author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIM R. LAYTON, Defendant-Appellant.
    Fourth District
    No. 4—89—0495
    Opinion filed March 29, 1990.

      Daniel D. Yuhas and Arden J. Lang, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

After a bench trial, defendant was convicted of the offense of unlawful possession of more than 30 and less than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1987, ch. 561/2, par. 704(d)), and was sentenced to a term of two years’ probation. Defendant appeals, arguing the trial court erred in denying his motion to suppress the evidence, which was discovered by a conservation officer in a warrantless search of an opaque bag in the cab of defendant’s truck on the first day of hunting season.

The facts were these. On November 8, 1986, the first weekend of upland game hunting season, conservation officer Timothy Sickmeyer was in the area of a railroad viaduct near the intersections of Vermilion County Road 4200 North in the area of County Road 670 East and 570 East at about 10:30 a.m. He observed quite a few hunters who had returned or were returning to the vicinity of their vehicles. As the hunters appeared to be quitting, Sickmeyer pulled up to check the hunters and the vehicles for possible violations of the Wildlife Code (Code) (Ill. Rev. Stat. 1987, ch. 61, par. 1.1 et seq.), i.e., checking hunting licenses, type of weapon, type of shot used and carried, game harvested and carried in game bags or oversized clothing and, in vehicles, areas or containers which might contain illegal game. Defendant was in the last group of these hunters Sickmeyer checked, and was standing at the back of his truck with his dogs. After checking defendant and the back of his truck, Sickmeyer proceeded to look inside the crew-type cab. Behind the driver and passenger seats were two smaller seats containing luggage, clothing, and other items, including an opaque plastic bag of a size which might contain illegal game. Sickmeyer testified that, based on experience, hunters often separate illegally taken game into such bags, held apart from legally taken game. On looking inside the bag, Sickmeyer discovered a green, leafy substance which appeared to be cannabis. On lifting this bag, Sickmeyer discovered four clear, Ziploc-style bags which also appeared to contain cannabis. Sickmeyer then noticed a gram scale located on the console of the truck. Defendant was arrested and the contraband was seized. At bench trial it was disclosed that when Sickmeyer turned and asked defendant about the bag containing what appeared to be cannabis, defendant said he found it on the tollway. Further, cigarette rolling papers were found on the console along with the gram scale. The substance, weighing 393.5 grams, tested positive for cannabis. Defendant presented no evidence.

Prior to trial, defendant filed a motion to suppress, arguing that (1) at the time of defendant’s detention and subsequent arrest, there was no outstanding warrant for defendant and the conservation officer had no probable cause to believe (a) defendant had committed or was about to commit a criminal offense, or (b) any warrant for his arrest was outstanding; and (2) subsequent to his detention, the arresting officer, without probable cause and without a warrant, illegally obtained evidence by conducting an intrusive search of defendant’s motor vehicle, all in violation of defendant’s rights under the fourth, fifth, sixth, and fourteenth amendments to the United States Constitution and under article I, sections 2, 6, and 10, of the Illinois Constitution of 1970. After hearing, this motion was denied. The motion was renewed at bench trial and again denied, whereupon defendant was convicted. No post-trial motion was filed. See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

The State contends that the warrantless search of the opaque plastic bag was conducted pursuant to section 1.19 of the Code, which provides:

“All authorized employees of the Department are empowered, pursuant to law, to enter all lands and waters to enforce the provisions of this Act. Authorized employees are further empowered to examine all buildings, private or public clubs (except dwellings) *** camps, vessels, cars (except sealed railroad cars or other sealed common carrier), conveyances, vehicles, watercraft or other means of transportation or shipping whatsoever, tents, game bags, game coats or other receptacles, and to open and examine any box, barrel, package, or other receptacle in the possession of a common carrier, which they have reason to believe contains wild birds or any part thereof*** or wild mammals *** taken, destroyed, bought, sold or bartered, shipped or held in possession contrary to any of the provisions of this Act, including administrative rules ***.
All authorized employees of the Department shall be given free access to and shall not be hindered or interfered with in making such examination ***.
Authorized law enforcement employees of the Department are empowered to conduct examination of equipment and devices in the field, pursuant to law, to ensure compliance with the provisions of this Act.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 61, par. 1.19.)

Defendant does not challenge the constitutionality of section 1.19 of the Code, but contends the statute’s “reason to believe” requirement was not met here. Defendant argues that a conservation officer cannot detain a hunter in the field and search receptacles in his vehicle which might contain illegal game unless the officer has probable cause or reason to believe that, in fact, this particular hunter has violated the Code. The trial court disagreed and upheld the search, which it characterized as administrative, citing Fulk v. Roberts (1987), 164 Ill. App. 3d 194, 517 N.E.2d 1098, Illinois v. Krull (1987), 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160, and People v. Mashaney (1987), 160 Ill. App. 3d 390, 513 N.E.2d 615.

In Fulk, the fifth district reversed a damages award on a two-count complaint alleging unlawful detention and a section 1983 action (42 U.S.C. §1983 (1982)). Plaintiff alleged that named defendants, game wardens, unlawfully detained him and, as a result, he suffered humiliation and emotional distress as well as harm to his reputation in the community. The conservation officers were in communication with an airplane in a concerted departmental effort to curtail “shining” activities, whereby hunters illegally used a spotlight to transfix game, making it easier to shoot. Prior to stopping Fulk, the officers had issued a ticket to another man, who was shining a light from his vehicle and was in possession of a loaded firearm when stopped. As the officers finished with that man, they observed Fulk’s vehicle turn off the main gravel road and a spotlight come on. The officers started after him, activating their red lights, and Fulk stopped and turned around. The officers did not know what Fulk was doing, so they stopped in the roadway and Fulk pulled up close to their vehicle and stopped his truck. The officers then conducted a brief investigation wherein, according to Fulk, the officers ordered him out of his vehicle and checked the cab of the truck for guns. Fulk’s explanation for the use of the spotlight was that it was in connection with his work on a drill at a mining site in the area. After the officers were satisfied Fulk was not in violation of the Code, they left. In reversing the judgment, the fifth district stated:

“Conservation officers have the same powers to detain, search and arrest as other law enforcement officers. (Ill. Rev. Stat. 1985, ch. 61, pars. 1.14, 1.15, 1.19.) Therefore, conservation officers may stop and temporarily detain a person for the purpose of a limited investigation, absent probable cause to arrest him, if the officers are able to point to specific and articulable facts which, taken together with reasonable inferences drawn from the officers’ experience, would reasonably warrant the extent of the intrusion. See People v. Beil (1982), 110 Ill. App. 3d 291, 442 N.E.2d 291, cert. denied (1983), 464 U.S. 824, 78 L. Ed. 2d 100, 104 S. Ct. 93.” Fulk, 164 Ill. App. 3d at 198, 517 N.E.2d at 1100-01.

In Krull, the Supreme Court ruled that the fourth amendment exclusionary rule did not apply to evidence obtained by a police officer, acting in objectively reasonable reliance on a statute authorizing warrantless inspection of records of the sale of motor vehicles and vehicular parts, and requiring licensees to allow examination of the premises of their place of business for determining the accuracy of these records. This ruling reversed a decision of the Illinois Supreme Court suppressing the evidence. (People v. Krull (1985), 107 Ill. 2d 107, 481 N.E.2d 703.) The statute in question had been held unconstitutional by a Federal district court ruling issued the day following the search. Krull, 480 U.S. at 344, 94 L. Ed. 2d at 371, 107 S. Ct. at 1164.

In Mashaney, the third district affirmed the trial court’s denial of a motion to quash a search warrant and suppress evidence. There, a police officer, acting on a tip, made an observation of marijuana being grown within a wooden stockade-type fence attached to defendant’s residence. The officer, acting on the local police chief’s representation that property beyond the fence was village property, entered a heavily wooded ditch beyond defendant’s fences and used binoculars and a telephoto lense to observe and photograph the stockade-fence area, observing marijuana plants growing inside. Based upon this information, a judge issued a warrant, and the marijuana plants were seized from defendant’s garden. Evidently the land the officer entered to obtain the photographs underlying the warrant was not public land. The Mashaney court found that police acted in objective good faith in observing defendant’s property and that application of the exclusionary rule would not serve the rule’s purpose of deterring malicious conduct, but would only force crime investigators to master the skills of precisely establishing land-ownership lines.

On appeal, defendant argues the trial court erroneously analogized to Fulk, Krull, and Mashaney, and to cases upheld following legitimate roadblock stops of motorists. Defendant maintains examination of the case law on vehicle stops at roadblocks, checkpoints, and by roving patrols leads to the “inescapable conclusion” that the search and seizure in this case violated the fourth amendment.

I

Defendant first looks to Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391, wherein the Court held that a random stop and detention of a driver to check for a valid driver’s license and vehicle registration violated the fourth amendment as an unreasonable seizure. Justice Blackmun concurred, joined by Justice Powell, stating:

“The Court *** carefully protects from the reach of its decision other less intrusive spot checks ‘that do not involve the unconstrained exercise of discretion.’ The roadblock stop for all traffic is given as an example. I necessarily assume that the Court’s reservation also includes other not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop. And I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court’s balancing process, and the value factors under consideration, would be quite different.
With this understanding, I join the Court’s opinion and its judgment.” (Prouse, 440 U.S. at 663-64, 59 L. Ed. 2d at 674, 99 S. Ct. at 1401 (Blackmun, J., concurring).)

Defendant maintains that the majority’s silence on whether its holding extended to game wardens searching for game violations “means that the majority chose to make no such exception to its ruling.” We disagree. Prouse had nothing to do with game wardens searching for game violations, and the Prouse majority was under no obligation to comment on facts not before it.

Defendant next looks to Supreme Court decisions on roving patrols, comparing the border patrol cases of Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37 L. Ed. 2d 596, 93 S. Ct. 2535, United States v. Brignoni-Ponce (1975), 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574, and United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074. In Almeida-Sanchez, the petitioner was stopped by United States Border Patrol agents on a highway in California, some 25 air miles north of the border. This road lies, at all points, north of a major east-west highway entirely within the United States, and nowhere reaches the Mexican border. The Border Patrol had no search warrant and there was no probable cause of any kind for the stop or subsequent search — not even the “reasonable suspicion” found sufficient for a street detention and weapon search in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, and Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921. The Almeida-Sanchez Court looked to the narrow exception to the warrant requirement first established in Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280, wherein the Court approved a portion of a statute providing for warrantless searches of automobiles when there was probable cause to believe they contained illegal alcoholic beverages, and distinguished the warrantless administrative inspections of commercial enterprises engaged in businesses closely regulated and licensed by the government in Colonnade Catering Corp. v. United States (1970), 397 U.S. 72, 76-77, 25 L. Ed. 2d 60, 64, 90 S. Ct. 774, 777 (stressing long history of Federal regulation and taxation of manufacture and sale of liquor), and United States v. Biswell (1972), 406 U.S. 311, 312 n.1, 315-16, 32 L. Ed. 2d 87, 90 n.1, 92, 92 S. Ct. 1593, 1594 n.1, 1596 (noting pervasive system of regulation and reporting imposed on licensed gun dealers) — finding the underlying border patrol search more comparable to the warrantless administrative inspection disapproved in Camara v. Municipal Court (1967), 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727.

In Brignoni-Ponce, Border Patrol agents patrolling an area near the Mexican border, where a fixed checkpoint had been closed because of inclement weather, pursued respondent’s car and stopped it, saying later their only reason for doing so was that its three occupants appeared to be of Mexican descent. The officers questioned respondent and his two passengers about their citizenship and learned the passengers were illegal aliens. All three were arrested, and respondent was convicted of two counts of knowingly transporting illegal immigrants. He appealed, arguing the fourth amendment prohibited the use of roving patrols to search vehicles without a warrant or probable cause. The government interpreted statutory provisions as granting authority to stop moving vehicles and question the occupants about their citizenship, even when its officers have no reason to believe the occupants are aliens or that other aliens may be concealed in the vehicle. The Court held:

“[B]ecause of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion.” Brignoni-Ponce, 422 U.S. at 881, 45 L. Ed. 2d at 616-17, 95 S. Ct. at 2580.

In Martinez-Fuerte, the Court held the fourth amendment was not violated when Border Patrol agents stopped vehicles at a fixed checkpoint for brief-questioning, even though there was no reason to believe the particular vehicle contained illegal aliens and, further, operation of such a checkpoint need not be authorized in advance by a judicial warrant.

Defendant also cites People v. Bartley (1985), 109 Ill. 2d 273, 486 N.E.2d 880, wherein the supreme court concluded roadblocks are not per se violative of the fourth amendment. There, a driver’s license checkpoint was established. Defendant points to the fact that vehicles were stopped in a preestablished, systematic fashion, eliminating the potential for arbitrary enforcement, and that there was advance publicity. The Bartley court noted that the police there did not publicize the fact that the purpose of the roadblock was to detect and deter drunken drivers. Bartley, 109 Ill. 2d at 292, 486 N.E.2d at 888. See generally Annot., 37 A.L.R.4th 10 (1985) (validity of roadblock searches to discover vehicle or driving violations).

Defendant contends this case is instead comparable to that of United States v. Munoz (9th Cir. 1983), 701 F.2d 1293. There, a game trooper patrolling the national forest was conducting a roving patrol in a State police vehicle with a biologist from the State’s Department of Fish and Wildlife. They were stopping all vehicles in the area to check for wood-cutting permits, to conduct a brief interview asking what park visitors had seen or done, and to check for possible game violations. They flagged down the defendant’s truck, and thereafter saw cut wood in the back of the truck. The game trooper thereafter saw deer hair in the front of defendant’s truck and that defendant’s hands were covered with blood. He told the defendant to get the deer from under the wood in the back of the truck and, when defendant unloaded the wood and pulled out the doe, the game trooper saw bird tail feathers in the truck, which he recognized as those of a golden eagle. The Ninth Circuit held that roving vehicle stops without founded suspicion violate fourth amendment rights.

II

We find Munoz is inapposite on its facts. The conservation officer here was not making random stops of citizens merely passing through the area. He was checking hunters.

Neither do we find the roadblock or checkpoint stop cases dispositive. The State cites State v. Halverson (S.D. 1979), 277 N.W.2d 723, wherein the supreme court of South Dakota held a game stop conducted by a trooper stopping vehicles with the use of his red signal lights, in the presence of four other State-owned vehicles at the game check site, was not violative of the defendant’s constitutional rights. Therefore, the officer, seeing an expired motor vehicle safety inspection sticker, then had probable cause for the further detention of defendant, which resulted in his arrest for offenses of driving under revocation. The Halverson court reasoned:

“The game checkpoint stop of vehicles involved here was for the purpose of determining whether the occupants were in possession of any game animal. Since it is a privilege to hunt wild game, a hunter tacitly consents to the inspection of any game animal in his possession when he makes application for and receives a hunting license. It is apparent from the evidence that the defendant was not hunting prior to the stop. The intrusion into the right of the non-hunter to the uninterrupted use of the highways is slight and greatly outweighed by the public interest in the management and conservation of wildlife in this state.” (Halverson, 277 N.W.2d at 724-25.)

The fact that such roadblock and checkpoint stops have been upheld cannot be equated to a rule that these are the only methods of enforcing game laws which do not violate the fourth amendment.

The trial court here concluded that this stop, and the ensuing search, was administrative in nature. (See J. Hall, Search and Seizure §11:15, at 463-64 & nn.17.14 through 17.16 (Supp. 1988).) In Camara and the companion case, See v. City of Seattle (1967), 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737, the Supreme Court found fourth amendment interests were implicated in warrantless administrative inspections so as to require that government inspectors, if turned away by the owner or occupant of premises, must obtain a warrant. (See generally Annot., 53 A.L.R.4th 1168 (1987) (government health officer’s warrantless search, propriety of, post-Camara).) The rationale underlying such a rule in the administrative inspection of premises and businesses cannot, however, be said to apply equally in the context of inspections by game wardens in the field.

We recognize that some other courts have upheld warrantless searches in game and wildlife regulation under (1) an emergency exception to the administrative warrant requirement, or (2) a pervasively regulated industries exception.

The Supreme Court stated in Camara that its holding was not “intended to foreclose prompt inspections, even without a warrant, that the law has traditionally upheld in emergency situations.” (Camara, 387 U.S. at 539, 18 L. Ed. 2d at 941, 87 S. Ct. at 1736.) The emergency exception to the administrative warrant requirement has been deemed to include, for example, those cases where fire marshalls enter a still-smoldering building for the purpose of determining the cause of the blaze before relevant evidence is destroyed. (See, e.g., Michigan v. Tyler (1978), 436 U.S. 499, 56 L. Ed. 2d 486, 98 S. Ct. 1942; see generally Annot., 31 A.L.R.4th 194 (1984) (admissibility, in criminal case, of evidence discovered in warrantless search connected with fire investigation).) As stated in a treatise on search and seizure:

“Some courts have held that warrantless inspections by fish and game officials may be carried out under the exigent circumstances exception, since a requirement that a warrant be obtained before an inspection is made would frustrate the purpose of the statutes establishing limits on the types and amount of animals that may be caught. Therefore, the boarding of fishing vessels or the stopping of vehicles in a hunting area without a warrant has been upheld because of the ‘readily movable’ quality of the evidence of a game violation.” (I W. Ringel, Searches & Seizures, Arrests & Confessions § 14.3(b)(1), at 14-17 (2d ed. 1989).)

Similarly, although the Supreme Court has suggested that the persuasively regulated industries exception to the warrant requirement is a narrow one, as observed by one commentator, “[c]ourts have also found that hunting and commercial fishing are persuasively regulated businesses ***.” I W. Ringel, Searches & Seizures, Arrests & Confessions §14.3(b)(2), at 14-20 through 14-21 (2d ed. 1989), citing United States v. Raub (9th Cir. 1980), 637 F.2d 1205, cert. denied (1980), 449 U.S. 922, 66 L. Ed. 2d 150, 101 S. Ct. 322 (commercial fishing); Tollman v. Department of Natural Resources (1984), 421 Mich. 585, 365 N.W.2d 724 (commercial fishing); State v. Westside Fish Co. (1977), 31 Or. App. 299, 570 P.2d 401 (wholesale fish dealer); and Halverson, 277 N.W.2d 723 (hunting).

III

We conclude the search here was lawfully executed under the State’s police power. We disagree, however, with characterizing this as an administrative search, and so decline to treat it as within the aforementioned exceptions to the warrant requirement.

In this State, hunting is highly regulated, arguably more so than driving. Hunting is a privilege, not a right, to which licensing requirements apply. Because of the nature of hunting, we conclude that licensing (or hunting without a license) may be deemed consent to some intrusions. In so holding, we are cognizant of the concerns of such commentators as Professor LaFave (see 4 W. LaFave, Search and Seizure §10.8(e), at 85-89 (2d ed. 1987); 3 W. LaFave, Search and Seizure §8.2(l), at 219-21 (2d ed. 1987)) and, accordingly, the exception we recognize is a narrow one.

Section 1.19 of the Code authorizes in-the-field examination of equipment and devices, and necessarily authorizes some brief stop and investigation by a conservation officer in relation to conducting such an examination. Similarly, section 1.19 authorizes examination of vehicles, game bags, game coats, or other receptacles as game officers have “reason to believe” contain wild birds or mammals. “Reason to believe,” i.e., probable cause to search, arises from indicia that the person in question is a hunter, immediately or very recently engaged in hunting. Such indicia might include wearing hunting garb, carrying a weapon, and carrying game or a game bag, in conjunction with location in or near a hunting situs. Here, the officer’s testimony shows such indicia were present.

As defendant fit what might be termed a “hunter’s profile,” we deem implied consent sufficient to sustain the search — which we emphasize was, according to the officer’s testimony, limited to containers of a size and type as experience dictated might be used for holding separate any illegally taken game, and did not extend, e.g., to locked luggage.

This exception is limited to conservation and game officers pursuing game violations — and does not extend to law enforcement officers generally — and is an exception because of necessity.

It is elemental that wildlife licensing and regulatory provisions must be enforceable during the hunt and immediately following it. The roving conservation officer patrol stopping hunters encountered in the field, as here, does not violate the fourth amendment. Neither was the search unlawful.

Accordingly, for the reasons herein stated, we affirm.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. CLARK, Defendant-Appellant.
    Fourth District
    No. 4—89—0282
    Opinion filed March 29, 1990.
    Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Huschen, State’s Attorney, of Eureka (Kenneth R. Boyle, Robert J. Biderman, and J.A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Defendant Michael A. Clark appeals from the sentence entered upon his negotiated plea of guilty to a felony offense. We vacate the sentence imposed and remand.

On December 22, 1988, pursuant to a plea agreement, defendant pleaded guilty to the offense of communicating with a witness (Ill. Rev. Stat. 1987, ch. 38, par. 32—4(b)), a Class 4 felony. The Woodford County circuit court accepted the plea of defendant and entered a judgment of conviction on the charged offense. The circuit court later sentenced defendant to a nine-month term of imprisonment with a 13-day credit for time served on February 2, 1988.

On February 14, 1989, defendant filed a motion to reconsider the sentence imposed on judgment of conviction. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—1(a)(7), (c).) The sentence was invalid because the minimum sentence of imprisonment for a Class 4 felony is one year. The circuit court granted the motion and resentenced defendant to a 30-month term of conditional discharge with a 38-day credit for time served on March 2, 1989. The circuit court also ordered defendant to serve an eight-month term of periodic imprisonment. The defendant was to be released for 12 hours on May 14, 1989, and then return to jail. He was also to be released for the final 45 days of the sentence.

On March 9, 1989, defendant filed another motion to reconsider the modified sentence imposed on judgment of conviction. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(7).) The motion alleged the sentence effected an improper increase in punishment. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(c).) The circuit court denied that motion on March 20, 1989.

On April 3, 1989, defendant filed a timely notice of appeal in the action. The defendant was admitted to bond pending appeal. The sole issue on review is whether the circuit court imposed an improper sentence against defendant on the judgment of conviction.

The determination and imposition of sentence on a criminal defendant is a matter resting in the sound discretion of the circuit court. Absent an abuse of discretion, the determination of the circuit court will not be altered on review. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

The provisions of the Unified Code of Corrections must be read in an interrelated fashion. (People v. McMullen (1980), 88 Ill. App. 3d 611, 615, 410 N.E.2d 1174, 1177.) The charged offense, communicating with a witness, is a Class 4 felony. (Ill. Rev. Stat. 1987, ch. 38, par. 32—4(b).) The circuit court is authorized to sentence defendant to a term of conditional discharge not to exceed 30 months on that offense. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—5—3(b)(3), 1005—6—2(b)(2).) The circuit court is further authorized to combine that sentence with up to an 18-month term of periodic imprisonment. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005-6-3(b)(1), 1005-7-1(d).) Such a combined sentence is improper, however, where the circuit court has additionally ordered defendant to serve a sentence of straight imprisonment in excess of 90 days. Ill. Rev. Stat. 1987, ch. 38, par. 1005—7—1(c).

Defendant was to begin his incarceration on March 2, 1989. He would serve in excess of 70 days until May 14 and then be released for 12 hours. He would then return to jail and be incarcerated for over 120 days from May 15 until September 18. He would then be released for the last 45 days of his term, which would expire on November 2, 1989. Because the trial court granted credit for 38 days already served in custody, the defendant would actually be released in early August.

We do not believe the eight-month term imposed in this action can be logically construed as periodic imprisonment under the prescribed statutory provisions. (See People v. Shook (1980), 86 Ill. App. 3d 174, 407 N.E.2d 976.) Despite the label attached to its disposition, the circuit court actually sentenced defendant to an excessive term of straight imprisonment. First, the circuit court did not structure any periodic releases into the prison term other than the single 12-hour period of release. (See Ill. Rev. Stat. 1987, ch. 38, par. 1005—7—1(a).) Second, the circuit court did not disclose any purpose that disposition would permit defendant to serve. See Ill. Rev. Stat. 1987, ch. 38, par. 1005— 7—1(b).

While defendant would not serve more than 90 days of straight imprisonment, he would serve over 150 days of incarceration with only a 12-hour release. That release would serve no purpose other than to break up the imprisonment. In these circumstances, the circuit court imposed an improper sentence on the judgment of conviction. See People v. Evans (1984), 124 Ill. App. 3d 634, 464 N.E.2d 1083.

We need not consider whether the modified sentence imposed against defendant was an improper increase in punishment. Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(c); see also People v. Hickey (1985), 138 Ill. App. 3d 749, 486 N.E.2d 372.

We affirm the conviction, but vacate the periodic imprisonment term from the conditional discharge order and remand the action for resentencing.

Affirmed in part; vacated in part, and remanded.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE SPITZ

text:
    GEORGE S. BLAGOUE, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, State of Illinois, Defendant-Appellant.
    Fourth District
    No. 4—89—0933
    Opinion filed March 30, 1990.

      Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Linda J. Hay and Tanya Solov, Assistant Attorneys General, of Chicago, of counsel), for appellant.
    George S. Blagoue, of Carlyle, appellee pro se.

   JUSTICE SPITZ

delivered the opinion of the court:

Defendant, Secretary of State Jim Edgar (Secretary), appeals the circuit court’s grant of a temporary restraining order (TRO) staying the suspension of plaintiff’s driving privileges. We reverse the circuit court’s order.

Plaintiff was involved in an automobile accident on September 18, 1988, in St. Clair County, Illinois. Plaintiff did not have automobile insurance. The Secretary held an administrative hearing on July 26, 1989, to determine whether plaintiff’s driving privileges should be suspended for failure to comply with the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 951/2, par. 7—100 et seq.). The hearing officer concluded that plaintiff was more than 50% at fault, and ordered plaintiff’s driving privileges suspended until he posted a $505 bond.

Plaintiff refused to post the bond, and instead filed a pro se complaint against the Secretary in the circuit court of St. Clair County on August 28, 1989. Plaintiff sought judicial review of the administrative decision suspending his driving privileges. The Secretary was served with summons on September 1,1989.

Plaintiff received notice on August 30, or September 1, 1989, that his driving privileges would be suspended as of September 7, 1989. This suspension was to remain in effect until plaintiff posted bond or until the administrative decision was overturned.

On September 6, 1989, plaintiff filed an ex parte motion for a TRO. Plaintiff’s motion alleged that (1) critical evidence had not been presented at the administrative hearing; (2) if such evidence was presented, the court would overturn the administrative ruling; (3) plaintiff could not afford to pay the $505 bond; (4) plaintiff is a salesman and is required to travel by automobile; (5) plaintiff has no other means of support; and (6) suspension of plaintiff’s driving privileges would cause irreparable financial harm to plaintiff and his family. Plaintiff concluded by asking the court to “issue a temporary restraining order staying the suspension” of plaintiff’s driving privileges until the judicial review of the administrative hearing.

The circuit court granted plaintiff’s motion for a TRO on September 6, 1989. On September 14, 1989, the circuit court extended the TRO until the judicial review of the administrative hearing, which was set for December 11, 1989.

On September 25, 1989, the Secretary filed a motion to transfer venue to Sangamon County, Illinois, for lack of jurisdiction in accordance with the provisions of section 2 — 118(e) of the Code, which provides that such suits may only be brought in the circuit courts of either Sangamon or Cook Counties. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2—118(e).) The motion was heard and granted on October 11, 1989. It was at the October 11 hearing that the assistant Attorney General for defendant, Patricia Hayes, first learned of the TRO against the Secretary and of its subsequent extension. There was some dispute as to whether assistant Attorney General McKeel actually received copies of the TRO and extension orders.

On October 20, 1989, the Secretary filed a motion to dissolve the TRO and dismiss the case in St. Clair County. The motion was heard on October 25, 1989, and denied on November 6, 1989. The case was subsequently transferred to Sangamon County pursuant to the October 11 order. The Secretary thereafter filed notice of interlocutory appeal.

The Secretary contends that the circuit court erred when it refused to dissolve the TRO, which was actually an order staying the Secretary’s decision to suspend plaintiff’s driving privileges. Specifically, the Secretary argues that plaintiff failed to give notice of the stay and failed to show good cause for the entry of the stay order. We need not address the Secretary’s argument as we find the circuit court of St. Clair County was without jurisdiction to enter the September 6 order.

Although it might appear that the circuit court entered a TRO pursuant to section 11—101 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 11— 101), its order was a stay pursuant to section 3 — 111 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3— 111). Plaintiff’s motion and the court’s orders indicated that a TRO was sought and granted. Moreover, when questioned at the October 11, 1989, hearing about its jurisdiction to enter the September 6 order, the circuit court stated:

“Nowhere does it say in the statute that I can’t entertain a Motion for Temporary Restraining order against Mr. Edgar in St. Clair County. The only thing it says is that I can’t hear the administrative review in St. Clair County. So I granted your Motion for Temporary Restraining order.”

The Code, however, provides that any action of the Secretary suspending, revoking, or denying any license, permit, registration, or certificate of title shall be subject to review under the Administrative Review Law. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2—118(e); Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.) Section 3— 102 of the Administrative Review Law provides:

“Article III of this Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the Act creating or conferring power on such agency, by express reference, adopts the provisions of Article III of this Act or its predecessor, the Administrative Review Act. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not hereafter be employed.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 3—101.

Where an act creating or conferring power on an administrative agency provides that judicial review will be accomplished according to the Administrative Review Law, the use of preexisting methods to secure judicial review is prohibited, and the review law itself is the exclusive means of review. (People ex rel. Chicago & North Western Ry. Co. v. Hulman (1964), 31 Ill. 2d 166, 201 N.E.2d 103; City of Wood Dale v. Illinois State Labor Relations Board (1988), 166 Ill. App. 3d 881, 890, 520 N.E.2d 1097, 1103.) Thus, courts have held that the purpose of the Administrative Review Law is to dispense with the use of all other actions as means of reviewing administrative decisions, including mandamus, certiorari, and injunctive relief, in order to provide a single uniform method of review. City of Wood Dale, 166 Ill. App. 3d at 890, 520 N.E.2d at 1102; Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.

In the instant case, plaintiff initially participated in proceedings before the Secretary under the Code. Thus, any review of the Secretary’s decision would be made pursuant to the Administrative Review Law. One of the powers enumerated in the Administrative Review Law is the power to stay an administrative decision in whole or in part pending the final disposition of the case. (Ill. Rev. Stat. 1987, ch. 110, par. 3— 111(1).) The court’s September 6 order and subsequent extension, therefore, though labeled a TRO and extension of the TRO, was in fact a stay made pursuant to the Administrative Review Law. See Continental Air Transport Co. v. Carpentier (1958), 19 Ill. App. 2d 340, 152 N.E.2d 488 (where a temporary injunction sought under the Administrative Review Act of 1957 was treated as a stay of the decision of an administrative agency).

The circuit court of St. Clair County was without jurisdiction to enter a stay pursuant to the Administrative Review Law. Reviews of administrative decisions under the Illinois Vehicle Code may only be heard in Sangamon and Cook Counties. The policy behind this statute is to centralize the proceedings for the benefit of the Secretary. The court’s TRO order and subsequent extension was thus void ab initio and is reversed.

Reversed.

LUND and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY LEE LOGSTON, Defendant-Appellant.
    Fourth District
    No. 4—89—0112
    Opinion filed March 30, 1990.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On November 23, 1988, following a jury trial in the circuit court of McLean County, defendant Tony Lee Logston was convicted of aggravated battery in that, in committing a battery, he knowingly caused bodily harm to a person “on or about a *** public place of accommodation or amusement,” here, the Winner’s Lounge. (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(8).) He was subsequently sentenced to an extended term of 10 years’ imprisonment. We affirm.

Defendant maintains on appeal he was denied his constitutional right to have the jury determine the facts of his case when the trial court instructed the jury, over defendant’s objection, “[a] tavern is a public place of amusement.” Defendant argues the court’s instruction was tantamount to a mandatory, conclusive presumption that the tavern where the fight took place was “a public place of amusement” and precluded the jury from considering the second element of the offense of aggravated battery. Defendant argues that the State was thus relieved of the burden of proving that element. Defendant does not dispute the sufficiency of the evidence to prove he committed an aggravated battery.

At trial, Gabriel Garcia testified that he was involved in a fight with defendant on December 2, 1987, at a bar called the Winner’s Lounge. A number of witnesses to the fight, including defendant’s father, also testified to the events of that evening. Police officer Robert McGowen testified that he placed defendant under arrest after the incident. McGowen testified that the Winner’s Lounge was a “public bar-tavern.” On cross-examination, however, he admitted that minors were not allowed in the building without their parents, and that the lounge did not serve food.

Defendant seeks to analogize the situation here, where the court instructed the jury that a tavern was a place of public accommodation, with the situation where a court instructs the jury in a criminal case as to a mandatory presumption arising from the evidence which is favorable to the prosecution. In County Court of Ulster County v. Allen (1979), 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213, the Court held that for a conclusive presumption against an accused to be constitutionally permissible, the presumed fact must always arise from the predicate facts. The defendant maintains that taverns are not necessarily places of public accommodation, and that here evidence that admission to the instant tavern was restricted to adults and minors accompanied by their parents, and evidence that no food was served, created a question of fact as to whether the tavern was a place of public accommodation.

In People v. Richards (1975), 28 Ill. App. 3d 505, 328 N.E.2d 692, a pre-Ulster County case, a defendant was charged and convicted of armed robbery. The evidence indicated the defendant had committed a robbery using a sawed-off gun of some sort. Some evidence indicated the weapon was inoperable while being used. Over objection by the defense, the jury was instructed that the State was not required to prove nonmaterial allegations of the charge, and the type of weapon used was not material. Thrice during closing argument, the prosecutor told the jury it would be instructed accordingly. The instruction and the supporting arguments were held to erroneously eliminate an element of the case which the State had to prove beyond a reasonable doubt. The Richards court noted that in People v. Dwyer (1927), 324 Ill. 363, 155 N.E.2d 316, the Illinois Supreme Court had indicated that where no doubt of the character of a weapon exists, the court can determine whether the weapon is deadly, otherwise the issue is before the jury. However, that statement was made prior to Ulster County.

In support of his argument that the giving of the instruction was reversible error, defendant relies partially upon People v. Johnson (1980), 87 Ill. App. 3d 306, 409 N.E.2d 48. There, the defendant was convicted of aggravated battery following a fight in a tavern rest room. The court determined that the legislature did not intend to include a tavern rest room within subsection (b)(8) of the aggravated battery statute. The court noted:

“We believe the intent of the legislature, as expressed by the language of the statute, is not to include a tavern restroom within this subsection of the statute. A tavern is private property open to the public for a limited purpose. To include a tavern restroom within the definition of ‘public property or public place of accommodation or amusement’ (Ill. Rev. Stat. 1977, ch. 38, par. 12—4(b)(8)) would not comport with the legislative intent of the statute.” Johnson, 87 Ill. App. 3d at 308, 409 N.E.2d at 50.

In People v. Lee (1987), 158 Ill. App. 3d 1032, 1034, 512 N.E.2d 92, 93, this court rejected the analysis of Johnson in upholding a defendant’s conviction for an aggravated battery based upon the fact the battery occurred on “a public place of accommodation or amusement.” This court held the parking lot outside a convenience store was such a place. We deemed the accessibility of the public to the place to be the decisive factor and held the legislature did not intend the statute to be narrowly interpreted.

Prior to Lee, in People v. Murphy (1986), 145 Ill. App. 3d 813, 496 N.E.2d 12, the Third District Appellate Court had indicated that at least for purposes of section 12 — 4(b)(8) of the Criminal Code of 1961, a privately owned tavern is a public place of amusement. The court noted, “the terms ‘place of public accommodation or amusement’ seem to apply genetically to places where the public is invited to come into and partake of whatever is being offered therein.” (Murphy, 145 Ill. App. 3d at 815, 496 N.E.2d at 14.) In addition, in People v. Ward (1981), 95 Ill. App. 3d 283, 287-88, 419 N.E.2d 1240, 1244, the court rejected the defendant’s contention that the parking lot of a Holiday Inn was not a public place. The court noted it was “irrelevant” whether the property were publicly or privately owned. Rather, the court said, what was significant was that the offense occurred in an area accessible to the public.

In Lee, Murphy, and Ward, the courts were passing upon the sufficiency of allegations and evidence to support convictions for aggravated battery. The opinions did not pass upon the instruction which is present here. The Murphy court did indicate that an ordinary tavern open to customers is, as a matter of law, “a place of public accommodation or amusement.” Nevertheless, despite the precedent of these cases, we conclude the instruction in issue should not have been given.

The statement in the State’s instruction saying “a tavern is a place of public amusement” is an incorrect statement of law. A “tavern” is “an establishment where alcoholic beverages are sold to be drunk on the premises.” (Webster’s Ninth New Collegiate Dictionary 1209 (1983).) Such an establishment does not necessarily give the necessary access to the public to qualify as “a place of public amusement.” It could be a very private, exclusive club house. Moreover, no precedent for such an instruction exists in the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (IPI Criminal 2d). Various definition of terms instructions are listed. (IPI Criminal 2d Nos. 4.01 through 4.18.) Most instructions listed there concern statutory definitions. Instructions not based upon IPI Criminal 2d should be drafted with great care. Here, no definition to explain the meaning of the statute was necessary.

Despite the error in the instruction, we do not deem reversal and remandment to be required. Taking the evidence most strongly in favor of defendant, a trier of fact could not reasonably determine the Winner’s Lounge was not sufficiently open to the public to qualify as “a public place of accommodation or amusement” because of the restrictions placed on minors or because of any lack of food service. If the restrictions on minors eliminated this tavern from being a “public place” few taverns would so qualify. Accordingly, the public nature of the establishment was so conclusively established that even if constitutional error in the instruction arose from the Ulster County precedent, the instruction would not have been harmful. (Rose v. Clark (1986), 478 U.S. 570, 92 L. Ed. 2d 460, 106 S. Ct. 3101.) Any error was, indeed, harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.

We affirm for the stated reasons.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


text:
    LOIS JOHNSTON, n/k/a Lois Enright, Plaintiff-Appellee, v. DONALD JOHNSTON, Defendant-Appellant (The Department of Public Aid, Intervening Appellee).
    Fourth District
    No. 4—89—0774
    Opinion filed March 30, 1990.

      Thomas W. Funk, of Lincoln, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 24, 1989, petitioner Lois Johnston, n/k/a Lois Enright, and the Illinois Department of Public Aid, an intervening petitioner, acting pursuant to section 10 — 10 of the Illinois Public Aid Code (Ill. Rev. Stat. 1987, ch. 23, par. 10—10) filed a petition in the circuit court of Logan County seeking a judgment for past-due, court-ordered, child support payments from petitioner’s former husband, respondent Donald Johnston. After holding an evidentiary hearing, the court entered a judgment on September 5, 1989, in favor of petitioner and against respondent in the sum of $43,030. The case turns upon the question of whether under the decision in Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125, the doctrine of equitable estoppel as a defense to liability for past-due child support has been completely abolished. The circuit court concluded it had. We hold the doctrine has been restricted but not completely abolished, and that it applies here. Accordingly, we affirm in part, reverse in part, and remand.

On June 17, 1974, the circuit court had granted petitioner a divorce from respondent and awarded her the custody of their five children. The court ordered respondent to pay to petitioner, as child support, the sum of $50 per week from July 17, 1974, to May 31, 1976, and $70 per week thereafter. After being unable to obtain service on respondent in Illinois to obtain relief from respondent’s past-due support and to obtain a greater amount of support, petitioner proceeded under the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1975, ch. 68, par. 101 et seq.). On June 1, 1976, the circuit court transmitted her petition for relief to the circuit court in Randall County, Texas, where respondent resided. After obtaining service on respondent, the latter court entered an order on July 26, 1976, requiring him to pay $150 per month, $50 of which was to be applied to an arrearage of $1,000, which then existed. The support was ordered to be paid for the three younger children of the parties, Jeffrey, Scott, and Tonya. By then, the two older children were emancipated.

Subsequent to the order of the Texas court, no modification of the support order ever occurred. The parties do not dispute that soon after the Texas order, Jeffrey was committed to the Department of Corrections of the State of Illinois, where he remained until he was emancipated. Neither party was required thereafter to give him full support although petitioner testified she was required to send Jeffrey money from time to time for incidentals. The major dispute concerns the support of Scott and Tonya. The parties agree that on August 8, 1977, petitioner and respondent signed a written document purporting to be an agreement that Scott would thereafter live with respondent and that petitioner would “expect no child support for him as long as he” continued to live with respondent. The evidence conclusively showed Scott had a severe discipline problem, and his mother could not handle him. Scott then continued to live with respondent until emancipated, and petitioner did not furnish him any support.

Respondent, Scott, and one of the parties’ older children all testified that at the time the written document described was executed, petitioner, in their presence, told respondent that if respondent would take Scott and support him she would not expect any more child support from respondent. Petitioner testified she understood the agreement to be that she was giving up support only in regard to Scott. Her position is supported by a letter written by respondent to the Logan County State’s Attorney in 1979 stating he, respondent, would resume support payments as soon as he was able to do so. Which version of these conversations is accurate would be a question for the trier of fact were the issue material. However, as we will explain, we deem the question of whether petitioner agreed that all support be discontinued, or only that in regard to Scott, to be immaterial, because we hold that regardless of the nature of the agreement between the parties, respondent has no equitable defense in regard to support for Tonya.

As we have indicated, the circuit court held equitable estoppel did not apply, relying upon the decision in Blisset. There, application of the doctrine was attempted by a father who was under a court order to make support payments. He had entered into an agreement with the mother that he would forego visitation, and she would not require him to make support payments. In holding equitable estoppel to be inapplicable under those circumstances, the supreme court described the doctrine in these words:

“A claim of equitable estoppel exists where a person, by his or her statements or conduct, induces a second person to rely, to his or her detriment, on the statements or conduct of the first person. (Dill v. Widman (1952), 413 Ill. 448, 455-56[, 109 N.E.2d 765, 769].) The party asserting a claim of estoppel ‘must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts’ (Dill, 413 Ill. at 456[, 109 N.E.2d at 769]), and such reliance should be reasonable. Rockford Life Insurance Co. v. Department of Revenue (1986), 112 Ill. 2d 174, 185[, 492 N.E.2d 1278, 1283].” Blisset, 123 Ill. 2d at 169, 526 N.E.2d at 128.

The Blisset court then noted (1) the father had been told by a State’s Attorney he could not validly give up his rights of visitation thus putting him on notice the agreement was unreasonable; (2) to permit the forfeiture of visitation rights to constitute detriment to support an estoppel would be contrary to the best interests of the children and “frustrate the intent of child support and visitation orders” (Blisset, 123 Ill. 2d at 170, 526 N.E.2d at 129); (3) to permit estoppel to be imposed would permit the parents to bargain away the children’s rights of support; and (4) the fact the father had planned his affairs on the basis he would not have to pay support and was then suddenly faced with a large debt was not sufficient detriment. That court did not say a party owing unpaid, court-ordered child support could not be estopped from obtaining judgment for such monies owed. Rather, that court stated, “[w]e believe that [the father] has failed to establish the elements necessary to support a claim of equitable estoppel.” Blisset, 123 Ill. 2d at 169, 526 N.E.2d at 128.

In Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12, a father subject to a lump-sum child support order for four children reduced the amount of payments he made by a pro rata amount as each child reached majority. No purported agreement between the parties was involved. The wife was held not to be equitably estopped to obtain the full amount of arrearage even though she had fewer children to provide for as each became emancipated. However, that court recognized that in a proper case, equitable estoppel can prevent a spouse from recovery of past-due, court-ordered child support. In Anderson v. Anderson (1964), 48 Ill. App. 2d 140, 198 N.E.2d 342, equitable estoppel was held to constitute a defense to a petition for contempt against a father who had failed to make court-ordered support payments after being led to believe the child beneficiary of the support payments had been adopted. The mother had failed to inform the father this was not so.

More to the point, the court held the defense of equitable estoppel to lie in Strum v. Strum (1974), 22 Ill. App. 3d 147, 317 N.E.2d 59. There, the court upheld the dismissal of a petition for rule to show cause against a father for nonpayment of court-ordered support payments. The child had been living with the father, and he had been supporting her during the period of the arrearage. The evidence was disputed as to whether the mother had agreed these payments could be suspended during this time. Thus, the circuit court could properly have found she did so consent.

Most recently, in the case of In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 547 N.E.2d 749, this court applied equitable estoppel in upholding a circuit court decision denying a wife judgment against her former spouse for unpaid, court-ordered child support. The unpaid sums had accrued while the child for whom the support was designated was in the actual custody of the father, the former husband. The testimony was disputed as to whether the mother had agreed the father would not be required to furnish support while the child was in his actual custody.

Here, the elements of equitable estoppel, found not to exist in Blisset, exist to the extent that a portion of the support in arrears may equitably be deemed to be for the support of Scott. Respondent had not been advised that an agreement for petitioner to forego court-ordered support for Scott, if Scott lived with and was supported by him, was unenforceable or illegal. The agreement would not appear on its face to be unreasonable. The detriment to respondent in providing the support for Scott was real and does not appear to be contrary to the best interests of Scott. Visitation was not frustrated in any way. Scott’s rights of support were not bargained away, as his father actually supported him.

We fully appreciate the strong emphasis in Blisset that only the court can modify a support order. We fully recognize that the parties should have gone into court and sought an agreed modification of the support order at the time of the execution of the August 8, 1977, written document. However, we do not interpret Blisset to indicate a spouse may not, under some circumstances, be equitably estopped from obtaining court-ordered support which is in arrears. The strongest case for such a defense would appear to be that in regard to support for Scott here, where (1) he was in the actual custody of his father on a permanent basis; (2) Scott’s rights of support were not infringed as his father actually supported him; (3) the mother led the father to believe he did not need to provide support for Scott; and (3) unlike in Blisset, the mother would be getting a windfall for support she did not actually furnish.

We hold that whether the petitioner agreed respondent need not give her support for Tonya is immaterial, because even if she had so agreed, equitable estoppel would not lie as a defense to respondent for support attributed to Tonya. Respondent underwent no detriment in regard to Tonya’s support as he did not support her. Petitioner gets no windfall for reimbursement in regard to Tonya. To have relieved respondent of the obligation to support Tonya by an estoppel arising from an agreement with petitioner would be damaging to Tonya’s rights of support. The clear mandate of Blisset is that strong equities in favor of the delinquent support provider are necessary for equitable estoppel to be applicable. Indeed, we would have a hard time imagining a ground for application of the doctrine except in cases of great deceit being practiced against the errant spouse or where, as with Scott, the spouse under the support order, misled by an agreement with the other spouse, takes the custody of and actually fully supports the child.

Accordingly, we affirm the finding in favor of the petitioner but reverse the award of damages. We remand to the circuit court to determine the amount of back support which should equitably be attributed to the support of Scott and to reduce the amount of the award by that sum. The parties have stipulated as to the amount of support which has actually been paid and the amount due by the terms of existing court orders. The court need not reduce the support ordered by as much as one-half for that period but shall reduce it by such lesser amount as appears equitable.

Affirmed in part; reversed in part and remanded with directions.

KNECHT, P.J., and STEIGMANN, J„ concur.


text:
      In re G.W.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Sandra Simmons, Respondent-Appellant). — In re J.O.S., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Sandra Simmons, Respondent-Appellant).
    Fourth District
    Nos. 4—89—0630, 4—89—0631 cons.
    Opinion filed March 30, 1990.

      Mark S. Morthland, Assistant Public Defender, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    David L. Massey, of Decatur, guardian ad litem.

   JUSTICE LUND

delivered the opinion of the court:

The respondent brings an appeal from the termination of her parental rights in regard to her two surviving children, G.W.S. and J.O.S. Respondent argues the trial court improperly (1) refused to dismiss the State’s petition for failure to set forth with the required particularity the charges on which it proceeded; (2) failed to establish by clear and convincing evidence that the respondent was unfit; and (3) failed to enter appropriate findings to support its order. Finding no merit in any of the respondent’s arguments, we affirm the decision and order of the circuit court.

The State filed two separate petitions in the circuit court regarding the respondent’s three children. Macon County case No. 87 — J— 429 (case No. 4 — 89—0630) was filed concerning G.W.S., born September 6, 1985, and D.M.S., a girl born June 1, 1987; and Macon County case No. 88 — J—454 (case No. 4 — 89—0631) was filed concerning J.O.S., who was born on September 1, 1988, after the original petition was filed. For the purposes of the proceedings terminating parental rights, the circuit court handled the cases as a single matter. We have consolidated these cases on appeal, and our discussion below and decision apply to both cases.

For the purposes of this opinion we find it unnecessary to recount in any detail the evidence concerning the mistreatment which the respondent meted out to her children. It suffices to note that in November 1987 the respondent’s children were found to be neglected and abused and were placed in the guardianship of the Department of Children and Family Services (DCFS).

After a year of working with DCFS, the children were returned to the respondent. Shortly thereafter, D.M.S. died as a result of being abused by the respondent. On March 22, 1989, the respondent entered a guilty plea to a manslaughter charge in connection with the death of her daughter. The court accepted the respondent’s plea and sentenced her to four years in the Department of Corrections. On April 21, 1989, supplemental petitions seeking findings of unfitness and termination of parental rights were filed as to G.W.S. and J.O.S. On June 13, 1989, the court granted summary judgment for the State. On July 28, 1989, the court entered its finding of unfitness and terminated the parental rights of the respondent. A notice of appeal was filed on August 9, 1989.

The respondent first contends the trial court erred in refusing to dismiss the State’s petition for failing to properly apprise the respondent of the charges against her and for granting summary judgment. The essential test of the sufficiency of the petition is whether it reasonably informs the respondent of a valid claim under a general class of cases of which the court has jurisdiction. (In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242.) The requirement of pleading with specificity does not mandate there be more than a setting forth of the specific statutory grounds of unfitness. In re Dragoo (1981), 96 Ill. App. 3d 1104, 422 N.E.2d 263.

Both of the supplemental petitions contained multiple counts. However, both petitions alleged the respondent had been found guilty of the death of a child resulting from child abuse. Such a conviction, in and of itself, is sufficient under the statute to support a finding of unfitness. (See Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(f).) While the remaining counts in the petitions were vague, the respondent here was found unfit on the basis of her conviction alone. The petitions were sufficient to apprise of the charge against her in this regard.

Respondent also maintains the court could not enter summary judgment against her. The trial court relied on In re Ray (1980), 88 Ill. App. 3d 1010, 411 N.E.2d 88, in granting judgment. There the appellate court held that when a finding of unfitness was sought based on the murder conviction of the mother, summary judgment was appropriate. The respondent attempts to distinguish that case by suggesting the conviction here for manslaughter differentiates it. Section 1(D)(f) of the Adoption Act requires only that there be “a criminal conviction resulting from the death of any child by physical child abuse.” Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(f).

The respondent does not question her conviction or deny responsibility for her child’s death. Her contention is that by simply introducing the certified copy of her conviction, the State failed to show the death was the result of physical child abuse. However, the certified copy submitted to the court included all the counts of the information, including the count of involuntary manslaughter, to which the respondent pleaded guilty. This count recited that respondent picked up her child and violently shook her, causing her death. The respondent’s guilty plea necessarily incorporated the facts set out in the information and we find this is a sufficient basis for the trial court to have made a finding of physical child abuse. While we agree with respondent that termination of parental rights is a weighty matter and should not be undertaken lightly, this does not alter the statutory framework to increase the burden placed on the State.

The respondent also complains the court did not enter appropriate findings to support its decision. The respondent did not object to the final order nor were any post-trial motions filed. Though normally respondent’s objections would be waived, we choose to address the merits. As discussed above, all that was required in this case to support the court’s decision was the conviction showing the respondent’s acts of abuse resulted in the death of her child. In the orders finding the respondent unfit and terminating her parental rights, the court specifically finds that respondent is unfit because of her conviction. In the absence of any compelling argument by the respondent, we find no error here which requires us to reverse the trial court.

The judgments of the circuit court are affirmed.

Affirmed.

SPITZ and McCULLOUGH, JJ., concur.