsa loquitur since the purpose of the doctrine was to allow proof of negligence by circumstantial evidence where direct evidence concerning the cause of the damage is primarily within the knowledge and control of the defendant. The count charges defendant with knowledge and control of the construction of the improvement of Routes 54 and 157, including, but not limited to, providing maintenance and proper drainage at said location. It is also asserted that since the areas in question do not usually flood causing injuries, unless there is negligent construction or maintenance of the drainage system, defendant is charged with negligence in this respect. The complaint limits the res ipsa loquitur charges to what was exclusively within the knowledge and control of the defendant. Obviously plaintiff would be required to establish a causal connection between the alleged negligence in failing in the duty to keep the drainage system functioning and the fire resulting from the short circuit of the electrical system in plaintiff’s building.

It is also asserted that a count based on the res ipsa loquitur doctrine and other counts charging specific negligence may not be combined in one complaint. This is not true, as shown in many cases in this State. (Cobb v. Marshall Field & Company, 22 Ill.App.2d 143, 159 N.E.2d 520.) The mere fact that plaintiff has alleged certain specific acts of negligence in the complaint does not mean he could not' also rely, alternatively, upon the doctrine of res ipsa loquitur if it can be proven. Plaintiff, under such circumstances, would have the burden of establishing the requisite elements to cause the doctrine of res ipsa loquitur, to be applied in this cause. For our purposes, the állegations which are made in the count were adequate at this stage of the pleadings.

Count IV, which alleged existence of the contract, was made subject to supplementary attack. Plaintiff had filed sworn answers to defendant’s interrogatories and therein estimated total damage over $60,000. The answers also show that Smith had been reimbursed by bis insurance companies to the extent of only $16,546.92. With no further proof that plaintiff had been "fully compensated for his losses,” defendant then moved for dismissal of Count IV, and contended that plaintiff was no longer the real party in interest, since the insurers had been subrogated to his claim. The trial court dismissed Count IV on this defendant’s motion and gave plaintiff 60 days to amend that count, with the apparent expectation that plaintiff was going to produce insurance policies and receipts. Plaintiff, however, elected to stand on his pleadings.

We must conclude that the trial court erred in dismissing Count IV. It is true that the law provides that any action brought by virtue of subrogation must be brought either by the subrogee (the insurer in this case) or for the use of the subrogee (Ill. Rev. Stati, ch. 110, par. 22(3)). This provision, however, has been interpreted to concern only those cases where the owner or other plaintiff has no continuing interest whatsoever in the suit by reason of full payment to such plaintiff. In Shaw v. Close, 92 Ill.App.2d 1 (which was relied upon by both parties in the trial court), the court stated at pages 4-5:

‘Where the right of subrogation exists an action may be brought in the name of the insured if the insured has an interest in the suit and is entitled to recover something, if only a nominal sum, over and above the amount of the subrogation claim.”

The complaint in this cause alleged $200,000 in damages, and the sworn statements of plaintiff showed approximately $60,000 in property damage. Payment by insurers was only $16,546.92. It is obvious that plaintiff retains a substantial interest in the suit. Defendant’s contention that plaintiff was fully reimbursed by the insurance companies was a mere allegation with no proof introduced or even suggested to contradict the facts sworn to be plaintiff. As a consequence we must conclude that the trial court erred in dismissing Count IV of the complaint, as well as the other counts.

For the reasons stated, the order of the Circuit Court of Kankakee County dismissing the complaint in this cause is hereby reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded with directions.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. JUSTICE DIXON Mr. JUSTICE STOUDER,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frances Sarah Ussery, Defendant-Appellant.
    (No. 73-136;
    Third District
    December 30, 1974.

      Rehearing denied January 28, 1975.

      STOUDER, J., specially concurring.
    Howard T. Savage, of Savage, Frazin, Spencer & Stewart, of Chicago, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Frances Sarah Ussery, was indicted for the offense of possession of cannabis, in an amount in excess of 30 grams and not to exceed 500 grams. After a bench trial she was found guilty and was sentenced by the Circuit Court of Kankakee County to a term of from 1 to 3 years. She appeals, contending (1) that she did not receive the assistance of counsel to which she was constitutionally entitled, and (2) that the court denied her the right to be represented by counsel of her own choice.

On August 20, 1972, at about 4 P.M., Herbert Pope, a Kankakee County deputy sheriff, received a call from his office to go to the Munyon Road in Pembroke “where there was supposed to be a late model dark green vehicle involved in the picking of cannabis or marijuana.” He went to the Pembroke area and radioed for an assist from Clint Butler, Pembroke’s chief of police. Butler, in his squad car, followed Pope in his squad car along Munyon Road to near its south end where it intersected a road known as Guertin Blacktop. About 1000 feet from the Guertin Blacktop they observed a Cadillac with two or three subjects standing around it, one of whom was talking to the lone driver of a dark-green Volkswagen station wagon on the west side of the road. As the two police vehicles approached the other two vehicles, the Volkswagen moved toward the Guertin Blacktop, stopped at a stop sign, turned east onto the Blacktop and pulled over to the side of the road so that the two. police vehicles could pass. The two police cars had followed the Volkswagen, and when it stopped at the side of the road, Pope, who had turned on his red light to stop the Volkswagen, stopped behind it, exited his squad car and started towards the1 Volkswagen. At this point the Volkswagen pulled away, and Butler who was behind Pope passed Pope’s vehicle, and, with his red light and siren on, he overtook the Volkswagen. During this chase, the Volkswagen was weaving back and forth across the pavement and the driver of the Volkswagen (defendant Ussery) stuck a brown paper bag out of the window of the Volkswagen and was shaking it as she traveled down the Blacktop. Butler saw something ground up or crushed up falling down from the bag as he was overtaking and passing the Volkswagen. Pope who was traveling behind Butler saw a clear plastic bag fall from the inside of tire brown paper bag. The place where Pope saw the plastic bag fall was between 500 and 1000 feet from where Butler stopped the Volkswagen. Defendant was ordered from the Volkswagen at gunpoint, and she was detained by Butler while Pope walked back down along side the side of the road some 500 or more feet. On the north shoulder of the roadway, in the grass at the edge of the roadway about 500 to 1000 feet from where the Volkswagen was finally stopped, Pope came upon a clear plastic bag with a green leafy substance that looked and smelled like marijuana. He looked around the immediate area where the bag was found and saw no other bag. He went back to the Volkswagen and told defendant that he was placing her under arrest for possession of cannabis.

Although Butler had seen defendant shaking her hand with a bag in it outside the window of her car, and although he had seen something that was brown and greenish in color flying out of the bag, he did not see anything heavy fall out of the bag and he did not observe the plastic bag brought back by Pope fall out of the brown paper bag as defendant shook it.

After Pope informed defendant that she was under arrest and searched her vehicle and found a balled-up brown paper bag with a few granules of some dark-green leafy substance in it on the floor by the driver’s seat, he held the brown paper bag and the plastic bag for evidence. He delivered these items to an investigator named Nagle. Butler searched defendant’s vehicle. In it he saw a lot of junk, corn, beans, paper bags, eggs and some of everything else in the car. He did not see Pope take anything from defendant’s car. There were a lot of bags in her car. He found some guns in her car which were cased and legal and defendant had a gun owner’s identification. The officers permitted defendant to drive her car home between their two vehicles and then Pope drove her downtown to the sheriff’s office. Defendant was set free from tire sheriffs custody, but the next day she was again arrested and brought back to the sheriff’s office and held in custody. A chemist received the brown paper bag and the plastic bag from investigator Nagle and found that the plastic bag contained green plant material. He weighed this material and found it to be 108.36 grams. He tested a sample of the material that was in the plastic bag and found that the sample he tested was ground up marijuana and resin.

Defendant denied that she had attempted to elude the police, testified that a cigarette pack was the only thing she threw from the window of her car, denied that the policemen had taken anything from her car at the time they searched it, stated that she had bags in her car to put eggs, stringbeans and different things in that she sold in Chicago, that the two shotguns in her car were encased and tied up and that when Pope walked back down Guertin Road she had seen him go over to the edge of a field on the north side of the roadway, she did not see him pick up anything because she was talking with Officer Butler and that when Pope came back to her car he had a brown paper sack which he said that she had thrown out. She stated that she told Officer Pope at that time that she hadn’t thrown anything out of her car. She had been taken to the sheriff’s office and set free, had gone home and was arrested again at her home the next day. The next day at the police station she was released and she was arrested again upon a criminal capias that had been issued September 22, 1972, on November 1, 1972. She was released upon personal recognizance bond on November 2, 1972, and the public defender was appointed to represent her.

The defendant’s trial attorney made no motion to suppress as evidence the plastic bag and contents thereof. He did move for and receive, 6 weeks before trial, copies of the statements of the arresting officer which gave him all the facts we have before us. On this appeal defendant seeks to raise the failure to move for suppression as the sole basis for her contention that her trial counsel was incompetent. She argues that the recovery of the evidence was the result of an illegal arrest without probable cause and that therefore the evidence must be excluded. She contends that she was under arrest from the time she first stopped.

Her contention is not sustained by the facts. She was not under arrest when Deputy Pope stopped his squad car behind her car, in her “first stop” on Guertin Road, to “check it because it fit the description of the vehicle in question.” The curbing of a car is not an arrest of the driver. An arrest involves three elements: (1) authority to arrest; (2) assertion of that authority with intention to effect an arrest; and (3) restraint of the person to be arrested. (People v. Mirbelle, 276 Ill.App. 533; People v. Colon, 9 Ill.App.3d 989, 996.) When one is approached by a police officer to be questioned about her identity and actions, this is only an accosting, not an arrest. (People v. Howlett, 1 Ill.App.3d 906.) The act relied on as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested. (People v. Jackson, 98 Ill.App.2d 238; People v. Smith, 5 Ill.App.3d 341, 347; People v. Bridges, 123 Ill.App.2d 58.) In the instant case the defendant’s own belief was “Oh, well, he don’t want anything of me so I went on.” When the defendant was first stopped she did not have reasonable ground to believe that she was under arrest. We conclude that defendant, or a reasonable man, innocent of any crime, would not think he had been arrested.

Unlike an arrest which requires probable cause, in a threshold inquiry of a citizen, aimed at effective crime prevention and detection, there is “‘[t]he recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’ ” People v. Howlett, 1 Ill.App.3d 906, 910, quoting from Terry v. Ohio, 392 U.S. 1, 22, 20 L.Ed.2d 889, 88 S.Ct. 1868.

It is apparent that the defendant was not under arrest at the time she discarded the plastic bag of marijuana onto the highway and that the decision of her attorney to omit the making of a motion to suppress the evidence, made with full knowledge of the facts, does not demonstrate that counsel was ineffective. In the instant case hindsight is no better than foresight. Further, it was the defendant’s theory that only a cigarette pack was thrown from the car. In this posture of the case it was clearly a matter of judgment whether a motion to suppress should be made. A mere error of judgment does not amount to incompetence of counsel. People v. Palmer, 27 Ill.2d 311, 314.

On November 2, 1972, an assistant public defender was appointed to represent the defendant. On December 4 it was revealed to the court that defendant had been and was regularly employed and was able to pay an attorney. The assistant defender suggested to the court that he withdraw as appointed public defender and appear thereafter in the case as private counsel for compensation. The defendant stated to the court, “Yes, sir. As I explained to him, I can’t pay him all at once, but I can pay him.” (Clearly referring to the defender who was in court with her.) The trial court refused to allow the defender’s suggestion, and defendant on appeal contends that this violated her constitutional right to be represented by counsel of her choice.

In simple terms the fact of this record is that defendant’s desire to engage private counsel was not any expression of a desire to hire a lawyer other than the one who represented her during trial but was an expression of willingness to pay her court-appointed counsel who had in fact previously represented her in an earlier case. She did not wish to discharge her attorney, she merely wanted to pay him. The cases cited by appellant have no application to the facts.

Judgment affirmed.

ALLOY, J., concurs.

Mr. JUSTICE STOUDER,

specially concurring:

I agree with the result by the majority of the court because I believe the result is in accord with the applicable precedents. However, I am disturbed about some of the reasoning employed in such precedents because of the apparent departure from our traditional concepts of arrest. To speak of “accost” or “stop” or “investigatory stop” as not being arrests suggests to me that we are employing euphemisms to avoid the application to arrests of well settled principles of law. If a police officer in his line of duty restrains an individual’s liberty, then an arrest has occurred, and calling it by some other name does little credit to our adherence to legal principles. Where, as in this case, the testimony of the officer as well as the circumstances justify the conclusion that the defendant was not free to leave, then I find it hard to conclude other than that an arrest had occurred. This is not a case where the police officer was merely intending to exchange pleasantries or discuss the weather. It is clear from the officers’ testimony and their conduct that they believed the defendant was fleeing, which contradicts any inference that the defendant was free to leave or that her liberty had not been restrained. I therefore believe that the trend of decisions which encourages deprivation of liberty by police officers without reasonable cause as would be required if the action were classified as an arrest represents a trend inconsistent with our traditional concept of individual liberties.