text:
    TIMOTHY P. KLIER, Plaintiff-Appellant, v. GREGORY A. SIEGEL et al., Defendants-Appellees.
    Second District
    No. 2—89—0649
    Opinion filed July 24, 1990.

      Daniel J. Klier, of Chicago, for appellant.
    Brian P. Shaughnessy, of Tressler, Soderstrom, Maloney & Preiss, of Wheaton, and John L. Schroeder and Susan D. Shivers, both of Connelly, Mustes, Palmer & Schroeder, of Chicago, for appellee Gregory A. Siegel.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Timothy P. Klier, appeals from an order of the trial court compelling the release and satisfaction of a judgment wherein defendants, Gregory A. Siegel and Stephen J. Bevilacqua, were allowed certain credits for advance payments made to plaintiff prior to the trial on damages. Under the facts of this case, we agree that the credits were permissible, and we, therefore, affirm.

On February 26, 1986, plaintiff filed a complaint against defendants, seeking money damages for personal injuries plaintiff received in an automobile accident which occurred on July 4, 1982. After a jury trial on the issue of damages only, defendants having admitted liability, the jury returned a verdict for plaintiff in the amount of $11,000, and judgment was entered on February 24, 1988.

Prior to the commencement of the lawsuit, defendants advanced certain payments to plaintiff for medical expenses and lost wages amounting to $5,250.52. On March 2, 1988, defendants tendered to plaintiff checks in the amount of $5,749.48, representing the amount of the judgment ($11,000) less advance payments of $5,250.52 made by an insurer of the defendants, and requested that a satisfaction of judgment be executed. On March 4, 1988, plaintiff’s attorney returned the $5,749.48 to defendants and refused to execute a satisfaction of judgment.

On June 27, 1988, defendant Bevilacqua filed a motion requesting the court to apply a setoff of $5,250.52 to the judgment which would result in a balance of $5,749.48. Defendant also requested an order compelling plaintiff to execute a satisfaction of judgment. On July 28, 1988, the trial court found that it did not have jurisdiction to hear the matter; it characterized the motion as a remittitur and believed defendant’s motion should have been brought within 30 days after judgment by means of a post-trial motion or possibly after 30 days from the entry of judgment under section 2—1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) if due diligence could be shown.

On February 28, 1989, defendants tendered to plaintiff checks totalling $5,924.24. These amounts represented the $11,000 judgment less payments of $5,250.52 advanced to plaintiff prior to trial plus nine days of interest and $162 in costs. Defendants again requested that plaintiff execute a release and satisfaction of judgment. On March 1, 1989, plaintiff’s attorney returned the checks and refused to execute a satisfaction of judgment.

Defendants again petitioned the court, this time pursuant to section 12 — 183(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 12—183(b)), to enter an order of satisfaction of judgment. On March 29, 1989, the trial court granted defendants’ petition conditioned upon the payment of $5,924.24 to the clerk of the court and ordered that such payment would be deemed full satisfaction and release of the judgment. The amount was paid to the clerk of the court.

On April 18, 1989, plaintiff petitioned the court to reconsider its order of March 29. Plaintiff’s petition was denied on June 1, 1989. In its letter of opinion, the trial court found that there was sufficient evidence of the advance payments and that there was no dispute that the advance payments were meant to reduce the obligation owed by defendants to plaintiff. The trial court was careful to explain that it did not have jurisdiction to reduce the judgment, but, rather, pursuant to section 12 — 183(b), it was granting credits to defendants who demonstrated satisfaction of the judgment under that section.

On appeal, plaintiff contends that it was error for the trial court to compel a release of judgment, arguing that (1) the defendant did not tender the full amount by tendering $5,749.48, (2) the plain language of section 12 — 183(a) does not allow a court to give credit to a defendant for payments made prior to the filing of a lawsuit, and (3) the trial court did not have jurisdiction to “modify” a judgment more than 30 days after its entry by means of a credit or setoff.

The construction of section 12 — 183(a) as applied to the facts of this case appears to raise an issue of first impression in this jurisdiction. Section 12 — 183(b) reads in pertinent part:

“If the judgment creditor, his or her assigns of record or other legal representative to whom tender has been made of all sums of money due him or her from the judgment debtor including interest, on any judgment entered by a court, willfully fails or refuses, at the request of the judgment debtor or his or her legal representative to execute and deliver to the judgment debtor or his or her legal representative an instrument in writing releasing such judgment, the judgment debtor may petition the court in which such judgment is of record, making tender therewith to the court of all sums due in principal and interest on such judgment, *** whereupon the court shall enter an order satisfying the judgment and releasing all liens based on such judgment.” (Ill. Rev. Stat. 1987, ch. 110, par. 12—183(b).)

There is virtually no case law construing this section or its predecessor (Ill. Rev. Stat. 1979, ch. 77, par. 68a(b)). Peoples v. Carborundum, Co. (1984), 123 Ill. App. 3d 39, 41, 462 N.E.2d 829.

We do not believe, as plaintiff appears to argue, that defendant must tender all sums due only after a judgment has been entered in order to obtain an order of satisfaction of judgment, nor do we believe defendants were required to proceed only by way of a post-trial motion attacking the final judgment within 30 days or by means of a section 2 — 1401 petition within two years of the entry of judgment. These were not defendants’ exclusive remedies. Our reasoning follows.

The rules of statutory construction require this court to determine and follow the intent of the legislature’s acts. (Carey v. Elrod (1971), 49 Ill. 2d 464, 471, 275 N.E.2d 367.) It is a cardinal rule of construction that the intent and meaning of a statute are to be determined from the entire statute, and all its sections are to be construed together in light of the general purpose and plan, the evil intended to be remedied, and the object to be obtained; if the language is susceptible of more than one construction, the statute should receive the construction that will effect its purpose rather than defeat it. (Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, 977-78, 427 N.E.2d 399.) Moreover, the consequences resulting from various constructions of the statute must be taken into consideration, and the court should select the construction which leads to a logical result and avoid one which the legislature could not have contemplated. In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 258, 541 N.E.2d 245.

It is clear that the purpose of a section 12 — 183 proceeding is to determine whether all sums of money “really due” from the judgment debtor have in fact been paid and the judgment satisfied. (Ill. Rev. Stat. 1987, ch. 110, par. 12—183(a); see also Russell v. Klein (1974), 58 Ill. 2d 220, 224, 317 N.E.2d 556; Nickerson v. Suplee (1912), 174 Ill. App. 136, 140.) It was formerly the practice to seek an order of satisfaction of judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 72), now section 2—1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401), and section 72 was thought to provide the exclusive method for obtaining relief from final orders and judgments more than 30 days after their entry. (See C. Davis, Scope of Section 72 of the Civil Practice Act, 55 Ill. B.J. 820 (1967).) The Civil Practice Act appears to have abolished all prior existing common law writs (including the writ of audita, querela) for relief after 30 days from the entry of judgment; there were two possible exceptions: relief from void judgments, and relief afforded by the inherent power of a court to make such orders as may be necessary to carry its judgment into effect and render it operative, a power which continues in the court until its judgment is satisfied. See C. Davis, Scope of Section 72 of the Civil Practice Act, 55 Ill. B.J., at 822 (1967); see also Weaver v. Bolton (1965), 61 Ill. App. 2d 98, 105-06, 209 N.E.2d 5.

In Russell, the supreme court determined that a judgment debtor may claim a discharge and satisfaction of judgment more than two years after the entry of judgment despite the two-year time limitation of section 72 and held that section 72 was not the exclusive remedy; furthermore, a section 72 remedy was available only for relief based on matters which antedated the rendition of judgment and not those matters which arose subsequent to its rendition. The Russell court reasoned that such a two-year time limitation would be illogical and incompatible with the seven-year time limitation provided for execution on a judgment. Russell, 58 Ill. 2d at 226, 317 N.E.2d at 559; see also Ill. Rev. Stat. 1987, ch. 110, par. 12—108.

Because it is pivotal to our decision, we address first plaintiff’s argument that the trial court did not have jurisdiction to “modify” its order of judgment more than 30 days after it became final. We note that plaintiff cites no case law requiring defendants to seek affirmative relief from the judgment under the 30-day provisions of section 2 — 1301(a) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1301(a)) or, following the 30-day period, under section 2—1401 (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401). However, the fact that defendants did not avail themselves of the usual post-trial motion for relief from a judgment is not fatal. Defendants were not challenging the final judgment itself. Rather, their petition was in the nature of an enforcement or supplementary proceeding invoking the continuing power of the court to control its own process. In Sandburg v. Pa pineau (1876), 81 Ill. 446, 448-49, the supreme court stated the applicable theory:

“There is no principle of law better recognized than that which gives to courts of record power over the process of their courts. It is essential to the administration of justice, and it by no means depends upon statutory enactment, but the power is coeval with the common law courts; and such courts will recall their process and quash the same, when it is shown that it would be illegal or inequitable to permit its further use, and to allow it to be enforced. If a judgment were satisfied, and, through mistake or by design, an execution were to issue upon it, does any one suppose the court from which it issued is powerless to recall and quash it? Or if it was only partially satisfied, and an execution were to issue for the full amount of the judgment, would any one have the hardihood to say that the court could not order the credit to be indorsed on the execution? So the court has power, in all cases, to compel credits on judgments or executions, where it would be illegal or inequitable to proceed to collect the amount claimed. A court of justice will never permit a plaintiff, simply because he has acquired an unjust advantage by obtaining an execution, to retain and enforce it.” 81 Ill. at 448-49.

See Gatto v. Walgreen Drug Co. (1974), 23 Ill. App. 3d 628, 641-42, 320 N.E.2d 222, rev’d on other grounds (1975), 61 Ill. 2d 513, 337 N.E.2d 23.

Weaver v. Bolton (1965), 61 Ill. App. 2d 98, 209 N.E.2d 5, is a more recent case involving a petition seeking credit for a payment antedating the judgment which could not have been properly brought under a section 72 petition because the petitioner had full knowledge of the settlement prior to the entry of judgment and thus the petitioner had failed the due diligence requirement of a section 72 petition. Nevertheless, in Weaver, this court determined that a trial court was not without jurisdiction to hear the petition, stating:

“This does not mean, however, that the trial court was without jurisdiction to hear such petition. It had authority to make such orders and issue writs as were necessary to carry its judgments into effect and to render them operative. This power continued in the court until its judgments were satisfied, and the present proceeding pertained to the satisfaction of these judgments rather than their modification as that term is generally understood. Many such questions arise subsequent to judgment in which jurisdiction is to be exercised.
Such judicial power has long been recognized. In Virginia v. West Virginia, 246 U.S. 565 (1917), at page 591, the court stated: ‘That judicial power essentially involves the right to enforce the results of its exertion is elementary.’ ” 61 Ill. App. 2d at 105, 209 N.E.2d at 9.

In other words, the amount of the execution to be issued upon a judgment, as in this case, is subject to the legal and equitable control of the court. (Gatto, 23 Ill. App. 3d at 643, 320 N.E.2d at 233; see also Heller v. Lee (1985), 130 Ill. App. 3d 701, 703, 474 N.E.2d 856.) As the Weaver court explained, where there is a single and indivisible injury caused by the negligence of defendants, the damages are inseparable, and any amounts received from any of the defendants must be deducted from the total damages sustained. (Weaver, 61 Ill. App. 2d at 107, 209 N.E.2d at 10; accord YMCA v. Midland Architects, Inc. (1988), 174 Ill. App. 3d 966, 970, 529 N.E.2d 288.) Similarly, we find that, in this case, the trial court had jurisdiction to entertain the motion to determine the amount to be paid to satisfy the judgment.

Having determined that the trial court had jurisdiction to determine the issue of whether the judgment was satisfied, we also conclude that it was proper for the trial court to give defendants a credit or setoff for sums previously paid to plaintiff before the entry of judgment. First, we point out that Illinois has a strong public policy against a plaintiff’s double recovery for the same injury:

“The theory of recovery in a negligence action is focused upon compensation to the plaintiff for his injuries and not punishment to the defendant. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 363, 392 N.E.2d 1, 5.) An injured person is entitled to one full compensation for his injuries, and a double recovery for the same injury is against public policy. (Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 412 N.E.2d 518.) Thus, a plaintiff who has recovered for his damages should have no basis to complain because a defendant benefited from a setoff.” (Eberle v. Brenner (1987), 153 Ill. App. 3d 700, 702, 505 N.E.2d 691, 693.)

(See also Dick v. Gursoy (1984), 124 Ill. App. 3d 185, 471 N.E.2d 195.) In this connection, in order to prevent a double recovery, our supreme court has adopted the view that “ ‘[pjayments made by one of the tortfeasors on account of the tort either before or after judgment, diminish the claim of an injured person against all others responsible for the same harm. This is true although it was agreed between the payor and the injured person that the payment was to have no effect upon the claims against the other.’ (Restatement (Second) of Torts sec. 885, comment e (1979).)” Popovich v. Ram Pipe & Supply Co. (1980), 82 Ill. 2d 203, 209, 412 N.E.2d 518, 521.

The thrust of plaintiff’s arguments seems to be that defendants were required to assert their right to a setoff or a counterclaim either before the entry of judgment or within 30 days thereafter or defendants’ claims would be waived. However, it is now established that a defendant is not required to immediately assert his rights against a plaintiff by way of setoff or counterclaim if it would be inconvenient or strategically inadvisable to do so under section 2 — 608(a) of the Code of Civil Procedure. (Midland Architects, 174 Ill. App. 3d at 971, 529 N.E.2d at 291-92; Kennedy v. First National Bank (1985), 129 Ill. App. 3d 633, 636, 473 N.E.2d 604; see also Ill. Rev. Stat. 1987, ch. 110, par. 2—608.) This court has previously determined that a supplemental post-trial motion for a setoff filed more than 30 days after the verdict was rendered was not fatally defective because the question of a setoff does not arise as the result of the trial and the issue may be raised thereafter. J.F. Equipment, Inc. v. Owatonna Manufacturing Co. (1986), 143 Ill. App. 3d 208, 221, 494 N.E.2d 516.

Based on the foregoing, we believe that the trial court had jurisdiction to hear defendants’ motion for an order of satisfaction of judgment and, upon proper proof, could exercise its equitable powers to determine that defendants were entitled to a credit or setoff for payments made to plaintiff prior to the lawsuit for purposes of compensation for his injury. As we have pointed out, a petition under section 12 — 183(b) need not be made by way of either a post-trial motion within 30 days of judgment or by way of a section 2 — 1401 petition since a motion for an order of satisfaction is not, technically speaking, an attack on the final judgment itself but is rather in the nature of a supplemental enforcement proceeding; it is governed, if at all, by the time constraints applicable to such a proceeding.

The few cases we have examined on this subject from other jurisdictions support the view that a post-judgment motion for the satisfaction of judgment is the proper method to obtain a credit even for payments made prior to the rendition of judgment where defendants did not seek credits in the main cause of action. See, e.g., Boles v. Steel (1972), 288 Ala. 732, 264 So. 2d 194 (post-judgment motion to satisfy judgment was proper method to obtain credit for settlement payments advanced to defendant before trial); Edwards v. Passarelli Brothers Automotive Service, Inc. (1966), 8 Ohio St. 2d 6, 221 N.E.2d 708 (principle of res judicata did not prevent judgment debtor from obtaining credit for payments advanced pursuant to agreement before judgment rendered; credit toward satisfaction of judgment could be obtained by post-trial motion upon proof of payment; judgment debtor had no right to credit until final judgment rendered); Russell v. Ashe Brick Co. (1976), 267 S.C. 640, 230 S.E.2d 814 (defendant entitled to offset or credit sought in post-trial motion for payment made to plaintiff prior to judgment in order to prevent recovery in excess of jury verdict); Byrd v. Stuart (1969), 224 Tenn. 46, 450 S.W.2d 11 (judgment debtor not attacking final judgment could properly seek partial satisfaction for advance payment in post-judgment motion brought in court of equity to prevent double recovery).

Commenting on the common thread found in the cases it had similarly examined, the Russell court explained that these cases “involved ‘advance payments’ which as the term suggests is the laudable practice of expediting payment to injured parties prior to and in anticipation of future settlement or judgment.” (Russell, 267 S.C. at 643, 230 S.E.2d at 815.) The court also indicated that the apparent lack of prior litigation on the subject is perhaps explained by the obvious wrong in permitting a plaintiff to collect funds in excess of the jury’s verdict. 267 S.C. at 643, 230 S.E.2d at 815. See generally 47 Am. Jur. 2d Judgments §§997 through 1000 (1969).

In reviewing the present case, we likewise find that plaintiff should not be permitted to obtain a windfall recovery stemming from his evasiveness in acknowledging receipt of the advance payments before judgment or in his refusal to accept the balance of the sums owed to him when they were tendered after judgment. We believe that our determination is consistent with the objective of the statute: the release of a judgment debtor from further obligation upon a proper showing that the judgment creditor has in fact been paid or satisfied for the injury which is the subject of that judgment. We conclude that the trial court properly credited defendants’ payment in ordering the satisfaction of judgment and that its order was correctly entered.

The judgment of the circuit court is affirmed.

Affirmed.

REINHARD and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN JUSTICE INGLIS,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHRISTOPHER KOLODY, Defendant-Appellee.
    Second District
    No. 2—89—0385
    Opinion filed July 24, 1990.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The State appeals from an order of the circuit court which granted the motion of defendant, Christopher Kolody, to suppress evidence. The State raises two issues on appeal: whether the trial court erred in suppressing the evidence because the search of defendant’s car was based on probable cause; and whether the trial court erred in suppressing the evidence because the search of defendant’s car was valid as a search incident to defendant’s arrest. We affirm.

Defendant was charged with unlawful possession of marijuana (Ill. Rev. Stat. 1987, ch. 56x/2, par. 704(c)) and unlawful delivery of alcohol to a minor (Ill. Rev. Stat. 1987, ch. 43, par. 131(a)). Defendant filed a motion to suppress the bag of marijuana found in the glove compartment of his car.

At the hearing, defendant testified that on October 15, 1988, at 1 a.m., he and some friends were “hanging out” in the parking lot of a bowling alley. Defendant was standing next to his car talking with Terry Farmer. A police officer drove up, got out of his squad car and approached the defendant. Farmer walked around defendant’s car and climbed into the backseat. The officer asked defendant what they were doing there and what Farmer was doing in the car. The officer then asked Farmer to get out of the car. As Farmer got out, the officer asked him what he had set down inside the car. The officer reached into the car and pulled out a beer. Farmer admitted that the beer was his.

The officer then asked for Farmer’s and defendant’s drivers’ licenses. Defendant showed his driver’s license to the officer. Defendant was 21 years old on that date. Farmer also gave his license to the officer. The officer asked Farmer who else had beer, and Farmer told him that he did not know. The officer then arrested Farmer and put him in the squad car.

While defendant was talking with two girls, another squad car pulled up. The officers told defendant they were going to search his car. Defendant was not handcuffed or under arrest at that time. The officers searched the backseat floor, the front seat and then the glove compartment. The officers found a “12-pack” in the backseat of the car and a bag of marijuana in the glove compartment. They then arrested defendant and put him in the other squad car. Defendant did not consent to the search of the car, and the officers did not have a warrant to search the automobile.

Farmer testified that he, defendant, and eight or nine others were in the parking lot of a bowling alley when a police officer drove up. The officer got out of the car and began talking to defendant. Defendant was not holding a beer. Farmer had a beer in his hand, so he got into defendant’s car and sat in the backseat. The officer asked Farmer to get out of the car. Farmer put down the beer and started to get out. The officer reached into the car and grabbed the beer. The officer asked if it was Farmer’s beer. Farmer admitted that it was. The officer also asked Farmer how old he was, and Farmer told the officer that he was 20 and defendant was 21. The officer asked to see some identification and asked Farmer who else was drinking. Farmer told the officer that he did not know. A girl who was present started her car, and the officer told her not to go anywhere. The officer again asked Farmer who else was drinking. Farmer again told him he did not know, and the officer told Farmer that he was under arrest since he would not cooperate. Farmer was searched, handcuffed and put in the squad car. While he was sitting in the squad car, Farmer saw another squad car pull up. The two officers walked around defendant’s car with flashlights. They then searched the car. They found a bag of marijuana in the car and showed it to defendant. The officers then searched defendant, put handcuffs on him and put him in the other squad car. Farmer stated that there were other beer bottles outside the car, but they did not belong to Farmer.

Richard Beyer, a Carol Stream police officer, testified that he saw defendant and Farmer standing next to a car in the bowling alley parking lot. Beyer observed Farmer kick over three beer bottles, quickly walk around the back of the car, and get into the backseat. Beyer asked Farmer for identification and asked Farmer to get out of the car. As Farmer got out of the car, he took something from underneath his coat and set it on the floor of the car. Beyer noticed that it was an open beer bottle. After examining Farmer’s and defendant’s drivers’ licenses, Beyer determined that Farmer was 20 and defendant was 21. Beyer asked Farmer where he had gotten the beer. Farmer told Beyer that defendant had given it to him. Beyer then arrested Farmer for unlawful possession of alcohol by a minor.

Beyer then asked defendant if he knew Farmer was under age and if he had given Farmer the beer. Defendant admitted to Beyer that he had. According to Beyer, he arrested defendant and proceeded to search defendant’s car. Beyer told defendant to stand by the rear passenger door of the car. Beyer started the search in the backseat and retrieved the open bottle of beer. He noticed a package of cigarette rolling papers on the floor. Beyer then checked the center console where he found a plastic bag with marijuana in it. During the search, another police officer arrived. Defendant was then searched, handcuffed and put in the other squad car.

The court asked Beyer where Farmer and defendant were when Beyer began the search of defendant’s car. Beyer explained that Farmer was in the squad car. Beyer also testified that he told defendant to stand next to defendant’s car “partially because [Beyer] did not wish to put the two of them in the back of the same car.” Beyer admitted that, before he began the search, he had already recovered the open bottle of beer from the car. Beyer further stated that he first noticed the rolling papers when he recovered the beer bottle. This was prior to the time he went back to search the car for any other beer. The court then asked Beyer the object of his search. Beyer answered that he was searching for any other open liquor.

In rebuttal, Heather August testified that she was present in the bowling alley parking lot with defendant and Farmer. A police officer pulled up and asked defendant what they were doing. Farmer walked around defendant’s car and sat in the backseat. The officer asked Farmer to get out of the car and also asked what Farmer put down on the floor of the car. The officer picked up a beer bottle and asked if that was what Farmer had set down. Farmer admitted that it was his beer. Farmer told the officer that he was 20 and gave the officer his identification. One of the other girls present started her car, and the officer told her to turn off the car. The officer repeatedly asked Farmer who else was drinking. Farmer repeatedly answered that he did not know. The officer then said that Farmer was under arrest because he would not tell the officer who else was drinking. The officer told Farmer to get up against the car, handcuffed him, and put him in the police car. A second officer pulled up and the two officers searched defendant’s car. One of the officers pulled out a bag of marijuana and told the other officer what he had found. The second officer then asked August and the two other girls if they were with defendant and Farmer. The girls said they were not, so the officer told them they could go. At that point defendant was not under arrest.

After hearing the arguments of counsel, the court stated that it thought the evidence was close. The court denied the motion to suppress, however, because the court believed that the presence of the rolling papers made it reasonable for the officer to conclude that there was marijuana in the car. The court did not resolve the factual questions of whether the marijuana was in the console or the glove compartment, or when defendant was put under arrest.

Defendant filed a motion to reconsider, arguing that the presence of rolling papers did not justify a further search of the car. The State responded that the search was justified as a further search for open liquor in the car. The court decided that its prior order was in error for four reasons. First, although the court thought that the presence of rolling papers justified a search of the car, the case law states that it is not a sufficient basis. Second, the only sufficient basis to search would be a search for additional alcohol, but the officer did not say he was searching for alcohol when he searched the car. Third, defendant was 21. Finally, there was no evidence to indicate that there was any alcohol in the car because they were standing outside the car when the officer pulled up, and the only open alcohol in the car was the bottle Farmer put in the car when he saw Officer Beyer drive up. According to the court, delivery of alcohol to a minor is such an insignificant violation that it did not justify searching the car. The State appeals from the court’s decision.

Although defendant has not filed an appellate brief, we may resolve the issues presented on the merits without the aid of an appellee’s brief in conformance with the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33.

The State first contends that the evidence should not have been suppressed because the search of defendant’s car was based on probable cause. Initially, we note that a trial court’s decision to suppress evidence will not be overturned on review unless it is clearly erroneous. (People v. Galvin (1989), 127 Ill. 2d 153, 162.) On a motion to suppress, the defendant has the burden of proof to make a prima facie showing that the police illegally obtained the evidence. (People v. Neal (1985), 109 Ill. 2d 216, 218.) Once the defendant has sustained his burden, the State must then show that the search had legal justification. Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69.

It is well established that the police must obtain a search warrant prior to searching a vehicle unless the circumstances fall within an exception to the warrant requirement. (United States v. Ross (1982), 456 U.S. 798, 807-08, 72 L. Ed. 2d 572, 583, 102 S. Ct. 2157, 2164; Carroll v. United States (1925), 267 U.S. 132, 156, 69 L. Ed. 543, 552-53, 45 S. Ct. 280, 286; People v. Gulley (1982), 111 Ill. App. 3d 1091, 1094.) An exception exists when the police have probable cause to believe that there is contraband in the vehicle. (People v. Penny (1989), 188 Ill. App. 3d 499, 502.) In this context, probable cause exists when, considering the totality of the circumstances known to the police officer at the time of the search, a reasonable person would believe that contraband was present in the vehicle. Penny, 188 Ill. App. 3d at 502.

As defendant correctly argued to the trial court, the presence of rolling papers alone does not constitute probable cause to believe that the vehicle contained marijuana/contraband. (See People v. Wright (1980), 80 Ill. App. 3d 927, 931; People v. Damon (1975), 32 Ill. App. 3d 937, 938.) The State argues, however, that Officer Beyer had probable cause to search the car apart from the rolling papers. According to the State, since Farmer was in the car with open liquor, it would be natural for Beyer to assume he would find more alcohol in the car. This argument is flawed in several respects.

First, the trial court found that Beyer was not looking for alcohol when he searched the car, but was searching for marijuana. The credibility of the witnesses is for the trial court to determine, and we will not disturb its finding as it is supported by the record. (People v. Freeman (1988), 167 Ill. App. 3d 740, 744.) Second, the trial court also emphasized that defendant was 21 years old. Thus, any alcohol in the car would not be contraband because it was not illegal for defendant to have alcohol in his car. Third, the trial court found that there was no evidence to indicate that there was any open liquor in the car because defendant and Farmer were standing outside the car when the officer pulled up and the only open bottle in the car was the one Farmer put there.

Furthermore, “[t]he scope of a warrantless search of an automobile *** is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (People v. Clark (1982), 92 Ill. 2d 96, 100.) Based upon the record, it is unreasonable to believe that there were open bottles of beer in the console or glove compartment. Storing open beer bottles in a console or glove compartment is impractical because the beer would spill out and effective storage would be defeated. Finally, open bottles of beer in the car would not have been contraband because the car was legally parked in a private parking lot, not on the highway. (See Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11 — 502(a).) Therefore, we conclude that the trial court’s finding that Beyer did not have probable cause to search the car was not against the manifest weight of the evidence.

The State next contends that the search of the car was valid as a search incident to defendant’s arrest. In support of this contention, the State cites New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, for the proposition that, when a police officer has made a lawful custodial arrest of an occupant of a vehicle, the officer may search the passenger compartment of the vehicle. (Belton, 453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864.) The State’s reliance on Belton is misplaced. Belton does not apply in this case because defendant was not the driver or passenger of the car just before the arrest. (See 3 W. LaFave, Search and Seizure §7.1(b), at 5-6 (2d ed. 1987); see also Smith v. State (Tex. App. 1988), 759 S.W.2d 163; Gauldin v. State (Tex. Cr. App. 1984), 683 S.W.2d 411.) In this case, where the defendant was not in the vehicle prior to arrest, the Chimel standard applies: when lawfully arresting a person, the police may search the arrestee and the area within his immediate control. (Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040; Ill. Rev. Stat. 1987, ch. 38, par. 108-1.) The reason for allowing a search incident to an arrest is that it serves to protect the arresting officer from danger and prevents the destruction of evidence or the escape of the arrestee. Chimel, 395 U.S. at 763, 23 L. Ed. 2d at 694, 89 S. Ct. at 2040.

The trial court did not determine when defendant was placed under arrest. The failure to resolve this factual question does not require a remand because we may presume that the trial court credited only the testimony that supports its ruling. (See People v. Winters (1983), 97 Ill. 2d 151, 158.) The only evidence that defendant was arrested at the time of the search was Officer Beyer’s testimony that he arrested defendant but did not put him in the squad car because he did not want two people in the squad car together. Beyer did not testify that he searched defendant’s person, handcuffed him, or read him the Miranda warnings prior to searching the car. All the other witnesses testified that defendant was not under arrest at the time of the search. Beyer never testified as to why he did not immediately put defendant into the other squad car when the second officer arrived. Defendant’s person was not searched, and he was not handcuffed until after the officers found the marijuana.

Furthermore, the evidence indicates that defendant was “seized” and not arrested until after the car was searched. The girls who were there with defendant and Farmer were told not to leave and were permitted to leave only after the officers found the marijuana. The girls were “seized” (People v. Clark (1989), 185 Ill. App. 3d 231, 236, 238) but not under arrest. We believe the evidence supports the conclusion that defendant, like the girls, was “seized” until after the officers searched the car. Thus, the trial court could reasonably have con-eluded that defendant was not arrested until after the car had been searched and, therefore, the search could not be justified as a search incident to arrest.

Even if the court had concluded that defendant was under arrest at the time of the search, the search could not be upheld as a valid search incident to arrest. The evidence established that defendant was standing outside the car, near the front, and the bag of marijuana was found in either the console or the glove compartment. There is nothing in the record to indicate that the console or the glove compartment was within defendant’s immediate control (Smith v. State, 759 S.W.2d at 166) or was “within reach of” defendant (Belton, 453 U.S. at 460, 69 L. Ed. 2d at 775, 101 S. Ct. at 2864). Additionally, he was not a “recent occupant” of the car (Belton, 453 U.S. at 460, 69 L. Ed. 2d at 774, 101 S. Ct. at 2864). Thus, the search exceeded the permissible bounds to be valid as incidental to defendant’s arrest.

Alternatively, the record also supports the conclusion that any search that might have been proper was terminated after finding the open beer bottle and without finding the marijuana. There was no legal basis for a second search by the police officers.

Therefore, we conclude that the trial court’s decision to suppress the bag of marijuana was not against the manifest weight of the evidence.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

WOODWARD, J., concurs.

JUSTICE INGLIS,

dissenting:

I respectfully dissent from the majority’s conclusion that the police officers did not have probable cause to search defendant’s automobile after they found open liquor in the car.

Officer Beyer testified that he saw Farmer put a beer bottle, with beer still in it, on the floor of defendant’s automobile before Farmer exited the car. Farmer told Officer Beyer that he was drinking beer and indicated that he got the beer from defendant. Farmer also stated that he was 20 years old. Based on these facts, Officer Beyer had probable cause to believe that a crime had been committed, specifically that Farmer, a minor, unlawfully possessed alcohol (Ill. Rev. Stat. 1987, ch. 43, par. 134a) and defendant unlawfully delivered the alcohol to Farmer (Ill. Rev. Stat. 1987, ch. 43, par. 131(a)).

Given that Officer Beyer had probable cause to believe that a crime had been committed, he also had probable cause to believe that evidence of the crime may be found in the automobile. A similar situation was present in People v. Lawrence (1988), 174 Ill. App. 3d 818. In Lawrence, a police officer stopped the defendant’s automobile when he noticed the car contained a defective headlight. Upon further investigation, the officer observed an open bottle of beer in the car. The court stated that “[ajrguably, probable cause existed at the point that [the officer] observed and noted the open container of liquor in the car.” (Lawrence, 174 Ill. App. 3d at 822.) The court held that it was reasonable for the officer to search the automobile for contraband after the officer observed that the vehicle contained some items of contraband. 174 Ill. App. 3d at 822.

In the present case, Officer Beyer observed a beer bottle, with beer still in it, in defendant’s car. Like Lawrence, this observation that the vehicle contained some contraband gave Beyer the authority to search the car for additional items of contraband. Thus, I would find that Officer Beyer’s search of the automobile was reasonable under the specific facts in this case.

I would further find that the scope of the warrantless search was reasonable in this case. As the Court indicated in United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157, the scope of a warrantless search is “defined by the object of the search and the places in which there is probable cause to believe that it may be found.” (Ross, 456 U.S. at 824, 72 L. Ed. 2d at 593, 102 S. Ct. at 2172.) I believe that it was reasonable for Officer Beyer to suspect that there may be additional alcohol in the automobile after he observed Farmer’s open bottle of beer. Furthermore, it was reasonable for Officer Beyer to search the console and glove compartment due to the possibility that additional alcohol may be found in these areas.

While the majority correctly points out that a trial court’s ruling on a motion to suppress will not be overturned unless it is manifestly erroneous (People v. Galvin (1989), 127 Ill. 2d 153, 162), it is my opinion that the court's determination was contrary to the manifest weight of the evidence. (See Lawrence, 174 Ill. App. 3d at 822.) Consequently, I would reverse the order of the circuit court of Du Page County and remand this cause for further proceedings.


author: JUSTICE DUNN

text:
    THE TRAVELERS INSURANCE COMPANY, Plaintiff-Appellee, v. LA SALLE NATIONAL BANK, as Trustee, et al., Defendants-Appellants.
    Second District
    No. 2—89—1286
    Opinion filed July 24, 1990.

      Eugene A. DiMonte, of DiMonte & Lizak, of Park Ridge, for appellants.
    D. Kendall Griffith, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Defendants, La Salle National Bank as trustee under a land trust agreement, Flodstrom Family Partnership, the trust beneficiary, and Sven Flodstrom and Majken Flodstrom, appeal from the trial court’s order denying defendants’ motion to reconsider the court’s previous order placing plaintiff, Travelers Insurance Company, as mortgagee in possession of defendants’ property. On appeal, defendants contend that they have established good cause why they should remain in possession and the trial court’s order placing plaintiff in possession disregarded the statutory requirements of section 15 — 1701(b) of the Illinois Mortgage Foreclosure Law (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1701(b)). We reject defendants’ interpretation of the Act and affirm the order of the trial court.

On April 1, 1986, defendant La Salle National Bank executed a mortgage in favor of plaintiff to secure a promissory note for $15,500,000. The mortgaged property was improved real estate located in Lake County and held in trust by La Salle for the benefit of defendant Flodstrom Family Partnership. At the times relevant to the instant matter, the office building on the property was at least partially occupied by commercial tenants and generated an approximate monthly rental income of $150,000 according to an affidavit filed by defendants. Defendants allege that Sven Flodstrom and Majken Flodstrom are general partners in Flodstrom Family Partnership, but this fact does not appear in the record. Additionally, it is apparent that either the partnership or the Flodstroms or a combination of these parties operated and managed the commercial office building located on the mortgaged premises.

The note matured on April 30, 1989, and on August 18, 1989, plaintiff filed a complaint in foreclosure, in which it alleged that the mortgage was in default. Thereafter, counsel for plaintiff and defendants executed a stipulation in which they agreed to open a joint checking account. Defendants agreed to deposit all rents produced by the mortgaged property into the account and to submit to plaintiff a monthly schedule identifying proceeds and operating expenses. Plaintiff agreed to review the schedule, designate the expenses it approved and draw a check sufficient to cover each month’s expenses. The net proceeds were to be paid to plaintiff monthly. Paragraph 10 of the parties’ stipulation provided that none of the parties waived any of their rights, including plaintiff’s right to be made a mortgagee in possession. The trial court approved the stipulation and entered an agreed order incorporating its terms.

Plaintiff subsequently filed a motion to be placed as mortgagee in possession of the mortgaged premises pursuant to section 15 — 1701 of the Act (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1701). Plaintiff alleged that the mortgage instrument in question, which it had previously attached to its foreclosure complaint, expressly authorized plaintiff to take possession. Plaintiff further alleged that there existed a probability that it would prevail on its foreclosure complaint. Along with its motion for possession, plaintiff submitted a summary judgment motion and a supporting affidavit which verified the allegations contained in its complaint and also indicated that defendants owed $15,992,782.17 in unpaid principal and interest as of October 6, 1989.

Defendants objected to plaintiff’s motion for possession and denied the accuracy of plaintiff’s figures. Defendants asserted that they had equitable defenses to plaintiff's foreclosure complaint and claimed that they had been lulled into believing plaintiff would extend the due date on the note. Defendants further asserted that the motion for possession failed to allege any “equitable grounds or detrimental prejudice” which would entitle plaintiff to possession and that the parties’ stipulation adequately protected plaintiff’s interest. Defendants concluded that plaintiff was estopped from pursuing possession of the mortgaged premises.

Shortly after filing their objections, defendants answered the complaint and denied that plaintiff was entitled to foreclosure because defendants were not in default. In support of this claim, defendants contended that plaintiff had failed to credit to their account certain letters of credit and monetary reserves. By way of affirmative defenses, defendants alleged that plaintiff unreasonably had withheld its approval of certain new leases and had approved of other leases with improper rental abatement provisions, thus breaching certain fiduciary obligations to defendants and attempting to foreclose on defendants with unclean hands. Additionally, defendants reiterated their previously asserted estoppel claim.

The trial court granted plaintiff’s motion for possession, and defendants timely moved for reconsideration; in the alternative, defendants requested the trial court to clarify its order and to stay the order pending appeal. Following lengthy oral argument by the parties’ counsel, the trial court denied defendants’ motion to vacate and the motion to stay. In clarification of its earlier order, the trial court stated that it found plaintiff- entitled to possession of the premises pursuant to the mortgage documents. The trial court also stated that it was satisfied there was a reasonable probability that plaintiff would prevail on the merits of the foreclosure complaint based on the information contained in plaintiff’s affidavit.

The court further clarified its order granting plaintiff possession as follows:

“[T]he defendants!’] reliance upon the stipulation and agreed order *** in attempt to show good cause why mortgagor shall remain in possession is misplaced, as said stipulation and order do not preclude plaintiff from seeking possession (order at paragraph 10), nor can defendants rely upon their unverified answer and affirmative defenses, as the denials in said answer go only to the amount of interest and the affirmative defenses are conclusory, do not overcome the plaintiffs [sic] affidavit and with regard to the estoppel argument, [do] not set forth all of the necessary elements.”

Defendants’ timely appeal of this interlocutory order ensued. See 107 Ill. 2d R. 307(a)(4).

The sole issue on appeal is whether defendants demonstrated good cause pursuant to section 15 — 1701(b)(2) of the Act, thus precluding the trial court from placing plaintiff as mortgagee in possession. We believe this matter presents a case of first impression in Illinois.

The Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1987, pars. 15 — 1101 through 15 — 1706), which became effective July 1, 1987, represents the legislature’s attempt “to integrate into one single legislative enactment the numerous foreclosure provisions previously covered by separate statutes and various articles of the Code of Civil Procedure.” (F. Bernard & G. Thorpe, Recent Illinois Mortgage Law Changes Affecting Commercial Mortgage Lending, 76 Ill. B.J. 606, 606 (1988).) Section 15 — 1701 of the Act specifically pertains to the right to possession during foreclosure (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1701), a subject which was previously addressed as the right of “possession of realty after default” (see Ill. Rev. Stat. 1985, ch. 110, par. 15 — 301 et seq.; Ill. Rev. Stat. 1979, ch. 95, par. 22b.51 et seq.).

Section 15 — 1701(b)(2) of the Act provides that in foreclosure matters concerning other than residential real estate, a mortgagee is entitled to be placed in possession of the property prior to the entry of a judgment of foreclosure upon request, provided that the mortgagee shows: (1) that the mortgage documents authorize such possession; and (2) that “there is a reasonable probability that the mortgagee will prevail on a final hearing of the cause.” (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1701(bX2).) In order to retain possession of such nonresidential real estate, a mortgagor must object to the mortgagee’s request and demonstrate “good cause.” Ill. Rev. Stat. 1987, ch. 110, par. 15-1701(b)(2).

By contrast, section 15 — 1701(bXl) provides the mortgagor of residential real estate with undisturbed possession absent the mortgagee’s objection and showing of good cause. (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1701(b)(1).) Our research has failed to reveal case law interpreting and applying these two sections, but their difference is clear: the presumptive right to possession during foreclosure lies with the mortgagor of residential real estate and with the mortgagee of nonresidential real estate.

In the instant cause, defendants are the mortgagors of nonresidential real estate; thus, they are obliged to overcome the statutory presumption in favor of plaintiff, the mortgagee, if they are to retain possession of the mortgaged premises. The trial court found that defendants had failed to sustain their burden in this regard. We agree.

Defendants contend that they demonstrated the statutorily required good cause before the trial court because plaintiff failed to allege that defendants had committed any fraud, mismanagement, waste or other dissipation of the mortgaged real estate. This contention is nothing more than defendants’ attempt to shift the burden of making a good cause showing onto plaintiff. Defendants appear to be confusing section 15 — 1701(b)(2) with section 15 — 1701(b)(1), which does expressly require the mortgagee of residential real estate to show good cause in order to overcome the residential mortgagor’s presumptive right to possession. As we have already noted, section 15 — 1701(b)(2) does not afford the nonresidential mortgagor this protection. Thus, we determine that the instant plaintiff, a nonresidential mortgagee, had no obligation to allege misdeeds or omissions on the part of the mortgagors in order to be placed in possession.

Defendants further contend that the parties’ stipulation afforded adequate protection to plaintiff’s interest in the mortgaged premises. Additionally, defendants allege that they were living up to their end of the bargain by abiding by the terms of this stipulation. These factors, defendants maintain, constitute good cause entitling them to retain possession of the property. These assertions are unavailing for several reasons, the first and most significant being the undisputed fact that the stipulation and the agreed order which incorporated its terms expressly stated:

“Nothing herein *** shall constitute a waiver of any rights by any of the parties, including, without limitation, Travelers’ right to proceed with foreclosure of the Property, its right to seek the appointment of a receiver or to be made a mortgagee in possession.”

Additionally, whether the mortgagee is “adequately protected” is not a relevant consideration under the statute. Section 15 — 1701(b)(2) does not limit a mortgagee’s right to possession in such a manner. Likewise, the fact that defendants were abiding by the terms of an agreement to which they had voluntarily submitted is of no consequence.

On a different tack, defendants assert that the trial court erroneously concluded that plaintiff had a reasonable probability of prevailing on its foreclosure complaint. Defendants rely upon the denials contained in their answer and their numerous affirmative defenses. In this regard defendants cite First Federal Savings & Loan Association v. National Boulevard Bank (1982), 104 Ill. App. 3d 1061. In First Federal, the mortgagee sought to foreclose on the defendants’ property. The defendants filed answers and affirmative defenses, in-eluding breach of contract and fiduciary obligations, fraud and unclean hands. The mortgagee did not reply to these defenses but sought possession.

On appeal, the appellate court affirmed the trial court’s judgment, reasoning that, since the mortgagee had failed to reply to the defendants’ affirmative defenses and had not challenged their sufficiency, the defenses stood admitted. Thus, the mortgagee had failed to show that there existed a probability it would prevail in a final hearing on its foreclosure complaint, and such a showing was a statutory requirement to support its application for possession (see Ill. Rev. Stat. 1979, ch. 95, par. 22b.55). First Federal, 104 Ill. App. 3d at 1063.

In the instant matter, at the time defendants filed their brief with this court, plaintiff had not yet responded to defendants’ affirmative defenses. Thus, defendants contend that their defenses must be deemed admitted. We note, however, that plaintiff sought and received leave to file its reply with the trial court one week later. Both sides accuse the other of failing to comply with various sections of the Code of Civil Procedure with regard to the filing of defendants’ answer and affirmative defenses and plaintiff’s reply. Without denigrating the importance of such compliance, we decline to address these subsidiary arguments because they are not material to the issue at hand.

Defendants’ several affirmative defenses include: plaintiff had an obligation to timely approve new leases and improperly withheld such approval to defendants’ damage and in breach of certain unspecified fiduciary obligations of plaintiff; plaintiff lulled defendant into a false belief that it would extend the due date on the note and is now estopped from foreclosing on defendant; plaintiff withheld certain unspecified monetary reserves which should have been credited to defendants’ account; and plaintiff approved certain unspecified tenant leases which contained improper rental abatement provisions. In response to defendants’ contention that these affirmative defenses must be admitted, we can only observe that the trial court already fully and concisely addressed these defenses and found them wanting. At the risk of redundancy, we again set forth the trial court’s findings in this regard:

“[N]or can defendants rely upon their unverified answer and affirmative defenses, as the denials in said answer go only to the amount of interest and the affirmative defenses are conclusory, do not overcome the plaintiffs [sic] affidavit and with regard to the estoppel argument, [do] not set forth all the necessary elements.”

We concur in the trial court’s assessment.

In conclusion, we determine that plaintiff, the mortgagee of nonresidential real estate, duly satisfied the two statutory requirements entitling it to be placed in possession of the mortgaged premises: (1) plaintiff submitted to the trial court a copy of the mortgage which authorized such possession; and (2) plaintiff’s foreclosure complaint and affidavit satisfied the trial court that there is a reasonable probability that plaintiff will prevail on its foreclosure complaint. We further determine that defendants failed to demonstrate good cause and overcome the statutory presumption in favor of plaintiff to possession of the mortgaged premises.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

REINHARD and INGLIS, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS,, Plaintiff-Appellee, v. ROBERT PRUSAK, Defendant-Appellant.
    Second District
    No. 2—88—1234
    Opinion filed July 27, 1990.

      G. Joseph Weller, Beth Katz, and Robert C. Cooper, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel A. Fish, State’s Attorney, of Dixon, and Richard E. Zulkey, of Zulkey, Pikarski & Gordon, Chartered, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Robert Prusak, appeals from a circuit court order revoking his probation and sentencing him to a five-year term of imprisonment. Prusak argues that the court erred in determining that he violated the terms of his probation and the five-year term of imprisonment is excessive. We reverse and remand.

On October 28, 1986, Prusak pleaded guilty to one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(b)). This charge was based on allegations that Prusak knowingly fondled his daughter’s breasts. The court sentenced Prusak to a three-year term of probation. As a condition of his probation, the court ordered that Prusak “shall seek psychiatric evaluation in Sinnissippi Mental Health Center and shall cooperate with any treatment and recommendation made by that agency.”

Shortly after his guilty plea, Prusak was evaluated by Robert Riley, the clinical supervisor of the center. Riley recommended that Prusak attend weekly meetings of the center’s sexual offenders group. Prusak attended these meetings regularly until April 1987. At that time, Prusak was asked to leave the group due to his continued persistence that he did not remember having any inappropriate sexual contact with his daughter.

On May 21, 1987, the State filed a petition for revocation of Prusak’s probation. The State alleged that Prusak failed to satisfy a condition of his probation because he was “discontinued from services at Sinnissippi Mental Health Center due to his lack of cooperation.” On June 4, 1987, Prusak denied the allegations in the petition and requested additional time to arrange alternative treatment at another facility. The court granted Prusak’s request for a continuance. On July 1, the court again granted Prusak a continuance so he could undergo epilepsy treatment studies. On March 4, 1988, Prusak’s counsel advised the court that Prusak also suffered from alcohol-related problems and had agreed to enroll in an appropriate program at the center. The State did not object to continuing the matter so long as the status of Prusak’s treatment was reviewed within 90 days to determine if he was “desirous of participating.” The State also informed the court that Prusak was complying with the other conditions imposed upon his probation.

On October 31, 1988, a hearing was held on the petition to revoke Prusak’s probation. The court heard testimony from Robert Riley. Riley testified that he asked Prusak to leave the sexual offenders group in April 1987 due to Prusak’s denial of “any specific memory of any contact for the purposes of sexual arousal.” Riley stated that this memory lapse affected Prusak’s treatment because “we cannot treat a person very long for a problem he denies having.” However, Riley did state that denial is “almost universal” amongst persons accused of sexual offenses. Riley also confirmed that Prusak had mental problems relating to trauma, alcohol abuse and past sexual abuse. Riley testified that Prusak was taking dilantin and phenobarbital during the time he was attending the group sessions and these drugs could have affected Prusak’s memory functions.

Additionally, Riley testified that Prusak’s presence in the group “became somewhat disruptive to the group because he was the only person in the group who persistently maintained his innocence of sexual misconduct for such an extended period of time.” However, Riley did state that he did not believe Prusak was making a conscious effort to be disruptive. Riley also stated that Prusak did everything that was required of him in the group sessions other than “accept responsibility for his sexual misconduct.” Prusak did, however, relate to the group particular incidents of physical contact with his daughter that Prusak thought his daughter may have misconstrued.

The court revoked Prusak’s probation stating, “The defendant has, maybe has followed the letter of the order but certainly not the spirit of the order of probation.” The court then set the matter for a sentencing hearing and stated, “People tell me that you have reports from various hospitals, etc. I want to see all of those reports.” The court also required Prusak to submit to a mental and physical examination.

During the sentencing hearing, the court noted that there was a credibility problem regarding Prusak’s loss of memory. The court concluded that “the defendant is a manipulator. *** Mr. Prusak, its [sic] the finding of this court that you are a manipulator, that you are not telling the truth and that you are a sexual deviate.” The court then sentenced Prusak to a term of five years’ imprisonment. Prusak appeals from the orders revoking his probation and sentencing him to a five-year term of imprisonment.

In a probation revocation proceeding the State must establish that the defendant violated a condition of his probation by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4(c); People v. Crowell (1973), 53 Ill. 2d 447, 451; People v. Salamon (1984), 126 Ill. App. 3d 1066, 1070.) The determination to terminate probation rests within the discretion of the trial court, and, absent a showing that the court’s determination was against the manifest weight of the evidence, this court will not disturb the trial court’s ruling. (Salamon, 126 Ill. App. 3d at 1070.) The decision to terminate probation is not per se against the manifest weight of the evidence simply because there is a conflict in the evidence. (Salamon, 126 Ill. App. 3d at 1070.) We find that the trial court’s determination that Prusak violated a condition of his probation was against the manifest weight of the evidence.

The facts in this case are not in dispute, and there is no conflict in the evidence. The trial court admitted that Prusak “followed the letter of the order.” However, the court found that Prusak did not follow “the spirit of the order of probation.” The State has not cited, nor has this court found, any precedent that affirms the revocation of probation when the conditions imposed have been fully performed, but the “spirit” of the order has not been complied with.

The condition placed on Prusak’s probation required him to seek treatment and “cooperate with any treatment and recommendation made by [the Center].” It is clear that Prusak submitted to an evaluation at the center. As a result of this examination, a treatment program was established pursuant to which Prusak was to attend weekly group counseling sessions. Riley testified that Prusak attended each and every counseling session required of him. Riley also testified that Prusak did everything that was required of him in the counseling sessions. The only thing that Prusak did not do was accept responsibility for his sexual misconduct. However, Riley stated that denial is “almost universal” amongst sex offenders. It appears that Prusak was simply exhibiting a common behavior of persons convicted of sexual misconduct. It seems paradoxical to classify an individual as a sex offender and sentence him to probation and then revoke his probation because he exhibits behavior commonly displayed by sex offenders.

This decision becomes more troubling when Prusak’s physical and mental condition is taken into consideration. While it is true that even insanity is not a defense to a petition for revocation (see People v. Allegri (1985), 109 Ill. 2d 309, 317), the mental condition of the defendant is a factor to be considered in a revocation proceeding. (See People v. Welch (1979), 78 Ill. App. 3d 184.) The record indicates that Prusak does suffer from physical ailments that affect his mental abilities, including his ability to remember clearly. By denying any memory of the sexual misconduct for which he was convicted, he is again only exhibiting conduct expected from a person in his condition.

Approximately one week after Prusak was dismissed from the group, Riley wrote a letter to Prusak’s probation officer stating:

“Before any more specific recommendations can be made, I believe that Robert needs to be referred to a medical facility for an exhaustive neurological and medical examination to determine if there is any medical condition present which could account for his impulsive behavior and extensive periods of (claimed) memory loss. Until said evaluation is completed, I do not believe that it is safe to the children now in the household for Robert to be living with them. Regardless of the outcome of such an evaluation, Robert has shown that he will not benefit from outpatient sexual offender services.” (Emphasis added.)

Simply because Prusak did not benefit from fulfilling the condition imposed upon his probation does not mean that he did not satisfy the condition. The trial court improperly interpreted the condition of probation to mean that not only did Prusak have to undergo treatment, but he was also required to be “cured.”

For the reasons set forth above, we find that Prusak did not violate the conditions imposed upon his probation. Therefore, the order of the circuit court of Lee County revoking Prusak’s probation and sentencing him-to a five-year term of imprisonment is reversed. This case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

INGLIS and REINHARD, JJ., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    OFFICE OF THE LAKE COUNTY STATE’S ATTORNEY, Plaintiff-Appellant, v. THE ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellees.
    Second District
    No. 2—89—1000
    Opinion filed July 26, 1990.

      Fred L. Foreman, State’s Attorney, of Waukegan (John W. Bartels IV, Assistant State’s Attorney, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield, and Office of the General Counsel, Illinois Human Rights Commission, of Chicago (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee Illinois Human Rights Commission.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, the office of the Lake County State’s Attorney (the State’s Attorney), appeals the dismissal of its complaint for an order of prohibition and declaratory judgment against the defendants, the Illinois Human Rights Commission (the Commission) and former Lake County Assistant State’s Attorney Marian McElroy (McElroy).

McElroy was suspended from her job as an assistant State’s Attorney in Lake County in December 1985 and was discharged on January 3, 1986. On December 18, 1985, McElroy filed a discrimination charge against the State’s Attorney with the Department of Human Rights (the Department). The State’s Attorney’s motion to dismiss McElroy’s complaint for lack of jurisdiction was denied by the Department.

The Department later found insufficient evidence of discrimination and dismissed the charge. McElroy’s motion to reconsider was granted, however, and, in October 1988, the Department filed a complaint against the State’s Attorney with the Commission charging that the State’s Attorney discriminated against McElroy and suspended and discharged her in violation of the Illinois Human Rights Act (the Act) (Ill. Rev. Stat. 1987, ch. 68, par. 1—101 et seq.).

The complaint alleged McElroy was being discriminated against because of her race and sex. It charged she was not given the same number of trial opportunities as similarly situated white male employees; that the State’s Attorney informed her that she “was not fitting in with the boys because she did not go out drinking with the boys and that she was not bubbly like another black female attorney”; and that she was not promoted to the position of principal assistant State’s Attorney because of her lack of experience. The complaint further charged that the State’s Attorney’s stated reason for suspending McElroy was because she ignored the policies and objectives of the office in negotiating criminal cases and for being insubordinate to her supervisor.

On December 28, 1988, the State’s Attorney filed the instant complaint in the circuit court of Lake County for an order of prohibition and declaratory judgment against the Commission and McElroy. The complaint alleged that the Commission and its hearing officer were without jurisdiction and beyond their legitimate authority to adjudicate the allegations of the complaint filed by the Department setting forth McElroy’s grievance. It prayed for an order of prohibition commanding the Commission to refrain and desist in any further proceedings with regard to the Department’s complaint and for issuance of an order to show cause why an order of prohibition should not be issued against the Commission. The State’s Attorney’s complaint further asked for a declaration that assistant State’s Attorneys are not “employees” and that the office of the Lake County State’s Attorney is not an “employer” or “person” as defined in the Act.

The State’s Attorney also filed a motion to dismiss with the Commission on December 31, 1988, claiming the Commission had no jurisdiction over the complaint filed by the Department. As far as may be determined from the record before us, proceedings before the Commission were not stayed pending the instant cause.

In response to the State’s Attorney’s instant complaint for an order of prohibition and declaratory judgment, the Commission, represented by the Attorney General’s office, filed a motion to dismiss for lack of jurisdiction pursuant to section 2 — 619 of the Civil Practice Law, and McElroy adopted this motion as her own as well. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(1).) The trial court granted the defendants’ motions to dismiss. It found the Human Rights Act was the exclusive remedy for alleged human rights violations and that the State’s Attorney must first exhaust the available administrative remedies. The court struck and dismissed the State’s Attorney’s complaint, and this appeal followed.

The State’s Attorney argues the trial court was vested with juris-, diction to consider the scope of the Commission’s authority and that it erred in dismissing the complaint for an order of prohibition and declaratory judgment. He also argues the merits of the question of whether the Commission has jurisdiction to adjudicate McElroy’s charges and concludes that it does not based (1) on public policy grounds which mandate that he be allowed to implement his unique discretionary prosecutorial policies through assistants who are absolutely loyal to the broad objectives chosen by him; and (2) on the fact that assistant State’s Attorneys are not “employees” and that he is not an “employer” or “person” as those terms are defined in the Act (Ill. Rev. Stat. 1987, ch. 68, pars. 2—101(A), (B), 1—103(B)).

McElroy argues the Commission has jurisdiction to adjudicate her discrimination complaint because the State’s Attorney — having prosecutorial powers and being part of the executive branch of the State of Illinois government — is an “employer” -within the meaning of the Act and that she — not being a supervisor or deputy interfacing directly with the State’s Attorney — is not a member of an elected public official’s “immediate personal staff” and, thus, is an “employee” included within the Act’s protection. McElroy also argues the trial court did not err in granting her motion to dismiss because the State’s Attorney did not exhaust his administrative remedies and, further, no order of prohibition could issue because the Commission is not of “inferior” jurisdiction to the circuit court.

The Commission argues the trial court’s dismissal was proper since exclusive jurisdiction of civil rights violations is vested in the Department and the Commission which are charged with the administration of the Act, the exclusive remedy for such violations, and because the State’s Attorney failed to exhaust his administrative remedies.

For the reasons stated below, we find the trial court erred in dismissing the State’s Attorney’s complaint for an order of prohibition and declaratory judgment.

The defendants’ motions to dismiss were filed pursuant to section 2 — 619 of the Civil Practice Law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(1).) Such a motion alleges that the court does not have jurisdiction over the subject matter of the action. “Subject matter jurisdiction” is the power to hear and determine causes of the general class of cases to which the particular case belongs. (Newkirk v. Bigard (1985), 109 Ill. 2d 28.) The subject matter of the action raised by the State’s Attorney’s complaint for an order of prohibition and declaratory judgment was whether the Commission has authority to adjudicate McElroy’s complaint of discrimination against him. Integral to deciding that issue was a determination of whether the State’s Attorney is an “employer” or “person” and whether McElroy is an “employee” within the meaning of the Act. (Ill. Rev. Stat. 1987, ch. 68, pars. 2—101(B), 1—103(B), 2—101(A).) The trial court dismissed the complaint on the basis it had no jurisdiction to decide a cause which involved employment discrimination and that the State’s Attorney must first exhaust his administrative remedies. Inasmuch as the trial court dismissed the cause on that basis, it did not reach the merits of the issue of whether the State’s Attorney and McElroy fall within the definitions of either “employer,” “person” or “employee” as set forth in the Act.

The sole issue raised in this appeal is whether the circuit court erred in dismissing — thereby effectively denying — the State’s Attorney’s complaint for an order of prohibition and declaratory judgment.

Preliminarily, we note that the purpose of a writ of prohibition is to prevent judicial or quasi-judicial action that would be taken without jurisdiction or that would be beyond the scope of legitimate jurisdictional authority. (People ex rel. Foreman v. Nash (1987), 118 Ill. 2d 90, 97.) The requirements to be met before a writ of prohibition will be issued were recently set forth in Orenic v. Illinois State Labor Relations Board (1989), 127 Ill. 2d 453, 468, to wit:

“For a writ of prohibition to be issued, the action to be prohibited must be judicial or quasi-judicial in nature; the jurisdiction of the tribunal against which the writ is sought must be inferior to that of the issuing court; the action to be prohibited must be either outside the tribunal’s jurisdiction or, if within its jurisdiction, beyond its legitimate authority; and the petitioner must be without any other adequate remedy.”

As to declaratory judgmént, such a proceeding may be employed alone or in combination with other remedies to determine questions as to the construction or interpretation of statutes and is an appropriate method for determining controversies relating to such construction (Ill. Rev. Stat. 1987, ch. 110, par. 2—701(a); Farm to Market Truckers Association, Inc. v. Perrine (1959), 21 Ill. App. 2d 118 (abstract of opinion)). The declaratory judgment procedure does not create substantive rights or duties but merely affords a new, additional, and cumulative procedural method for their judicial determination. The existence of another adequate remedy is a bar to a declaratory judgment action. (Goodyear Tire & Rubber Co. v. Tierney (1952), 411 Ill. 421.) Original jurisdiction for declaratory judgment proceedings lies in the circuit court (Charleston National Bank v. Muller (1974), 16 Ill. App. 3d 380) as does original jurisdiction under the constitution (concurrently with the supreme court) to issue writs of prohibition in a proper case. Ill. Const. 1970, art. VI, §§4, 9; People ex rel. Sokoll v. Municipal Court (1934), 276 Ill. App. 102, 117, aff’d (1934), 359 Ill. 102.

Generally, of course, it is well established that administrative remedies must first be exhausted before equitable relief is sought from the courts. (Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 308; Newkirk v. Bigard (1985), 109 Ill. 2d 28, 35.) The reasoning underlying the exhaustion doctrine was articulated in Illi nois Bell Telephone Co. v. Allphin (1975), 60 Ill. 2d 350, 358:

“(1) [I]t allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary.”

It is equally well established that “[a]ny power or authority claimed by an administrative agency must find its source within the provisions of the statute by which the agency was created.” (Mitee Racers, Inc. v. Carnival-Amusement Safety Board (1987), 152 Ill. App. 3d 812, 816.) Where the very authority of an administrative body is in question, a question of law, not fact, is presented, and the determination of the scope of its power and authority is a judicial function and is not a question to be finally determined by the administrative agency itself. (Mitee Racers, Inc., 152 Ill. App. 3d at 816; Chemetco, Inc. v. Pollution Control Board (1986), 140 Ill. App. 3d 283.) As noted in People ex rel. Thompson v. Property Tax Appeal Board (1974), 22 Ill. App. 3d 316, 321, an administrative agency often does determine the scope of its own jurisdiction; when an agency acts or refuses to act in a case, it necessarily determines whether the subject matter and its activity are or are not within the purview of the statute creating the agency.

The exhaustion of remedies doctrine does not preclude a challenge to the jurisdiction of the administrative agency, however. (Board of Education of Warren Township High School District 121 v. Warren Township High School Federation of Teachers, Local 504 (1989), 128 Ill. 2d 155, 163-64.) This is because such a determination involves no questions of fact which would implicate the agency’s particular expertise. (Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 550-51.) The exhaustion of administrative remedies is not required where a party attacks an agency’s assertion of jurisdiction “on its face and in its entirety on the ground that it is not authorized by statute.” Landfill, Inc., 74 Ill. 2d at 551.

The issue raised by the State's Attorney with respect to whether he is an “employer” or “person” or whether McElroy is an “employee” as defined in the Act presents just such an attack on the Commission’s jurisdiction, and, consequently, he was not required to exhaust his administrative remedies before seeking relief in the circuit court. (County of Kane v. Carlson (1986), 140 Ill. App. 3d 814, 816, affd (1987), 116 Ill. 2d 186 (issue of whether deputy circuit clerks are “public employees” under the Public Labor Relations Act is an attack on the Illinois State Labor Relations Board’s jurisdiction which comes within the exception to the exhaustion doctrine).) The questions presented by the State’s Attorney’s attack on the jurisdiction of the Commission here are “entirely legal and do not require fact finding by the administrative agency or an application of its particular expertise.” County of Kane, 116 Ill. 2d at 199.

The exhaustion doctrine did not preclude the circuit court’s jurisdiction to consider the State’s Attorney’s complaint because the State’s Attorney was not seeking review of any decision made by the Commission, nor was it seeking to circumvent the Act — which is the exclusive source of redress for alleged human rights violations (Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, 7) — by having the circuit court actually adjudicate McElroy’s complaint of discrimination. Rather, he was challenging the jurisdiction of the Commission to adjudicate it. The State’s Attorney need not first subject himself to an exercise of jurisdiction of the Commission, which is not authorized by law simply to obtain a decision from which he could seek rehearing en bloc and, ultimately, appeal. (People ex rel. Sokoll v. Municipal Court (1934), 276 Ill. App. 102, 120.) “[W]here the remedy of administrative and judicial review would come only after a hearing which the [administrative agency] has no jurisdiction to hold, it can be said that, as a matter of law, [the plaintiff has no other adequate remedy than the writ of prohibition.” People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 1112.

As the State’s Attorney points out, a writ of prohibition is tailor-made to challenge and prevent an inferior tribunal from adjudicating matters which are either not under its jurisdiction or, if within its jurisdiction, beyond its legitimate authority. Such a writ was ordered to be entered in Board of Trustees of the Police Pension Fund v. Illinois Human Rights Comm’n (1986), 141 Ill. App. 3d 447 (Urbana). In Urbana, the complainant policeman, a diabetic, filed a charge of handicap discrimination with the Commission after his application for participation in the police pension fund of the City of Urbana was denied. The police pension board moved to dismiss, alleging the Commission did not have authority to decide the issue. After the Commission denied the board’s motion to dismiss, the board filed a complaint in the circuit court seeking an order of prohibition to prevent the Commission from proceeding on the discrimination complaint. Oh appeal, the circuit court’s dismissal of the complaint for failure to state a cause of action (Ill. Rev. Stat. 1987, ch. 110, par. 2—615) was reversed and the cause was remanded with directions to enter an order of prohibition.

Noting that the Commission generally had subject matter jurisdiction over the handicap discrimination complaint under the Act, the reviewing court found an exception to the Commission’s exclusive jurisdiction over the alleged discrimination was “otherwise provided by law” in the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 1—101 et seq), and, thus, adjudication of the complainant’s discrimination claim was beyond the Commission’s legitimate jurisdictional authority. The Illinois Pension Code gave the police pension board the exclusive power and duty to manage the pension fund. That exclusive power necessarily required it to consider an applicant’s medical condition since an application to participate in the fund could be denied due to an applicant’s medical problems. The court agreed that an order of prohibition is available to prevent action by an agency with regard to a topic or a subject matter regarding which the legislature has vested exclusive authority in another tribunal. Urbana, 141 Ill. App. 3d at 453.

As the Commission here points out, the exception to the Act’s exclusivity which was carved out in Urbana has been construed to be a narrow one. (See Village of Bellwood Board of Fire & Police Commissioners v. Human Rights Comm’n (1989), 184 Ill. App. 3d 339, 347.) We reject the Commission’s attempt to distinguish Urbana, however, on the basis there was another agency vested with jurisdiction over the handicap discrimination complaint there whereas the State’s Attorney’s position here is that he is simply not subject to the provisions of the Act. Clearly, a writ of prohibition is at least as available, if not more so, to prevent action by an agency with regard to a subject matter over which the legislature has not vested jurisdiction in it at all much less vested jurisdiction in another agency. Although it is yet to be determined on remand whether McElroy may obtain redress under the Act, if the Act is found not to apply, we note it has been held that the Act does not preempt discrimination claims filed directly under article I, section 17, of the Illinois Constitution (no discrimination in employment on basis of race, color, creed, national ancestry and sex) where the claim does not otherwise fall within the purview of the Act. Ill. Const. 1970, art. I, §17; Ritzheimer v. Insurance Counselors, Inc. (1988), 173 Ill. App. 3d 953.

In sum, we conclude the circuit court of Lake County had subject matter jurisdiction to consider the State’s Attorney’s complaint for an order of prohibition and declaratory judgment. Accordingly, the judgment of the circuit court of Lake County is reversed, and the cause is remanded to the circuit court of Lake County for further proceedings.

Reversed and remanded.

DUNN and McLAREN, JJ., concur.


author: JUSTICE GEIGER

text:
      In re HORACE WALKER (The People of the State of Illinois, Petitioner-Appellee, v. Horace Walker, Respondent-Appellant).
    Second District
    No. 2—89—1078
    Opinion filed July 27, 1990.

      William E. Coffin, of Guardianship & Advocacy Commission, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The respondent, Horace Walker, appeals from the court’s order involuntarily admitting him to the Illinois Department of Mental Health (the Department). We reverse on procedural grounds.

On August 11, 1989, the court entered an order to admit involuntarily the respondent to the Department. That order did not specify the period for which the respondent was to remain involuntarily admitted. On October 10, 1989, the State filed a petition for continued hospitalization, together with supporting physicians’ certificates.

Following a bench trial on the latter petition, on October 13, 1989, the court found and ordered that the respondent should remain involuntarily hospitalized in the Department. The respondent brought this appeal, arguing, among other things, that his involuntary admission must be reversed since the prior commitment order had expired before the State filed its petition for continued commitment.

Section 3 — 813(a) of the Mental Health and Developmental Disabilities Code is the focus of our analysis. It provides as follows:

“An initial order for hospitalization or alternative treatment shall be for a period not to exceed 60 days. Prior to the expiration of the initial order if the facility director believes that the patient continues to be subject to involuntary admission, a new petition and 2 new certificates may be filed with the court. *** If no petition is filed prior to the expiration of the initial order, the patient shall be discharged.” Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a).

The parties here disagree only on the proper method of calculation of the maximum 60-day period during which the State could have properly filed to extend the initial commitment order. The State argues that the day following the day of entry of the involuntary commitment order should be counted as the first day of the period. They rely on section 1.11 of the Statute on Statutes, which states that “[t]he time within which any act provided by law is to be done shall be computed by excluding the first day and including the last” (Ill. Rev. Stat. 1989, ch. 1, par. 1012).

The respondent argues that the day the order was entered should be counted as the first day of the 60-day period. He emphasizes that his continuous involuntary detention under the order began on that day. The parties agree that using the respondent’s method of computation, the sixtieth day of the prior involuntary commitment period was October 9, the day before the State’s filing.

We are aware of no authority holding the Statute on Statutes applicable to calculation of the time available for filing a petition to extend involuntary commitment. Neither are we aware of its application under analogous circumstances. Further, we note , that the statute is inapplicable in some other instances, for example in calculating the number of days of custody for which a criminal is entitled to credit. See People v. Williams (1986), 144 Ill. App. 3d 994, 996.

In considering the parties’ arguments, we first note that the language of section 3 — 813 does not track the language of the Statute on Statutes. It does not provide that the State must act, i.e., file its petition, within a given number of days of the entry of the prior order. Rather, it provides that the State must file its new petition “[p]rior to the expiration of the initial order.” (Ill. Rev. Stat. 1989, ch. 91½, par. 3—813(a).) Further, section 3—813 defines the maximum period of validity of an involuntary commitment order in terms of the number of days of “hospitalization or alternative treatment” for which it is issued. Ill. Rev. Stat. 1987, ch. 91½, par. 3—813(a).

Besides considering the particular language of section 3—813 (see Hoffman v. Board of Fire & Police Commissioners (1988), 175 Ill. App. 3d 219, 224-25), we also consider the nature of the liberty interest which is at issue here (cf. People v. Richardson (1975), 32 Ill. App. 3d 621, 625). We find that as regards the calculation of valid detention periods, a person placed for a determinate period under an order of involuntary admission is situated comparably to a person in custody for a criminal conviction. Both persons are involuntarily confined under the authority of a court order, and there is an important liberty interest at issue. See In re Stone (1989), 178 Ill. App. 3d 1084, 1086.

In calculating a criminal defendant’s time served, the defendant is afforded a day of sentence credit for each partial day during which he is in custody. (Williams, 144 Ill. App. 3d at 996.) As analogously important liberty interests are at stake in involuntary commitment cases, we find that any partial day during which a person is deprived of his liberty by an order for involuntary commitment must also be included in the relevant calculation under section 3 — 813. Even the State, in oral argument, has properly acknowledged the inequity of a system which would calculate a term of involuntary admission without including the first day of confinement.

In summary, as section 3—813 is designed around the length of the prior admission order’s validity and not necessarily the length of the period following the entry of the order, and, considering the nature of the liberty interest of concern here, we find that the State’s reliance on the Statute on Statutes is misplaced. See also People v. Coffin (1917), 279 Ill. 401, 408-09; In re Hatala (1990), 200 Ill. App. 3d 163.

The respondent’s prior involuntary admission order was entered on August 11, 1989. Pursuant to that order the respondent was involuntarily admitted and detained continuously beginning on that same day. Thus, we count August 11 as the first day of the maximum 60-day period of valid detention under the order. The order consequently expired prior to any filing for an extended period of involuntary commitment, i.e., on October 9, the sixtieth day of the respondent’s detention under the order.

Involuntary commitment proceedings affect important liberty interests; thus, the need for strict compliance with statutory procedures is essential. (Stone, 178 Ill. App. 3d at 1086.) When the State failed to file for extended involuntary commitment until after the prior order expired, the respondent was entitled to be discharged. (See In re Bloyer (1989), 185 Ill. App. 3d 245, 247.) In light of our decision on this issue, we need not consider the remainder of the respondent’s arguments.

Based on the foregoing, we reverse the judgment of the circuit court of Kane County as it relates to the respondent’s involuntary admission pursuant to the October 13,1989, order.

Reversed.

DUNN and REINHARD, JJ., concur.