author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS M. HOLOHAN, Defendant-Appellant.
    Fourth District
    No. 4—89—0896
    Opinion filed June 7, 1990.
    Fellheimer, Travers & Engelman, Ltd., of Pontiac (Robert M. Travers, of counsel), for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Dennis Holohan, was arrested for driving under the influence of alcohol. (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.) Defendant was admonished regarding the statutory summary suspension of his driver’s license and was asked to perform a breathalyzer test to which he agreed. Shortly after agreeing to perform the test but before actually doing so, defendant posted bond in the amount of $100.

Because of his asthma condition, defendant was unable to blow a sufficient amount of air into the breathalyzer despite his seven attempts to do so. The police officer then requested that defendant submit to a blood test to determine his blood-alcohol content, but defendant refused to do so.

The trial court determined that defendant’s refusal to submit to the blood test justified the statutory summary suspension of his driver’s license. Defendant appeals this decision, claiming that the police had no authority to administer the blood test after he had posted bond. Alternatively, defendant argues that he did not refuse to submit to a blood-alcohol test so as to trigger the statutory summary suspension. We disagree and affirm.

The trial court found that defendant and the police officer agreed that after the defendant posted bond he would submit to a blood-alcohol test. As a result, defendant cannot now claim that the police had no authority to continue to hold him and to administer a blood-alcohol test after he posted bond. Indeed, we note that the trial court deemed this agreement between the officer and defendant regarding the posting of bond as a “courtesy” shown by the officer, given the circumstances then present.

In addition, the trial court’s finding that the defendant refused to submit to a blood-alcohol test was not contrary to the manifest weight of the evidence. When the police officer asked the defendant if he would submit to a blood test, he replied, “not now.” We agree with the trial court that this refusal was sufficient to trigger the statutory summary suspension. A defendant’s refusal to submit to a blood test after failing to give a proper breath sample warrants the suspension of his driver’s license. People v. Rhoades (1989), 179 Ill. App. 3d 901, 903, 534 N.E.2d 1346, 1348.

Affirmed.

KNECHT, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    ALLEN EATON, Plaintiff-Appellant, v. BALTIMORE AND OHIO RAILROAD COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—89—0947
    Opinion filed June 7, 1990.

      Warrren E. Danz, P.C., of Peoria (Richard G. Leiser, of counsel), for appellant.
    Frederic L. Kenney, of Decatur, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff sued defendant railroad company, alleging wilful and wanton acts of negligence. Plaintiff appeals the decision of the trial court granting defendant’s motion to dismiss pursuant to section 2—615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). The issue in this case is whether the complaint sufficiently states a cause of action against the defendant so as to survive a motion to dismiss under section 2—615 of the Code. We hold it does, and we reverse.

On March 14, 1986, plaintiff Allen Eaton filed a complaint alleging negligence against the defendant, Baltimore & Ohio Railroad Company (Railroad). The complaint alleged the Railroad owed a duty of ordinary care to the plaintiff; and that it failed to (1) warn plaintiff of the trains in the area, (2) provide a safe walkway, (3) keep proper lookout, (4) provide audible warning of oncoming trains, (5) reduce speed, and (6) provide clear and proper signs as to the location of the tracks and train. It is further alleged that, as a proximate result of these failures of duty, the train hit plaintiff, causing him to sustain various injuries. Defendant filed a motion to dismiss or strike, specifically contending there was no legal duty for the Railroad to warn plaintiff of the train, provide a safe walkway, or provide clear or proper signs. The motion to dismiss was granted, and plaintiff was given leave to file an amended complaint. His first-amended complaint, not in the record on appeal, was also dismissed, with leave to file a second-amended complaint.

The second-amended complaint alleges plaintiff was employed by A.E. Staley Manufacturing Company (Company); the Railroad operated a switching area located within the Company grounds; the plaintiff and hundreds of other employees of the Company customarily traversed to and from work across this switching area at the time of the injury in question; and defendant routinely permitted and never prohibited such action, and knew of the practice. The plaintiff then realleged the breach of duties alleged in the first complaint.

On March 27, 1989, the court dismissed the second-amended complaint with leave to amend. The court held this complaint failed to allege facts sufficient to support a finding of wilful and wanton misconduct, and the complaint was therefore insufficient at law. Plaintiff’s third-amended complaint alleged the same facts but also alleged plaintiff wilfully and wantonly breached the duties alleged in the prior pleadings. The trial court again granted the defendant’s motion to dismiss with leave to amend. The fourth-amended complaint alleged violation of the same duties as before, but in such a way that plaintiff alleged the defendant was careless and exhibited a reckless disregard for the safety of the plaintiff. The plaintiff additionally alleged defendant’s failure to provide a flagman. The trial court granted defendant’s section 2 — 615 motion to dismiss, in that plaintiff’s complaint failed to allege facts to support a finding of wilful and wanton conduct on the part of defendant, thereby making the complaint substantially insufficient at law.

The plaintiff contends his complaint alleges legally sufficient facts and duties so that it should not have been dismissed on the pleadings. “Motions to dismiss under section 2—615 of the [Code] [citation] admit all well-pleaded facts and attack only the legal sufficiency of a complaint. *** ‘[No] cause of action should be dismissed on the pleadings unless it clearly appears that no set of facts can be proved to sustain it.’ Golden Rule Life Insurance Co. v. Mathias (1980), 86 Ill. App. 3d 323, 332, 408 N.E.2d 310, 317.” First National Bank v. Brumleve & Dabbs (1989), 183 Ill. App. 3d 987, 992, 539 N.E.2d 877, 880.

Plaintiff and defendant both acknowledge this cause of action arose prior to the effective date of the Premises Liability Act, which abolished the common law distinction between invitees and licensees (Ill. Rev. Stat. 1987, ch. 80, par. 302), and should not be applied retroactively. (Zimring v. Wendrow (1985), 137 Ill. App. 3d 847, 851, 485 N.E.2d 478, 481.) Plaintiff argues since both he and the Railroad “conducted business with” the Company, he should be designated as an invitee for the purpose of determining the degree of care owed to him by the Railroad. There is no dispute plaintiff was crossing the tracks to go to work, not to do business with the defendant. Since the plaintiff has invitee status only in regard to the Company and the Company is not a party to this suit, the status of the plaintiff to the Company is irrelevant to this case. Plaintiff has no invitee status, and this portion of the plaintiff’s argument has no merit.

“A railway company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or willfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, [or] a mere licensee ***.” (Illinois Central R.R. Co. v. Eicher (1903), 202 Ill. 556, 560, 67 N.E. 376, 378.)

Habitual acquiescence in a trespass may well constitute a license if the tolerance is pronounced enough to be tantamount to permission; yet evén in such a case, the plaintiff will not be able to recover by showing mere negligence, but only by showing wilful and wanton conduct. (Trout v. Bank of Belleville (1976), 36 Ill. App. 3d 83, 87, 343 N.E.2d 261, 265.) Having determined plaintiff was not an invitee, we therefore need not determine whether he was a trespasser or licensee for purposes of this opinion.

The Illinois Supreme Court has held:

“ ‘[T]he law casts no duty upon a railroad company to keep a lookout for trespassers on its track in the open country, remote from public crossings, cities and towns. *** Exceptions to this general rule are (1) places where the railroad company has permitted the public to travel along or over its track for a considerable period of time and a considerable number of people have availed themselves of such use, and (2) where the railroad runs through populous portions of a city, where people frequently go upon or pass over the track with knowledge of the company or for such a length of time that the company is chargeable with knowledge.’ ” (Shine v. Wabash R.R. Co. (1956), 8 Ill. App. 2d 521, 532-33, 132 N.E.2d 41, 46, quoting Joy v. Chicago, Burlington & Quincy R.R. Co. (1914), 263 Ill. 465, 468, 105 N.E. 330, 331.)

In Shine, the plaintiff was struck by defendant when he was 22 months old, as he crawled over the tracks, and the railroad employees initially mistook him for a small dog. (Shine, 8 Ill. App. 2d at 530, 132 N.E.2d at 45.) There was evidence a large number of people crossed a beaten path daily at a point between two streets with the knowledge of the defendant, the same pathway the plaintiff was crossing when he was hit. (Shine, 8 Ill. App. 2d at 528-29, 132 N.E.2d at 44-45.) The Shine court held that where the railroad has permitted the public to travel over its tracks for a considerable time and a number of people had used such path, the railroad company must keep a lookout for persons on its track, and whether the railroad fulfilled this duty is properly a question for the jury. Shine, 8 Ill. App. 2d at 534, 132 N.E.2d at 47.

In Barry v. Elgin, Joliet & Eastern Ry. Co. (1971), 132 Ill. App. 2d 371, 270 N.E.2d 152, the plaintiff was killed by defendant railway while working for United States Steel in a switching area located within the plant area but operated by defendant railway company. The Barry court held:

“[A]s a matter of law the defendant Railway owed a duty of ordinary care to prevent injury to persons working in the vicinity of its switch-track who might foreseeably be injured by movement of the cars propelled by the Railway engine even though that switch-track was actually operated within premises owned by another corporation.” Barry, 132 Ill. App. 2d at 378, 270 N.E.2d at 157.

Here, plaintiff does not allege he was working in the switching area at the time of the accident, or that a duty of ordinary care was owed to him by defendant. By way of analogy, however, the holding in Barry suggests that when an employee is injured by a train operating within his work area, the railroad owes at least a duty to refrain from wilful and wanton negligence toward those the railroad could reasonably foresee might be injured in the vicinity of the switch track, including those who, with the railroad’s knowledge, cross the switch track on their way from the work area. The Barry court found defendant railroad did owe a duty of care, but denied plaintiff’s recovery because plaintiff was found contributorily negligent. Since Illinois is no longer a contributory negligence State, this does not bar plaintiff’s suit.

As discussed previously, the court dismissed the fourth-amended complaint because it failed to allege facts to support a finding of wilful and wanton conduct. Yet in Shine, the plaintiff alleged a careless driving of the train, failure to give warning signals, operation of the train at a high rate of speed, failure to stop or slow the train, and permitting the right-of-way to be covered with tall weeds, later amending the complaint to allege the injury was wilfully and wantonly inflicted. Such allegations were held to allege a legal duty so as to support a cause of negligence and survive a motion to dismiss. Shine, 8 Ill. App. 2d at 523-24, 132 N.E.2d at 42.

In Barry, the allegation of the failure to maintain a lookout, give adequate warning, and use adequate systems of control for moving cars was held to support a negligence cause of action. (Barry, 132 Ill. App. 2d at 373, 270 N.E.2d at 153.) Whether a crossing required a watchman, or whether a railroad had a duty to sound and did in fact sound a signal have been held to present questions of fact for the jury, not law. (Gray v. Terminal R.R. Association (1962), 37 Ill. App. 2d 376, 378-79, 185 N.E.2d 700, 702.) While one who approaches a train has the duty to look and listen (Holt v. Illinois Central R.R. Co. (1943), 318 Ill. App. 436, 444, 48 N.E.2d 446, 450), this goes to the question of comparative negligence and damages, and does not bar plaintiff’s cause of action.

Further, in deciding whether an act is wilful and wanton under such circumstances involved in this case:

“111 will is not a necessary element of a wanton act, *** it is not essential that actual knowledge of the presence of specific persons or property is shown in fixing liability. It is only the knowledge of the probability of the presence of persons who might be injured, which becomes pertinent to characterize the act [citation].” (McDaniels v. Terminal R.R. Association (1939), 302 Ill. App. 332, 346, 23 N.E.2d 785, 791.)

(See also Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 1067, 340 N.E.2d 550, 556.) The defendant argues McDaniels is distinguishable on its facts. Yet, McDaniels stands for a larger principle which goes beyond its narrow set of facts. In McDaniels, where a timber was thrown from a viaduct onto a pathway below, it was not necessary that the plaintiff allege ill will or knowledge that the specific plaintiff was going to be on the pathway at the time the employee threw the plank. Rather, plaintiff had only to allege a reckless disregard for human life and safety, and knowledge of the possibility that people, including the plaintiff, traveled the path. (McDaniels, 302 Ill. App. at 346, 23 N.E.2d at 791.) Similarly, acts and omissions amounting to reckless disregard were alleged in this plaintiff’s fourth-amended complaint, which also stated this area was used by many people with the knowledge of the railroad company.

The defendant additionally relies on two cases it contends demonstrate it was under no legal duty alleged in the plaintiff’s complaint. In Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22, 411 N.E.2d 102, the plaintiff was injured when his pickup truck collided with the defendant railroad. In Seipp v. Chicago Transit Authority (1973), 12 Ill. App. 3d 852, 299 N.E.2d 330, a passenger took a shortcut over a well-traveled dirt path and fell due to ruts in the path. Both cases are distinguishable on their facts and both appeals were from a directed verdict for defendants at the close of the plaintiff’s evidence. In Seipp, the accident involved a person who fell on the premises of the railroad, not a person who was hit by the train. (Seipp, 12 Ill. App. 3d at 855, 299 N.E.2d at 332.) Therefore, the Seipp case involves a duty to maintain the premises, not duties to provide lookouts, give warning signals, or other duties alleged by the plaintiff here. In Pearce, the incident involved a privately maintained crossing on a private road. The Pearce court held “[t]he issue of whether the road was public or private is of central importance to the outcome of the case since, *** the defendant railroad is under no legal duty, *** to guard or maintain a crossing for a private road.” (Pearce, 89 Ill. App. 3d at 29, 411 N.E.2d at 106.) Since this case does not involve a slip and fall, or a privately maintained crossing or road, neither of these cases controls our decision.

We find plaintiff’s fourth-amended complaint sufficiently alleges a viable cause of action and breach of duties by the defendant sounding in wilful and wanton negligence, and conclude the trial court erred in dismissing this pleading under section 2—615 of the Code. This court, therefore, reverses and remands.

Reversed and remanded.

KNECHT, P.J., and GREEN, J., concur.


author: JUSTICE McCULLOUGH

text:
      In re C.D., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. C.D., a Minor, Respondent-Appellant).
    Fourth District
    No. 4—90—0265
    Opinion filed May 31, 1990.
    Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The minor appeals from a sentence of probation imposed upon his stipulation to the commission of aggravated battery in violation of the Criminal Code of 1961. (Ill. Rev. Stat. 1987, ch. 38, par. 12-4(b)(8).) As a condition of probation, the trial court ordered respondent to serve two separate three-day periods of detention. The minor contends the trial court was without authority to enter a sentence of detention because the minor was less than 10 years of age at the time the dispositional order was entered. The State confesses the error and we agree.

Section 5—23 of the Juvenile Court Act of 1987 (Ill. Rev. Stat., 1988 Supp., ch. 37, par. 805—23(1)(a)(5)) permits an order of detention to be imposed upon a delinquent juvenile only if the minor is at least 10 years of age. It is undisputed that at the time the dispositional order was entered the minor was only nine years of age, although the periods of detention would have been served after he became 10 years old.

With respect to juveniles, the supreme court has indicated that the relevant date for determining age, when that is a factor to be taken into account, is the date of the dispositional order. (In re Griffin (1982), 92 Ill. 2d 48, 440 N.E.2d 852; see also People v. Taylor (1979), 76 Ill. 2d 289, 391 N.E.2d 366.) Because the minor was less than 10 years of age on the date of the dispositional hearing, detention was not an appropriate condition of probation and may not be reimposed upon remand. Cf People v. Carr (1961), 23 Ill. 2d 103, 177 N.E.2d 361; People v. Wesley (1966), 78 Ill. App. 2d 350, 223 N.E.2d 428.

Having concluded the trial court erred in ordering detention, we need not consider the minor’s alternative contention that the court was without authority to impose separate periods of detention.

Finally, although the minor requests that this court re-sentence him to supervision, we believe the trial court is in a better position to make that determination.

Accordingly, the judgment of probation is vacated and the cause is remanded to the trial court for a new dispositional hearing.

Sentence vacated and remanded.

LUND and GREEN, JJ., concur.


text:
    I. CORINNE SALDEEN, Plaintiff-Appellant, v. DAN HAMELBERG et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0991
    Opinion filed May 31, 1990.
    Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellant.
    John T. Phipps, of John T. Phipps Law Offices, P.C., of Champaign, for appellees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, I. Corinne Saldeen, filed suit in the circuit court of Champaign County, seeking a declaration that the judgment of dissolution of marriage between her and her former husband, Arland Saldeen, operated to impose a lien upon certain real estate purchased by defendants, Dan Hamelberg, William Lemmon, and Philip Rushing. On December 12, 1989, the trial court granted defendants’ motion for judgment on the pleadings (Ill. Rev. Stat. 1987, ch. 110, par. 2—615(e)). Plaintiff appeals, and we affirm.

In the judgment of dissolution of their marriage, Corinne and Arland agreed to be forever barred from claiming maintenance. The judgment also incorporated by reference a written marital settlement agreement. The agreement provided, inter alia, that Arland was to pay Corinne the sum of $283,000. She in turn was to immediately execute all documents necessary to convey all of her real estate interests to Arland. Arland’s payment obligation was to be partially satisfied by an initial lump-sum payment of $50,000, with complete satisfaction to be made on a scheduled basis. An agreed security for the debt was provided, and the agreement further noted that Arland would be selling or refinancing “certain of the real property” in order to obtain funds to pay Corinne.

On October 7, 1988, Corinne filed with the recorder of deeds certain documents that allegedly show her continuing interest in Arland’s real estate. These documents consisted of a copy of the judgment of the dissolution of marriage and pages three and seven of the property settlement agreement. Page three of the agreement recited payment provisions, while page seven provided that the court, upon entry of the judgment of dissolution of marriage, “shall retain the right to enforce the provisions and terms of the Agreement, which agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, assigns, designees and grantees of the parties.”

On October 11, 1988, defendants purchased real estate from Arland for $1,025,000, and as of that same date, Arland had paid Corinne $62,000 pursuant to the settlement agreement, giving rise to an arrearage of $24,000.

On appeal, Corinne argues that defendants, as “grantees” of Arland, took title to property with notice and subject to Arland’s antecedent obligations under the judgment of dissolution agreement. Corinne also argues that pursuant to the agreement, “there is a lien upon the property of the defendants for all payments that are to be made in the future,” and that this lien is subject to foreclosure to the extent of the $24,000 now past due.

The facts of this case are similar to those in Dunn v. Thompson (1988), 174 Ill. App. 3d 944, 529 N.E.2d 297, wherein this court held that the creation of a lien is a discretionary function of the trial court and, without an express intent to so create, a lien may not arise by implication. Dunn, 174 Ill. App. 3d at 948-49, 529 N.E.2d at 300.

In Dunn, the plaintiff’s judgment of dissolution of marriage awarded her child support and $30,000 — $20,000 to be paid upon the entry of judgment and $10,000 (evidenced by a note) to be paid at a later date. The judgment also expressly required the plaintiff to immediately release and relinquish any right, title, or interest that she may have had in the marital home. This gave her former husband full rights to the marital residence on the original date the judgment was entered. Such rights necessarily included the right to dispose of the property as he saw fit. Dunn, 174 Ill. App. 3d at 948, 529 N.E.2d at 300.

In September 1983, a certified copy of the judgment was recorded with the recorder of deeds. Three and one-half months later, a supplemental court order extended the due date of the $10,000 obligation. This order was never recorded with the recorder of deeds and the $10,000 was never paid. Some 18 months later, in December 1985, plaintiff’s former husband filed for personal bankruptcy. Previously, the marital residence had been transferred to the defendants. Dunn, 174 Ill. App. 3d at 946, 529 N.E.2d at 298.

On appeal, the plaintiff in Dunn sought foreclosure of a judgment lien allegedly created by her dissolution of marriage order. Specifically, she maintained that the language establishing the obligation on behalf of her husband in the amount of $10,000 was sufficient to create a judgment from which a judgment lien had been recorded pursuant to section 12—101 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 12—101).

In its analysis of this issue, the Dunn court traced the common law roots of the law relating to the creation of liens of judgment and discussed the statutory progeny thereof:

“At common law, a court-entered judgment did not create a lien upon the real estate of a debtor. [Citation.] A judgment lien is thus purely a creature of statute. [Citation.] Section 12 — 101 of the Code of Civil Procedure provides specific guidelines for the creation of a judgment lien against the real estate of a debtor. [Citation.] Such a lien is created when a ‘certified copy or memorandum of the judgment is filed in the office of the recorder in the county in which the real estate is located.’ [Citation.]” Dunn, 174 Ill. App. 3d at 947, 529 N.E.2d at 299.

The court then discussed the qualifications necessary to create a lien:

“A valid judgment, in order to create a lien, must possess two qualifications: (1) it must be final, valid, and for a definite amount of money; and (2) it must be such a judgment that execution may issue thereon.” Dunn, 174 Ill. App. 3d at 947, 529 N.E.2d at 299.

The Dunn court then found that the judgment ordering the payment of money did not automatically create a lien. (Dunn, 174 Ill. App. 3d at 948, 529 N.E.2d at 300.) The court stated that such an order does not become a lien unless provided for by statute or unless the decree itself recites that it shall become a lien. (Dunn, 174 Ill. App. 3d at 948, 529 N.E.2d at 300.) The court then noted that the plaintiff had failed to comply with the statutory requisites to create a judgment lien and found that where there is no specific language in the judgment creating rights to a lien, a lien may not be implied. Dunn, 174 Ill. App. 3d at 948, 529 N.E.2d at 300.

Initially, we find that the finality of the judgment of dissolution in the instant case is subject to question. Although the judgment of dissolution contained a monetary obligation, the property settlement agreement provided for the initial $50,000 owed Corinne to be paid to her upon the court’s approval of the agreement and the successful sale or refinancing of the real estate, or both. These conditions of refinancing or sale were to be completed within a reasonable period of time and in the best interests of both parties. While an outer time limit of 10 months was imposed in this regard, even that provision was precatory, as it states that “[i]f a sale or refinance is in progress, but not complete at the end of ten months, then an extension of time shall not be unduly withheld.” Furthermore, other portions of the settlement agreement providing for the payment of the balance of the $283,000 were also not final because Arland’s obligations were to ripen only after payment of the initial $50,000.

We find that the language relied upon by Corinne on appeal makes no reference whatsoever to the establishment of a lien against the real estate of Arland. Corinne argues in her brief that the language which states, “binding *** to the *** grantees of the parties,” creates a lien in her favor. However, Corinne has omitted that portion of the agreement which provides for the agreement to be binding “upon and inure to the benefit [not detriment] of the *** grantees of the parties.” This standard language indicates only that the agreement is a binding transaction between the parties, their successors, or anyone taking title through them. It makes no reference to the establishment of a lien. In fact, the judgment of dissolution expressly required Corinne to release and relinquish all her rights in the property and provided for other types of security. Absent a specific recital, no lien in favor of Corinne arose. See Interstate Bank v. Cardona (1988), 167 Ill. App. 3d 214, 521 N.E.2d 140.

Finally, we note that the legislature has provided for the creation of judgment liens in the Illinois Marriage and Dissolution of Marriage Act (Act) (see Ill. Rev. Stat. 1987, ch. 40, pars. 505(c), 703). Judgment liens on past-due maintenance (Ill. Rev. Stat. 1987, ch. 40, par. 703) or child support (Ill. Rev. Stat. 1987, ch. 40, par. 505(c)) arise as each installment payment comes due. Neither of these provisions is applicable to this case. Here, the judgment of dissolution does not provide for child support or maintenance. In that judgment, Corinne and Arland agreed to an express, bilateral waiver of maintenance. Additionally, Corinne fails to assert that the monies due her are in fact maintenance in gross.

The legislature has made no provision for the creation of a judgment lien on past-due payments for the “settlement of property.” Corinne, nevertheless, argues that a lien can be created in this way. In support of her argument she cites In re Marriage of Morris (1989), 190 Ill. App. 3d 293, 546 N.E.2d 734, wherein the First District Appellate Court held that interest under a property settlement is accrued from the date of judgment. However, Morris is distinguishable on the ground that the court there ordered accured interest to be paid on both past-due maintenance and an aggregate sum property settlement, which had been- “reduced to judgment” on the entry date of the supplemental judgment in the dissolution action, pursuant to a statute requiring the payment of interest. See Ill. Rev. Stat. 1987, ch. 110, par. 2—1303.

Before concluding, we commend the trial court for the obvious care it used and time it expended in preparing its written order in this case. Our task of reviewing this complicated proceeding was greatly facilitated.

For the foregoing reasons, the order of the circuit court of Champaign County is affirmed.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


text:
    PHILIP A. MILLER, Plaintiff-Appellant, v. J.M. JONES COMPANY, Defendant-Appellee.
    Fourth District
    No. 4—89—0848
    Opinion filed June 7, 1990.
    Robert I. Auler, of Auler Law Offices, of Urbana, for appellant.

      Thomas G. Harvel and Homer W. Keller, both of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This appeal involves the effect of a determination under the Illinois Wage Payment and Collection Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 39m—1 through 39m—15) of unpaid wages on the proceedings in a circuit court civil action brought to collect those wages. Plaintiff Philip A. Miller requested assistance from the Illinois Department of Labor (Department), contending he had been deprived of certain wages by defendant J.M. Jones Company. The Department conducted an investigation under the provisions of section 11 of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 39m—11) and determined that plaintiff was owed $498.32. Defendant did not participate, although served with notice in the Department’s proceedings. A wage-payment demand was issued to defendant.

Plaintiff brought this action in the small claims division of the circuit court of Champaign County. The Department proceeding was established by a request for admission under the provisions of Supreme Court Rule 216 (107 Ill. 2d R. 216). This was the sole evidence introduced by the plaintiff in the trial court proceedings. Plaintiff argued that the Department’s determination established the debt owed by defendant to the plaintiff. The trial court held that the plaintiff failed to meet his burden of proof and that the determination of liability would have to be made by a trial de novo. Upon motion, plaintiff’s complaint was dismissed with prejudice.

Plaintiff appeals, contending that the determination under the Act is in the nature of a judicial proceeding and must be treated as such in the small claims action. He cites only sections 11(c) and 14(b) of the Act (Ill. Rev. Stat. 1987, ch. 48, pars. 39m—11(c), 39m—14(b)) as authority for his position.

A reading of the entire Act clearly shows that the purpose of the Act is to assist employees in seeking redress for an employer’s wrongful withholding of employee benefits.

The Act defines wages (Ill. Rev. Stat. 1987, ch. 48, par. 39m—2), and provides for pay periods (Ill. Rev. Stat. 1987, ch. 48, par. 39m—3), time for payment of wages earned (Ill. Rev. Stat. 1987, ch. 48, par. 39m—4), and for vacation pay (Ill. Rev. Stat. 1987, ch. 48, par. 39m—5). It authorizes the Department “to assist any employee *** in the collection of wages.” (Ill. Rev. Stat. 1987, ch. 48, par. 39m—6.) It limits deductions from wages and provides for the Department to “establish rules to protect the interests of both parties.” (Ill. Rev. Stat. 1987, ch. 48, par. 39m—9.) The Act requires employers to notify employees of rates of pay. Ill. Rev. Stat. 1987,. ch. 48, par. 39m—10.

Section 11 provides:

“It shall be the duty of the Department of Labor to inquire diligently for any violations of this Act, and to institute the actions for penalties herein provided, and to enforce generally the provisions of this Act.
The department shall have the following powers:
(a) To investigate and attempt equitably to adjust controversies between employees and employers in respect of wage claims arising under this Act and to that end the department through the Director of Labor or any other person in the Department of Labor designated by him or her, shall have the power to administer oaths, subpoena and examine witnesses, to issue subpoenas duces tecum requiring the production of such books, papers, records and documents as may be evidence of any matter under inquiry and to examine and inspect the same as may relate to the question in dispute. Service of such subpoenas shall be made by any sheriff or any person. Any court in this State, upon the application of the department may compel attendance of witnesses, the production of books and papers, and the giving of testimony before the department by attachment for contempt or in any other way as the production of evidence may be compelled before such court.
(b) To take assignments of wage claims in the name of the Director of Labor and his or her successors in office and prosecute actions for the collection of wages for persons financially unable to prosecute such claims when in the judgment of the department such claims are valid and enforceable in the courts. No court costs or any fees for necessary process and proceedings shall be payable in advance by the department for prosecuting such actions. In the event there is a judgment rendered against the defendant, the court shall assess as part of such judgment the costs of such proceeding. Upon collection of such judgments the department shall pay from the proceeds of such judgment such costs to such person who is by law entitled to same. The department may join in a single proceeding any number of wage claims against the same employer but the court shall have discretionary power to order a severance or separate trial for hearings.
(c) To make complaint in any court of competent jurisdiction of violations of this Act.
Nothing herein shall be construed to prevent any employee from making complaint or prosecuting his or her own claim for wages.
Nothing herein shall be construed to limit the authority of the State’s attorney of any county to prosecute actions for violation of this Act or to enforce the provisions thereof independently and without specific direction of the Department of Labor.” (Ill. Rev. Stat. 1987, ch. 48, par. 39m—11.)

We note this section, which provides the Department with “powers,” makes no provision for a judicial determination. The “attempt” equitably to adjust controversy (section 11(a)) and the power to take assignments of wage claims and prosecute actions for collection of wages (section 11(b)) clearly indicates the absence of judicial or administrative determination powers. Section 11(c) says nothing more than that the claimant, as well as the Department, can proceed in the trial courts.

The plaintiff principally relies on section 14(b) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 39m—14(b)), stating this provision allows the Director of Labor to determine liability. Section 14 provides:

“(a) Any employer or any agent of an employer, who, being able to pay wages, final compensation, or wage supplements and being under a duty to pay, wilfully refuses to pay as provided in this Act, or falsely denies the amount or validity thereof or that the same is due, with intent to secure for himself or other person any underpayment of such indebtedness or with intent to annoy, harass, oppress, hinder, delay or defraud the person to whom such indebtedness is due, upon conviction, is guilty of a Class C misdemeanor. Each day during which any violation of this Act continues shall constitute a separate and distinct offense.
(b) Any employer who has been ordered by the Director of Labor or the court to pay wages due an employee and who shall fail to do. so within 15 days after such order is entered shall be liable to pay a penalty of 1% per calendar day to the employee for each day of delay in paying such wages to the employee up to an amount equal to twice the sum of unpaid wages due the employee.
(c) Any employer, or any agent of an employer, who knowingly discharges or in any other manner knowingly discriminates against any employee because that employee has made a complaint to his employer, or to the Director of Labor or his authorized representative, that he or she has not been paid in accordance with the provisions of this Act, or because that employee has caused to be instituted any proceeding under or related to this Act, or because that employee has testified or is about to testify in an investigation or proceeding under this Act, is guilty, upon conviction, of a Class C misdemeanor.” Ill. Rev. Stat. 1987, ch. 48, par. 39m—14.

Section 14(b) is the only part of the Act which might indicate the existence of a right of the Director of Labor to make a binding determination. Basically, the Act refers to assisting, representing, and protecting the employee’s interests. Representation of the employee and serving as the ultimate fact finder is inconsistent with due process.

Provisions of a statute should be construed in light of the statute as a whole. (Winks v. Board of Education of Normal Community Unit School District No. 5 (1979), 78 Ill. 2d 128, 135, 398 N.E.2d 823, 826.) The Act does not contain provisions for impartial adjudication, nor does it provide review procedures. The criminal provisions in section 14(c) necessarily require any prosecution in the trial courts with the burden of proof of beyond a reasonable doubt being upon the prosecution.

A reasonable interpretation of the Act requires a finding that while certain penalties and interest provisions may run from the Department’s initial determination of liability, actual liability, if contested, must be determined by the trial court. The initial determination of the Director of Labor cannot be used to establish liability in the trial court.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES BROWN, Defendant-Appellant.
    Fourth District
    No. 4—89—0827
    Opinion filed June 7, 1990.
    Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    No brief filed for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On September 29, 1989, the defendant Charles Brown was sentenced to the penitentiary for the term of 40 years as a result of his conviction of murder and attempt (armed robbery), in violation of sections 9—1(a), 8—4, and 18—2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 9—1(a), 8—4, 18—2). This sentence was imposed as a result of a mandate from this court, remanding in People v. Brown (1989), 181 Ill. App. 3d 1121 (unpublished order under Supreme Court Rule 23). The defendant filed timely notice of appeal, and the only issue presented is whether the resentencing court’s failure to order an updated presentence investigation report raised a colorable issue that remandment for a new resentencing hearing is required. The defendant’s counsel on appeal, the Office of the State Appellate Defender, Fourth Judicial District, has moved to withdraw as counsel on appeal pursuant to Anders v. California (1967), 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, because there is no meritorious issue for review and any request for review would be frivolous. A copy of the motion was served on defendant. In addition, this court on its own motion has advised defendant that he had been granted leave to file additional points and authorities on or before February 23, 1990. None have been filed. The motion of the appellate defender to withdraw is allowed. However, we will address the merits of the defendant’s issue on appeal.

In defendant’s previous appeal to this court, only the sentence imposed upon him for the offense of murder was challenged. The trial court, on August 12, 1988, sentenced the defendant to 60 years’ imprisonment in the Department of Corrections. On June 2, 1989, in Brown, this court affirmed the defendant’s convictions but reversed his sentence for murder and the cause was remanded for a new sentencing hearing. The issue determined by this court in the first appeal was “whether that sentence may be affirmed as a properly imposed extended-term sentence.” (Brown, slip at 8.) Specifically, was the offense accompanied “by exceptionally brutal or heinous behavior indicative of wanton cruelty” within the meaning of the statute (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(b)(2))? (See Brown, slip at 8.) The trial court was directed to conduct a new sentencing hearing. The only prohibitions by our mandate were that no death penalty should be imposed and no sentence more severe than 60 years should be imposed unless the sentence was based upon misconduct by the defendant occurring since the previous sentencing hearing.

A proper presentence investigation report was before the court at sentencing on August 12, 1988. The resentencing hearing held September 29, 1989, was without the benefit of a supplemental presentence report. The trial court did not err in failing to order a supplemental presentence report in this case.

The defendant cites People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291, to support his position that a supplemental presentence report is mandatory. In Harris, defendant Harris was sentenced to probation without the benefit of a presentence investigation (PSI). Subsequently, his probation was revoked also without the benefit of a PSI report. In the consolidated case with Harris, defendant Coleman was sentenced to probation without a PSI, Coleman’s probation was revoked and a supplemental PSI report ordered. As to Harris and Coleman, the supreme court stated “section 5—3—1 plainly requires a written presentence report whenever a defendant is sentenced for a felony, absent an agreed disposition. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-3-1.)” Harris, 105 Ill. 2d at 299, 473 N.E.2d at 1295.

In People v. Young (1988), 124 Ill. 2d 147, 529 N.E.2d 497, a factual situation similar to this case, a PSI was on file at the original sentencing hearing. On remand from the appellate court for resentencing, the defendant contended a supplemental PSI report was mandatory. Unlike this case, the defendant made a motion in the trial court for a supplemental PSI report and the motion was denied. The defendant wanted a supplemental PSI report to show information concerning his good conduct while incarcerated.

In Young, the supreme court stated:

“The presentence investigation and report required by Harris were not supplemental, as the defendant argues for in this case. They were original. Harris does not, therefore, control this case.” Young, 124 Ill. 2d at 157, 529 N.E.2d at 501-02.

Section 5—5—3(d) of the Unified Code of Corrections (Code) provides in part as to resentencing on remand:

“The trial court shall hold a hearing under Section 5—4—1 of the Unified Code of Corrections which may include evidence of the defendant’s life, moral character and occupation during the time since the original sentence was passed.” Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3(d).

The Young court did not make mandatory a supplemental PSI report:

“Today, we decline to give section 5 — 5—3(d) the mandatory reading defendant urges upon us. In setting forth the statute above, we have emphasized the use of the words ‘shall’ and ‘may.’ It is clear from the alternate use of these words that the legislature used ‘shall’ when it intended that a requirement be mandatory, and ‘may’ when the provision was to be discretionary.” Young, 124 Ill. 2d at 157, 529 N.E.2d at 502.

The statement made by the appellate court in People v. Morton (1981), 102 Ill. App. 3d 280, 281, 430 N.E.2d 383, 384, is sound. In Morton, the court stated:

“The preparation of a second presentence report is not mandated by law, although it would be discretionary with the sentencing judge to order a supplemental report if he felt it would be beneficial. In the case at bar, a presentence report was presented to the judge at the time defendant was originally sentenced. The second hearing occurred only 11 months after the first one. The same judge presided at both hearings. At the re-sentencing hearing, both sides had the opportunity, and did in fact, present evidence to fully supplement the original report.”

In this case, the same judge presided at both sentencing hearings. The second hearing occurred approximately 13 months after the first one. At the resentencing hearing, the trial court stated: “I do recall clearly the evidence and I recall the sentencing hearing.” At the resentencing hearing neither the State nor the defendant presented any evidence. The defendant did not request a supplemental PSI report and in fact did not exercise his right of allocution at the hearing. He cannot now complain.

The resentencing hearing conducted by the trial court complied with the provisions of sections 5—3—2 and 5—5—3(d) of the Code (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-3-2, 1005-5-3(d)). As argued by the defendant in the first appeal, the maximum unextended term of imprisonment for the offense of murder in this case was 40 years. The trial court, in considering the background of the defendant and the PSI report and the matters presented at the hearing on September 29, 1989, did not abuse its discretion in sentencing the defendant to the term of 40 years.

The circuit court of Sangamon County is affirmed.

Affirmed.

KNECHT, P.J., and LUND, J., concur.


author: JUSTICE SPITZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWIGHT HANSEN, Defendant-Appellant.
    Fourth District
    No. 4—89—0817
    Opinion filed June 7, 1990.

      George F. Taseff, of Jennings, Novick, Ensign & Ostling, of Blooming-ton, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant appeals from a trial court order granting the expungement of his arrest records held by the sheriff’s office, insofar as it denied the expungement of the records held by the circuit clerk’s office relating to his arrest. Defendant argues that the trial court abused its discretion in denying the expungement of the circuit clerk records. We agree and reverse.

Defendant was indicted on October 13, 1983, by the grand jury of McLean County for the offense of delivery of a controlled substance in violation of section 401 of the Illinois Controlled Substances Act (Act) (Ill. Rev. Stat. 1981, ch. 56½, par. 1401(b)(2)). On January 4, 1984, defendant pleaded guilty to an included offense of possession of a controlled substance in violation of section 402 of the Act. (Ill. Rev. Stat. 1981, ch. 56½, par. 1402.) The court sentenced defendant to 24 months’ probation pursuant to section 410 of the Act (Ill. Rev. Stat. 1981, ch. 56½, par. 1410), and ordered him to pay a fine and court costs. Defendant successfully completed the term of probation and was discharged from probation on July 31,1986.

On August 19, 1988, defendant filed a petition for expungement of his arrest records pursuant to section 5 of “An Act in relation to criminal identification and investigation” (Criminal Identification Act) (Ill. Rev. Stat. 1987, ch. 38, par. 206—5). Defendant’s petition was a preprinted legal form which asked the court to “expunge his/her arrest records.” After a hearing on August 26, 1988, the petition was denied. The court found that defendants who have successfully completed probation pursuant to section 410 of the Act were not eligible to have their records expunged pursuant to section 5 of the Criminal Identification Act.

Defendant filed a motion for reconsideration on September 16, 1988, which stated that the court had denied defendant’s request to expunge “arrest records and Circuit Court records.” Defendant also included in his motion to reconsider a letter from a prospective employer who denied him employment because of the prior 1984 “conviction.” The court denied defendant’s motion.

Defendant appealed, and this court reversed the judgment and order of the circuit court below and remanded the cause for a new hearing. (People v. Hansen (1989), 185 Ill. App. 3d 560, 541 N.E.2d 816.) This court found that a person who has successfully completed probation pursuant to section 410 of the Act is eligible for expungement of criminal records pursuant to section 5 of the Criminal Identification Act.

On remand, the court ordered defendant’s records held at the sheriff’s office expunged. The court explained:

“It does seem to me that people who have served their sentence, have done what’s required to be done, ought not to be perpetually hampered by virtue of their prior records, their prior indiscretion, and perhaps terming it an indiscretion is putting it lightly, but it does appear to be out of character at least with his current mode of behavior, and to that extent it does seem that it does, that what is recorded in history is not a fair representation of the situation as it is today, and so for that reason I am going to grant the petition.”

The court, however, refused to order the expungement of the circuit clerk’s records. The court reasoned:

“Because then you can’t ever establish that it’s been expunged. The expungement itself goes into the court record and then gets sealed up, and, and so there is no way of showing that it has been expunged.”

Defense counsel responded by asking the court for an order to seal the circuit clerk’s file. A seal would ensure both that the file would not be destroyed, and that a court order would be required to observe the contents of the file. Defense counsel noted that defendant’s prospective employer had gone into the circuit clerk’s office, found defendant’s record, and denied defendant employment because of the record. The court replied that defendant’s file would reveal the ex-pungement order and explained:

“Otherwise, you run into all kind of trouble. The Circuit Clerk has to remove it from her indexes and has to remove it from, has to seal it up and place it in an envelope. Then you can’t, you can’t go and try and find it to show that it has been expunged, and so somebody, some police agency someplace said, well, we have this set of fingerprints or something, and, and there is no way of showing that it is expunged, and so then the Circuit Clerk had several of these things that were expunged, and it just causes a great deal of difficulty because you have to open each one of them and see if that’s the one of the person who claims that his arrest record was expunged.”

Defendant filed a timely notice of appeal.

The chief judge of the circuit court was of the belief that defendant should have his record expunged. However, the court refused to expunge the records held by the circuit clerk for two reasons: (1) the inconvenience the circuit clerk would suffer in expunging the record; and (2) the inability of police agencies to inquire about defendant’s fingerprints and arrest record. We find neither concern valid and suggest a procedure to alleviate the court’s concerns.

Section 5 of the Criminal Identification Act strikes a balance between concern for effective record keeping and the right of privacy of individuals. (People v. Valentine (1977), 50 Ill. App. 3d 447, 365 N.E.2d 1082.) The trial court was concerned that the circuit clerk would suffer an inconvenience expunging defendant’s records. The court noted the problem of proving a record had been expunged and the trouble the circuit clerk would incur attempting to find the expunged record, opening every sealed document in an attempt to find the one in question. This need not be the case, however, as a circuit clerk may easily keep track of the record and at the same time keep the record from the public. The clerk may seal the record, store it in a vault, delete the file from the county index, and list the contents in a separate index that would be available only to the court and the clerk. This procedure would strike the proper balance between effective record keeping and an individual’s right to privacy.

The trial court was also concerned about the inconvenience the circuit clerk would incur in removing the expunged record from its indexes, placing it in an envelope and sealing it. This inconvenience, however, is greatly outweighed by the harm defendant suffers in having his “expunged” record open to the public. We note that the circuit clerk performs a similar act with other records, including juvenile and adoption records. If the court’s concern were valid, then no circuit court record would ever be expunged as it would be too much of an inconvenience. This would in effect render the statute and its protection of privacy meaningless, as the “expunged” record would remain on file for the public to see.

The court’s second concern was the ability of a police agency to inquire about defendant’s arrest record or fingerprints. This concern is not valid, however, as Illinois law provides that the Illinois State Police shall serve as a “central repository and custodian of criminal statistics.” The State Police may maintain all records of any person admitted to section 410 probation who fulfills the terms and conditions of such probation, such as defendant. (Ill. Rev. Stat. 1987, ch. 127, par. 55a(5).) Defendant’s arrest record and fingerprints will be on file at State Police headquarters. See Hansen, 185 Ill. App. 3d at 564, 541 N.E.2d at 818.

In response, the State argues (1) this court is without jurisdiction to hear this appeal; (2) defendant has already obtained the relief his original and only petition prayed for; (3) the records of the circuit clerk “relating to such arrest” and the “records of the Clerk of the Circuit Court” are not an entire circuit clerk’s file; and (4) the chief judge did not abuse his discretion in denying defendant’s request for the circuit clerk’s records to be expunged. We are not persuaded by these arguments.

The State first contends that this court is without jurisdiction to hear this appeal because defendant's notice of appeal is defective. Defendant’s notice of appeal states:

“5. Nature of Judgment or Order appealed from: Circuit Court’s denial of Defendant’s petition to seal Circuit Court records of expunged conviction.”

The State argues that while defendant refers to a “petition to seal circuit court records,” no document bearing such name was ever filed. Instead, defendant’s only petition was labeled “Petition to Expunge AND NOTICE.” The State also notes that defendant’s notice of appeal seeks to seal an expunged “conviction.” The State argues that no conviction ever existed as defendant was sentenced to probation pursuant to section 410 of the Act “without the entry of a judgment of conviction on 7/29/84.” Thus, the State argues, there can be no appeal, or expungement of a conviction, when there was no conviction.

The State’s argument fails for several reasons. During the hearing on remand, the court refused to grant defendant’s request insofar as it sought to seal the records at the circuit clerk’s office. It is from this denial that defendant appeals. The State further fails to note that section 410(f) of the Act states:

“A disposition of probation [under section 410] is considered to be a conviction for *** appeal ***.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 56½, par. 1410(f).

Moreover, a notice of appeal is to be liberally construed and appellate courts will have jurisdiction if the notice, when considered as a whole, fairly and adequately sets out the judgment complained of and the relief sought. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 394 N.E.2d 380.) The State alleges no prejudice, and the alleged defect is one of form over substance and, as such, does not deprive this court of jurisdiction. People v. Ahlstrand (1983), 113 Ill. App. 3d 363, 447 N.E.2d 517.

The State’s second contention is that defendant’s appeal is moot, as he has already obtained the relief his original (and only) petition prayed for. Defendant’s petition was a preprinted legal form which asked “the Court to expunge his/her arrest records.” The State argues that the phrase, “arrest records,” refers only to the records held by the McLean County sheriff’s department because the circuit clerk’s office is not an arresting agency. The State further argues that section 5 of the Criminal Identification Act makes a distinction between “record of arrest” of the “official records of the arresting authority” and “records of the circuit court relating to such arrests” in the “records of the clerk of the circuit court.” (Ill. Rev. Stat. 1987, ch. 38, par. 206—5.) Because the court’s October 11, 1989, order directed the McLean County sheriff’s department to expunge defendant’s arrest record, the State argues that defendant has already received the relief he originally sought.

We disagree and find defendant’s petition seeking to expunge his “arrest records” included the records held by the McLean County sheriff’s department as well as the records relating to such arrests in the circuit clerk’s office. Defendant’s motion to reconsider asked the court to reconsider its order denying his original petition to expunge “his arrest records and Circuit Court Records.” During the hearing on remand, defense counsel specifically asked the court to expunge both the sheriff’s records and the circuit clerk’s records. Moreover, the trial court apparently was never under the belief that defendant’s petition asked only for the expungement of the sheriff’s records, as the court entertained both requests.

The State’s third argument is that section 5 of the Criminal Identification Act does not specifically define what “circuit clerk records relating to an arrest” are. The State contends there is no authority to assert that the entire circuit clerk’s record, including pleadings, docket sheet, and orders, must be expunged. These records have potential reasons to be preserved, the State insists, especially here, where defendant had agreed to testify against a codefendant and a codefendant needed defendant’s record in his appeal concerning the issue of whether he received a disparate sentence as compared to defendant.

The intent of the legislature can best be determined by the plain and ordinary meaning of the statutory language. (People v. Pettit (1984), 101 Ill. 2d 309, 461 N.E.2d 991.) Black’s Law Dictionary defines “expunge” as “[t]o destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information-including criminal records — in files, computers, or other depositories.” (Black’s Law Dictionary 522 (5th ed. 1979).) “Expungement of record” is defined as “Process by which record of criminal conviction is destroyed or sealed after expiration of time.” (Black’s Law Dictionary 522 (5th ed. 1979).) Because the legislature did not specify that only certain portions of the circuit clerk’s records relating to an arrest may be expunged, and because the purpose of expungement is to erase any record of a conviction, the entire record, including the entire circuit clerk’s record, may be expunged. We note, however, that the procedure suggested above for expunging records would alleviate the concerns the State has concerning the availability of the record for future use.

The State’s final argument is that the trial court did not abuse its discretion in denying defendant’s request for the expungement of the circuit clerk’s records. The State first argues that defendant was originally indicted for a Class 1 felony, the delivery of between 10 and 30 grams of cocaine. (Ill. Rev. Stat. 1983, ch. 56½, par. 1401(b)(2).) Defendant pleaded guilty to possession of less than 10 grams of cocaine, a Class 4 felony. (Ill. Rev. Stat. 1983, ch. 56½, par. 1402(b).) The State argues that today, the possession charge (of 13 grams of cocaine) would be a Class 1 felony. (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(b)(2).) The State further argues that at the time of the offense, defendant was almost 30 years old, was the manager of a restaurant, and had solicited another to sell cocaine for a profit. Thus, this is not a case where a naive young adult only possessed cocaine.

The State’s argument would have merit if the court denied defendant’s request for expungement altogether. However, the court believed that defendant qualified to have his record expunged, stating that defendant’s “indiscretion” appeared to be out of character with his current mode of behavior. The court also believed that defendant’s record should not hamper his future. The court simply did not want to expunge the circuit clerk’s records because of the inconvenience to the clerk and because of the mistaken belief that there would be no permanent record of defendant’s arrest and fingerprints on file.

The State also argues that the trial judge did not abuse his discretion because the judge believed the circuit clerk’s file may have future value, protecting not only the instant defendant, but others as well. These others include codefendants, or those not yet charged but under investigation. However, if the circuit clerk simply removes the file, seals it, and keeps a separate index to the expunged records, there should be no problem locating the record if it is needed in the future.

For the foregoing reasons, the judgment of the circuit court is affirmed insofar as it ordered expungement of the arrest record held by the sheriff’s office, but reversed with directions to expunge the records relating to defendant’s arrest held by the circuit clerk’s office.

Affirmed in part; reversed in part and remanded.

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


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS RICHARD CHRISTENSEN, Defendant-Appellant.
    Fourth District
    No. 4—89—0789
    Opinion filed May 31, 1990.

      Gary G. Johnson, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and James W. Ackerman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a bench trial, defendant Thomas Christensen was found guilty of unlawful possession of a controlled substance. Prior to trial, defendant’s motion to suppress the evidence obtained on September 3, 1987, after the car defendant was a passenger in was stopped by officers from the Normal police department, was denied. On appeal, defendant argues the trial court erred in finding the stop and search of defendant was proper under sections 107—14 and 108—1.01 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 107-14, 108-1.01). We affirm.

The facts are undisputed. The arresting officer, James Lutes, testified at the suppression hearing that he and his partner were assigned to the party shift (6 p.m. to 4 a.m.) on September 3, 1987, when they were called at 10:30 p.m. to investigate a complaint about a fight in an apartment complex off Walnut Street in Normal. Two of the individuals involved in the fight were described as white males wearing leather jackets. At approximately 10:38 p.m., Lutes testified he and his partner were driving westbound on Phoenix Street in Normal when they observed the defendant and another man walking down the driveway of the apartment complex where the fight complaint arose. Both were wearing black jackets which appeared to be leather. Lutes and his partner drove by the two men and pulled off to the side of the street to observe the two men. Lutes testified the men got into a Ford Bronco parked east of them on Phoenix but did not start the ignition or turn on the lights. After observing the two men for a short time, the officers turned their squad car around and drove toward the Bronco.

Lutes testified his partner pulled the squad car up behind the Bronco on Phoenix. Both officers got out and approached the driver and passenger sides of the Bronco simultaneously. Lutes testified the defendant was sitting in the passenger seat and the window was rolled down. Lutes testified after he asked defendant for some ID, the defendant reached into his pockets and, as defendant pulled his hand out of the pocket, defendant said “he didn’t have nothing.” Lutes testified he noticed a little cellophane bag come out of defendant’s pocket. As defendant was “fumbling in his pockets,” and attempting to push the bag back into the pocket, Lutes asked him, “What do you have there?” After Lutes told defendant to pull his hand out of his pocket, Lutes reached over and pulled out the bag from defendant’s pocket. Lutes testified he was not sure how big the cellophane bag was and, because he thought defendant had a knife or gun in his pocket, he pulled the bag out.

The evidence does not clearly show whether the cellophane bag was removed from a pocket in defendant’s jacket or pants. After removing the bag, Lutes determined it contained illegal drugs. Defendant was then arrested for unlawful possession of a controlled substance. It was determined the bag contained lysergic acid diethylamide (LSD) and psilocybin.

Lutes’ partner, J.D. Clingon, testified similarly. Clingon testified the two men in the Bronco looked suspicious because they matched the description of the two men reportedly involved in the fight and because they got into the truck and just sat there without moving. After a few minutes, Clingon stated he and his partner decided to go back to check out what was going on. They pulled up behind the Bronco, shined a light on the truck, and got out to approach on foot. Clingon testified the two men did not attempt to flee the truck as they approached.

The trial court denied the motion to suppress. The court reasoned the stop was proper under section 107—14 of the Code and the seizure of the bag was proper under the standards announced in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. Following a trial, defendant was found guilty of possession and sentenced to 30 months’ probation.

Defendant argues the initial stop was not proper under Terry because defendant’s conduct was not unusual and, therefore, could not lead the officers to conclude criminal activity was afoot. Defendant further argues that even if the stop was proper, the search violated the fourth amendment guarantees against unreasonable searches and seizures because there was no evidence to support a conclusion that defendant was armed and dangerous. Additionally, defendant contends even if the officer could have concluded defendant was armed and dangerous, a search authorized by Terry is a “pat-down” search and not one where items may be seized from inside a suspect’s clothing.

We first address whether the stop was proper under Terry. In Terry, the Supreme Court held an investigatory stop is justified if the police officer can point to specific and articulable facts which reasonably warrant an intrusion. The holdings in Terry and Sibron v. New York (1968), 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889, were codified in sections 107—14 and 108—1.01 of the Code. Section 107—14 provides:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense as defined in Section 102—15 of this Code, and may demand the name and address of the person and an explanation of his actions. Such detention and temporary questioning will be conducted in the vicinity of where the person was stopped.” (Ill. Rev. Stat. 1987, ch. 38, par. 107-14.)

When examining the conduct of law-enforcement officials, the facts of each case are judged against an objective standard. That is, would a person of reasonable caution, knowing the facts the officer had available at the time of the seizure or stop, believe the action taken was appropriate? (Terry, 392 U.S. at 21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880.) A motion to suppress evidence attacks the validity of police conduct in seizing and searching a defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 114—12.) A reviewing court will not disturb the trial court’s ruling on a motion to suppress unless it is against the manifest weight of the evidence. People v. Hubbard (1988), 170 Ill. App. 3d 572, 524 N.E.2d 1263.

The evidence shows that Officer Lutes and his partner were on Phoenix Street to investigate a complaint of a fight. The defendant and his companion were seen walking in the area of the fight and matched the description of the two persons allegedly involved. Defendant and his companion were acting suspiciously. The circumstances presented specific and articulable facts for the officers to stop defendant. The case defendant relies on, People v. Schlottman (1976), 37 Ill. App. 3d 62, 344 N.E.2d 8, is distinguishable. There, police investigating a “pot” party stopped a car driving slowly toward the site of the party. Because the officers had no specific facts tying the car occupants to the party, the court found the stop was improper. In the case presented, we conclude the trial court’s determination that the stop was proper is supported by the evidence. See People v. Hall (1980), 90 Ill. App. 3d 1073, 414 N.E.2d 201, cert. denied (1981), 454 U.S. 893, 70 L. Ed. 2d 207, 102 S. Ct. 388.

Defendant next contends the search was illegal under Terry and Sibron. After a stop, a search for weapons may be conducted if the officer has reason to believe he is dealing with an armed and dangerous individual. (Ill. Rev. Stat. 1987, ch. 38, par. 108—1.01; Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) The determination of whether an officer acted reasonably is based on an objective standard which takes into account the specific reasonable inferences the officer is entitled to draw from the facts in light of his experience. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) Even though, as in the case presented, the temporary stop of a defendant is proper, the right to frisk or search a defendant must be separately determined. People v. Galvin (1989), 127 Ill. 2d 153, 165, 535 N.E.2d 837, 842.

We disagree with defendant’s summary of the evidence on this issue. Officer Lutes testified he approached the passenger side of the Bronco and asked the defendant for some identification. As defendant pulled his hand out of his pocket, defendant said he had no identification. Lutes then noticed a portion of a cellophane bag protruding from the pocket. Lutes testified defendant was fumbling in his pockets and, because Lutes did not know at that time whether defendant had a knife or a gun in his pocket, Lutes reached over to pull the bag out of defendant’s pocket. This case is unlike Ybarra v. Illinois (1979), 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338, where the defendant made no attempt to conceal contraband and did not act in any way suspicious. This case is also unlike Galvin, where the officer provided no articulable facts to justify a pat-down search of the defendant, but merely provided an affirmative response to a question at trial on whether he searched defendant to protect his safety. We conclude that Lutes provided specific and articulable facts — defendant’s fumbling in his pocket and Lutes’ fear that defendant may have a weapon — to justify a search for weapons. We further find his belief that defendant may have had a weapon was reasonable.

Defendant raises a final issue on the manner in which the search was executed. Defendant maintains Terry and Sibron direct that a pat-down search must be conducted before intrusion into a defendant’s clothing is authorized. Consideration of this issue requires a review of the language used in Terry. In Terry, the Supreme Court noted the scope of a search “must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation.” (Terry, 392 U.S. at 19, 20 L. Ed. 2d at 904, 88 S. Ct. at 1878, quoting Warden v. Hayden (1967), 387 U.S. 294, 310, 18 L. Ed. 2d 782, 794, 87 S. Ct. 1642, 1652 (Fortas, J., concurring).) Further, the Terry Court stated a search for weapons must be strictly circumscribed by the exigencies which justify its initiation. (Terry, 392 U.S. at 25-26, 20 L. Ed. 2d at 908, 88 S. Ct. at 1882.) In Terry, the pat-down search there was determined to be proper because it was limited to what was minimally necessary under the circumstances. Terry did not hold that a pat-down search was the only means of searching for weapons.

Defendant relies principally on People v. Trice (1978), 56 Ill. App. 3d 849, 372 N.E.2d 699, which in turn relied on Sibron. In Trice, police, acting on information from an informant that the defendants were in possession of heroin, approached the defendants and a third party and searched the pocket of a coat the third party was carrying over her arm. The officer in Trice testified he was looking for narcotics. The appellate court in Trice, quoting Sibron, affirmed the trial court’s order suppressing the evidence on the basis that the search was not limited in scope to a pat-down search for weapons. We find these cases distinguishable. Both Sibron and Trice involved a scenario where officers were looking for drugs and there was no evidence that the officers’ safety was in danger. In both cases, the issue was whether a search for weapons could be conducted and not whether a pat-down search for weapons must be conducted.

Turning to the case before us, Lutes testified he believed his safety was in danger because the defendant was fumbling in his pocket. The search Lutes conducted consisted of reaching into the same pocket and pulling out its contents. The rest of defendant’s clothing was not searched. Terry did not limit a search for weapons to a pat-down search, and the limited search conducted here was proper under the circumstances of this case.

For the foregoing reasons, the order denying the motion to suppress is affirmed and defendant's conviction and sentence for possession are affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


text:
    WANONA ENGEL et al., Plaintiffs-Appellants, v. ST. MARY’S HOSPITAL OF DECATUR, Defendant (Herbert Gutierrez et al., Respondents in Discovery; Samuel Apichai, Respondent in Discovery-Appellee).—WANONA ENGEL et al., Plaintiffs-Appellants, v. ST. MARY’S HOSPITAL OF DECATUR et al., Defendants-Appellees.
    Fourth District
    Nos. 4—89—0750, 4—89—0760 cons.
    Opinion filed June 7, 1990.

      Komessar & Wintroub, of Chicago (Mark S. Komessar, of counsel), for appellants.
    Garry E. Davis, of Erickson, Davis & Murphy, Ltd., of Decatur, for appellee Herbert Gutierrez.
    Richard J. Wilderson, of Graham & Graham, of Springfield, for appellee St. Mary’s Hospital of Decatur.
    John E. Pick, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellee William Wagner.
    Heyl, Royster, Voelker & Allen, of Peoria (Frederick P. Velde, Karen L. Kendall, and Adrian E. Harless, of counsel), for appellee Samuel Apichai.
   JUSTICE STEIGMANN

delivered the opinion of the court:

On April 14, 1987, Wanona and Donald Engel sued St. Mary’s Hospital, alleging malpractice in the medical treatment given Wanona on January 9, 1984. In their complaint, Wanona claimed to have discovered the malpractice in March 1986. The complaint also named Drs. Apichai, Gutierrez, and Wagner as respondents in discovery under section 2—402 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2—402).

The Engels later moved for leave to file an amended complaint adding the doctors to the list of defendants, but in September 1987 this motion was denied based upon the Engels’ failure to properly notify the doctors of the motion. On the same day in September 1987 that their motion to amend was denied, the Engels filed another medical malpractice complaint that named the same doctors and St. Mary’s Hospital as defendants based upon the same treatment provided Wanona. Plaintiffs voluntarily dismissed the September 1987 complaint on April 6, 1988, but refiled it on April 6, 1989. Because this new action was filed within one year of its voluntary dismissal, it was timely filed under section 13—217 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 13-217).

In response to the 1989 action, all four defendants filed motions to dismiss based on the pendency of the April 1987 action between them and the Engels. The trial court granted each defendant’s motion to dismiss, and the Engels appeal those orders of dismissal.

Section 2—619(3) of the Code permits a defendant to file a motion for dismissal of an action if there is another action pending between the same parties for the same cause. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(3).) Defendants argue that the Engels should not be permitted to avoid the adverse ruling in 1987, when the Engels attempted to change the doctors from respondents in discovery to defendants, by simply refiling a new cause of action in 1987 on the same day that the adverse ruling was made. The legitimacy of the new cause of action, filed in September 1987, is the basis for the legitimacy of the 1989 cause of action filed by the Engels against the doctors. According to the defendants, to allow the Engels to do this would render the provisions of section 2 — 402 meaningless. As a result, defendants claim that the circuit court properly dismissed them from the 1989 case.

At the outset, the Engels concede that since St. Mary’s Hospital was named as a defendant in the April 1987 action, and not as a respondent in discovery, it was properly dismissed from the 1989 case. We accept this concession and, to that extent, affirm the decision of the circuit court.

The issue that remains is whether the doctors, as respondents in discovery, were parties to the April 1987 action. Section 2—402 of the Code describes the obligations and the status of a respondent in discovery as follows:

“Persons so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—402.)

A lawsuit naming an individual as a respondent in discovery is not an action against that individual as used in section 2—1009, pertaining to voluntary dismissals. (Murphy v. Giardina (1980), 82 Ill. 2d 529, 533, 413 N.E.2d 399, 401.) A pleading naming respondents in discovery does not constitute a complaint at law; it is simply a discovery device. Murphy, 82 Ill. 2d at 533, 413 N.E.2d at 401.

Because the doctors were not parties to the April 1987 lawsuit, the trial court erred in granting their motions to dismiss the 1989 action.

Section 2—402 also states the following:

“A person named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period.” Ill. Rev. Stat. 1987, ch. 110, par. 2—402.

Citing the above language, the doctor defendants also argue that the attempt by the Engels in September 1987 to convert the doctors from respondents in discovery to defendants precluded the Engels from later bringing suit against the doctors even though the statute of limitations had not run. We disagree. We hold that as long as a complaint has been filed within the applicable statute of limitations, the pendency of an action naming a defendant as a respondent in discovery under section 2—402 of the Code is without any significance. See Flores v. St. Mary of Nazareth Hospital (1986), 149 Ill. App. 3d 371, 376, 502 N.E.2d 1, 4.

The six-month provision of section 2—402 of the Code means that a plaintiff has an additional six months beyond the date the statute of limitations would otherwise have run in which to convert a respondent in discovery to a defendant. (Arndt v. Resurrection Hospital (1987), 163 Ill. App. 3d 209, 215, 517 N.E.2d 1, 4; Flores, 149 Ill. App. 3d at 375-76, 502 N.E.2d at 4.) According to the factual averments of plaintiffs’ complaint (which at this stage we must accept as true), the statute of limitations had not yet run in this case. Therefore, the six-month provision of section 2—402 has no application to this case.

Affirmed in part; reversed in part.

KNECHT, P.J., and GREEN, J., concur.