author: JUSTICE McLAREN

text:
    FIRST NATIONAL BANK OF ELGIN, as Trustee, Petitioner-Appellee, v. WEST AURORA SCHOOL DISTRICT 129, Respondent-Appellant (Regional Board of School Trustees, Kane County, Respondent).
    Second District
    No. 2—89—1213
    Opinion filed July 27, 1990.

      Donald Liest, Assistant State’s Attorney, of Geneva, Gary K. Mickey, of Puckett, Barnett, Larson, Mickey, Wilson & Ochsen, and Larson, Mickey & Weiler, P.C., both of Aurora (Bernard K. Weiler and Constance B. Renzi, of counsel), for appellant.
    McGrath & McGrath, of Wheaton (William R. McGrath, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, owner in trust of a large tract of land, filed a petition with the Regional Board of School Trustees of the Kane County Educational Service Region (Regional Board) seeking to detach its property from West Aurora School District 129 (West Aurora) and to annex the property to Batavia School District 101 (Batavia). The West Aurora Board of Education opposed the detachment. The Regional Board conducted a hearing and denied the petition. Petitioner then appealed to the circuit court of Kane County for administrative review. The circuit court found that the findings and decision of the Regional Board were against the manifest weight of the evidence and reversed the decision of the Regional Board. West Aurora now appeals the decision of the circuit court. We reverse the trial court and affirm the Regional Board.

The property in question is 42 acres of a 70-acre tract of vacant farmland located in the most northeasterly corner of West Aurora’s district. The remaining 28 acres of the tract, not in issue here, are located within the boundaries of Batavia School District. The property has not been annexed to either the Village of North Aurora or the City of Batavia. However, the parties stipulated that the parcel is located within the Batavia park district, library district, and township and is serviced by the Batavia post office and fire protection district. The land is also within the facility planning area of the City of Batavia for sewer services, although no sewer work had been done as of the time of the court proceedings. Stephen Lane, one of the beneficial owners of the property, testified that, while the tract was currently vacant, the beneficial owners wished to subdivide the 70 acres. This development would include approximately 95 homesites on the 42-acre tract in question. At the hearing before the Board, no evidence of the configuration of the subdivision was introduced.

The parties stipulated to several pertinent matters, including (1) both school districts furnish quality education at all levels; (2) if detachment were granted, both districts would still meet State standards of recognition; (3) an intergovernmental agreement between Batavia District 101 and the Batavia park district existed, calling for sharing of facilities; (4) an intergovernmental agreement existed between West Aurora District 129 and the Fox Valley park district, calling for sharing of facilities; (5) distances from the property to schools in the two districts:

District 129 District 101

High School West High — 6.7 miles Batavia High — 3.1 miles

Middle School Washington — 8.1 miles Batavia Jr., High — 2.2 mi.

6th Grade Center — McWayne School — 2.3 miles

Elementary Schneider — 1.8 miles by existing roads, but parties disagree on effect of development on this distance J.B. Nelson — 1.6 miles

(6) the assessed valuation of the property was $7,857, representing .0000227 of District 129’s total assessed valuation and amounting to property taxes payable in 1988 of $301.12; and (7) if a change in boundaries was granted, both districts would have adequate populations and assessed valuations to fulfill statutory requirements.

The Board heard testimony from witnesses for both parties. Stephen Lane, one of the beneficial owners of the property, testified as to the intent to subdivide the property. In Lane’s opinion, the subdivision would be adversely affected if the property were developed in two school districts. He also stated, as part owner of the property, his personal desire to have the whole site within Batavia’s school boundaries.

John Carlson, a licensed real estate broker, also testified for petitioners. Carlson testified that houses in Batavia sold for $10,000— $15,000 more than comparable houses in North Aurora. In addition, he stated that comparable homes in North Aurora sold easier than homes in Batavia.

Dr. Keith Getschman presented expert testimony on behalf of the petitioners. Dr. Getschman opined that, if the entire 70-acre tract were to be developed as one subdivision, the best interests of future students living in the subdivision would be served by including the entire subdivision in one school district. However, he testified that the choice to develop the 70 acres as one subdivision was a choice to be made by the developer. The loss of approximately $300 in taxes to West Aurora if the boundary change were granted would be negligible, according to Getschman.

Michael Wild, an elected member of the Batavia park board, also testified for petitioner. Wild detailed the cooperation between the park district and the Batavia school district, including the sharing of facilities, equipment and instructors. Wild also testified to the proximity of school, park, and library facilities in Batavia.

West Aurora presented the testimony of Michael Pehan, assistant superintendent of business for the district. Pehan related that the future development of the property was considered when the district planned the location of the elementary school that would serve the property. Pehan also testified that, while the district was currently taxing at its maximum rate, the loss of $300 in taxes from the property would not be detrimental to the district. In addition, Pehan testified that the West Aurora district served a number of communities outside of Aurora, including North Aurora, Batavia Township and Sugar Grove Township. Pehan also related that West Aurora had an agreement with the Fox Valley park district similar to that between the Batavia school and park districts.

Dr. Robert English provided expert testimony for West Aurora. English opined that persons moving into the property in question would not have a preassociation with either Batavia or North Aurora. English also testified that, if the property were not detached, students would spend longer periods of time on buses and drive longer distances than if the parcel were detached.

Following the introduction of the evidence, the Regional Board denied the petition, finding as follows:

“1. Because there are no inhabitants on the property, it is difficult to assess the impact of this boundary change for future students.
2. It would appear from the testimony that the reason for the request for this change was a concern of the developer for higher property values rather than the welfare of the students.
3. From the testimony, there was. no clear community of interest established with either Batavia or West Aurora.
4. The West Aurora District (129) testified that the boundary change would be harmful to their planning of student growth around Schneider Elementary School, and thus harmful to the students involved.
In summary, after having heard the testimony, there seems to be no compelling evidence that the future students would benefit from these boundary changes if the board granted the petition.”

However, the court on administrative review found that there was “no question that the facts and case law support the petition to deannex [sic].” The court specifically found that dividing the subdivision between two districts would “destroy any concept of neighborhood or community” and that the lengthy travel times to the schools in West Aurora would probably decrease participation of future students from the property in school and related community activities.

“[Furthermore, the court] considered the effects that detachment would have upon the ability of both districts to meet the prescribed statutory standards, as well as the effects on tax revenues of both districts, the distances from.the subject property to schools in both districts and the identity of the petitioning territory with the district to which annexation is sought. An examination of the two primary exhibits again demonstrates that the subject property is clearly more closely identified with the City of Batavia than with the City of Aurora or even with North Aurora. There are no direct road connections between the subject property and the City of North Aurora. Large vacant areas separate the eastern edge of the residential areas in North Aurora and the subject property. There is less separation from the residential areas at the south areas of Batavia and a major roadway leads directly past the subject property into the residential areas in southern Batavia.
The Court has further considered that ‘There is an advantage in having a child attend a school in close proximity to his home’ and that ‘Children learn better when they have friends in class with whom they associate outside of school.’ [Citation.] Clearly, those activities and identification can more easily take place if the subject property is a part of District 101.”

The court, therefore, reversed the Board’s decision and ordered the Board to take the steps necessary to disconnect the property from the West Aurora District and annex the property to Batavia.

The sole issue before this court is whether the Regional Board’s decision was against the manifest weight of the evidence. The role of the court on administrative review is limited to a determination that statutory standards are applied and that the decision is not against the manifest weight of the evidence. (Desmond v. Regional Board of School Trustees, Malta Community Unit School District No. 433 (1989), 183 Ill. App. 3d 316, 326.) If the evidence is conflicting but the Board’s findings are supported by evidence, the reviewing court cannot hold that the Regional Board’s decision is against the manifest weight of the evidence. Desmond, 183 Ill. App. 3d at 326.

The disconnection of property from school districts is governed by the School Code (the Act) (Ill. Rev. Stat. 1989, ch. 122, par. 1—1 et seq.). Section 7—2.6, which outlines the considerations to be made by a hearing board when evaluating a petition, states in part:

“The Hearing Board (a) shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto, and as to the ability of the districts affected to meet the standards of recognition as prescribed by the State Board of Education, (b) shall take into consideration the division of funds and assets which will result from any change of boundaries, and the will of the people of the area affected, and (c) shall determine whether it is to the best interests of the schools of the area and the educational welfare of the pupils should such change in boundaries be granted.” (Ill. Rev. Stat. 1989, ch. 122, par. 7-2.6.)

In addition, the benefit to the annexing district and the detaching area must clearly outweigh the resulting detriment to the detaching district and the surrounding community. Board of Education of Golf School District No. 67 v. Regional Board of School Trustees (1982), 89 Ill. 2d 392, 397.

The first two considerations above are not contested here; however, the best interests of the schools and the educational welfare of the pupils remain at issue. In determining educational welfare, the hearing board must consider the following factors:

“(1) the differences between the districts’ facilities; (2) the effect detachment will have on either district’s ability to meet statutory standards of recognition; (3) the effects on tax revenues; (4) the relative distances of the districts from the students’ homes; (5) identification of the detaching area with the annexing district; (6) the likelihood of child and parent participation in school activities; and (7) the convenience and personal desires of parents and children.” (Desmond, 183 Ill. App. 3d at 326-27.)

We conclude that the Board’s decision was not against the manifest weight of the evidence, and we accordingly reverse the circuit court.

Regarding the factors to be considered, we find that the evidence tends to establish: (1) the facilities of the two districts are substantially similar; (2) detachment would not affect either district’s ability to meet statutory standards of recognition; (3) the loss of $300 in taxes to North Aurora, the current taxes payable on the undeveloped property, would not affect the fiscal health of the district; (4) with the exception of the elementary schools, which are approximately the same distance from the property in question, the schools of the West Aurora district are more than twice as far from the property as the Batavia schools; (5) there is no identification of the area with one district or the other; (6) if the property is developed as one subdivision, parents and children would be more likely to participate in school activities if the property were contained within one school district; and (7) since no one currently lives on the property, convenience and the personal desires of parents and children are not a factor.

It is clear from the evidence that West Aurora would not be detrimentally affected by detachment of the property. However, proof of no detriment to the old district is insufficient to support detachment in the absence of any evidence of benefit to the new district. (Board of Education of Carrier Mills-Stonefort Community Unit School District No. 2 v. Regional Board of School Trustees (1987), 160 Ill. App. 3d 59, 64.) West Aurora maintains that the petitioners failed to demonstrate any substantial gain to anyone other than the petitioners or any educational improvement resulting from the detachment.

The only benefit to future students evident in the record is the shorter distances to be traveled if the property is detached. Evidence on all other factors is either conflicting or inconclusive as to particular benefit to future students living on the property. This one factor, while important, is only one of the several factors considered. Reduction of the distance to be traveled is not, by itself, sufficient to grant a petition for detachment. (Fixmer v. Regional Board of School Trustees (1986), 146 Ill. App. 3d 660, 665.) We cannot say that the Regional Board’s decision was against the manifest weight of the evidence when only this factor clearly stands to benefit future students. The Board must consider the “best interests” and “educational welfare” of the students. The Board is better suited to analyze and work with these concepts than the judiciary. (See Board of Trustees of Community College District No. 501 v. Illinois Community College Board (1976), 43 Ill. App. 3d 956, 962.) The evidence presented in this case does not show the benefit to the annexing district to outweigh clearly the resulting detriment to the detaching district. The Regional Board’s decision was not against the manifest weight of the evidence. The court on administrative review therefore erred in reversing the Regional Board’s decision.

We reverse the order of the circuit court of Kane County and remand the cause to that court with directions to reinstate the order of the Regional Board.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD SWEENEY, Defendant-Appellant.
    Fourth District
    No. 4—89—0876
    Opinion filed July 26, 1990.
    Daniel D. Yuhas and John J. Hanlon, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On July 6, 1989, prior to his sentencing hearing in McLean County case No. 88—CF—261 (aggravated battery), defendant pleaded guilty to the offense of criminal damage to property (Ill. Rev. Stat. 1987, ch. 38, par. 21—1). Defendant adopted a presentence investigation report (PSI) filed on April 19, 1989, and waived his right to review the report. He requested a joint sentencing hearing for the criminal damage to property conviction and the aggravated battery conviction (Ill. Rev. Stat. 1987, ch. 38, par. 12—4).

After admonishing defendant and reviewing the factual basis for the plea to criminal damage to property, the court accepted defendant’s plea. The court subsequently sentenced defendant to four years’ imprisonment for the aggravated battery conviction and a consecutive two-year term of imprisonment for the criminal damage to property conviction. The court also assessed a $100 fine. Only the criminal damage to property conviction and sentence are before this court.

Defendant appeals, arguing the trial court erred in finding criminal damage to property was a nonprobationable offense, in relying on the April 19, 1989, PSI, and that defendant is entitled to a credit against his fine.

We affirm defendant’s conviction and sentence as modified to reflect a credit toward his fine.

The facts salient to the instant cause will be briefly summarized. On March 16, 1989, defendant was convicted of committing aggravated battery of a police officer oñ May 17, 1988 (Ill. Rev. Stat. 1987, ch. 38, par. 12—4), in McLean County case No. 88—CF—261. Two days after defendant posted bond for the aggravated battery charge, he was arrested for the instant offense. The criminal damage to property offense occurred when defendant broke windows out of the victim’s mobile home and slit the tires on her automobile. Prior to accepting defendant’s guilty plea, the court advised defendant of the possible penalties for the criminal damage to property offense. Subsequently, the court learned defendant was on bond at the time he committed the offense. The court then advised defendant that his sentence would be consecutive to that imposed for the aggravated battery. Defendant persisted in his plea.

At the joint sentencing hearing, the sentencing judge noted that defendant’s remorse seemed genuine, he supported his children, and was employed. The judge stated these factors militated in favor of probation. The judge commented that this was a difficult case. However, the sentencing judge also commented that defendant had four prior felony convictions, had been placed on supervision and probation on prior occasions, and had committed the criminal damage to property offense two days after being released on bond for the aggravated battery of a police officer. The judge stated consecutive sentences were mandatory under such circumstances and consecutive probationary sentences were not permissible. The judge then sentenced defendant to a consecutive two-year term of imprisonment for the instant offense.

In his motion to withdraw his guilty plea, defendant asserted the plea was not voluntary, he was improperly admonished, and his sentence was unduly harsh.

Defendant initially argues the sentencing judge erred in interpreting sections 5—8—4(h) and 5—6—2(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—4(h), 1005—6—2(b)). Defendant also argues he should have been sentenced to a term of probation consecutive to a term of imprisonment. Defendant did not raise this issue in his motion to withdraw his guilty plea. Generally, a defendant’s failure to include an issue in his motion to withdraw a guilty plea constitutes a waiver of the issue on appeal. (People v. Davis (1988), 175 Ill. App. 3d 1006, 530 N.E.2d 601; People v. Jenkins (1986), 141 Ill. App. 3d 602, 490 N.E.2d 953.) This rule applies even when the issue to be reviewed concerns only a sentencing error. (Davis, 175 Ill. App. 3d 1006, 530 N.E.2d 601.) Defendant did not raise this issue in his motion to withdraw his guilty plea. Therefore, he has waived review of the merits of this contention.

Section 5 — 8—4(h) of the Code states:

“If a person charged with a felony commits a separate felony while on pre-trial release, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—4(h).)

Section 5—6—2(b) of the Code states:

“Multiple terms of probation imposed at the same time shall run concurrently.” Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—2(b).

Defendant committed the instant offense while he was on pretrial release in McLean County case No. 88 — CF—261. Thus, the sentencing judge correctly noted the legislature had made a consecutive sentence mandatory. The sentencing court then noted consecutive terms of probation imposed at the same time are not permissible. Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—2(b); People v. Tedford (1983), 112 Ill. App. 3d 603, 445 N.E.2d 841.

Defendant argues that in effect the trial court found the criminal damage to property offense was nonprobationable. Defendant urges this court to interpret section 5—8—4(h) as controlling section 5—6—2(b) of the Code and find consecutive probationary sentences are permissible. He asserts the sentencing court erred in not ordering consecutive terms of probation. However, the propriety of the term of imprisonment which defendant received for McLean County cause No. 88—CF—261 is not before this court. We will not engage in an academic discussion of the propriety of consecutive terms of probation under these circumstances.

The record is clear the defendant was properly admonished as to the possible penalties for the instant offense. On July 6, 1989, the court admonished the defendant, with respect to the criminal damage to property offense, that he could be sentenced to the Department of Corrections for a period of not less than one nor more than three years, required to serve a period of one year’s supervision after release from the penitentiary, could be placed on probation for a period of 30 months, and could be fined a maximum of $10,000. After the court realized the defendant was on bond at the time of the criminal damage to property offense, he again admonished the defendant and indicated to the defendant the possible penalties for aggravated battery (case No. 88—CF—261). With respect to the instant offense (criminal damage'to property), he stated:

“If I find and sentence you on criminal damage to property over $300, it has to be a consecutive sentence, that is whatever sentence I impose on the aggravated battery sentence, then on the criminal damage to property sentence you add this on to it. It isn’t going to be at the same time. Do you understand what I am saying? You are not serving the jail time at the same time on both of the.se cases. Do you understand that?”

At the court’s suggestion, a recess was taken to allow defendant to talk to his attorney. After the recess, defendant persisted in his plea of guilty to criminal damage to property. Contrary to defendant’s argument, the record shows he was properly admonished as to the maximum and mimimum sentences that could be imposed with respect to the instant offense. As stated in People v. Eddington (1979), 77 Ill. 2d 41, 48, 394 N.E.2d 1185, 1188:

“A misstatement of the understanding of the minimum sentence by the trial judge necessitates a new sentencing hearing only when it appears that the mistaken belief of the judge arguably influenced the sentencing decision.”

As an alternative argument, defendant urges this court to find the sentencing court erred in not imposing probation consecutive to imprisonment. Defendant maintains the sentencing court erred as a matter of law in believing it could not impose a sentence of probation. In People v. Mack (1985), 133 Ill. App. 3d 788, 479 N.E.2d 445, the court held that a sentence of probation to be served consecutive to a sentence of incarceration was not authorized by the Code. The sentences in Mack were imposed at the same time for separate offenses. The Mack court reasoned such a sentence served to increase the penalty imposed upon the offender. The court noted such an enhancement should be expressly authorized by the legislature.

In People v. Jocelyn (1989), 181 Ill. App. 3d 774, 537 N.E.2d 1086, this court found a sentence of probation consecutive to a previously imposed sentence of imprisonment was an available option following a conviction for escape. The court noted section 5—5—3(b) of the Code enumerates available sentencing options, including probation, periodic imprisonment, conditional discharge, and imprisonment, “alone or in combination” for felonies such as those in the instant case. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3(b).) The court further reasoned that though the sentence imposed for escape could be probation, the probation must be consecutive to the term of imprisonment the defendant was serving when he escaped. The Jocelyn court found its conclusion was consistent with the reasoning of Mack, since the legislature expressly indicated it wished to enhance the penalty for those who escape from custody.

The language of section 5—8—4(h) of the Code expressly provides for an enhanced penalty when a person on pretrial release commits a second felony. Therefore, under "the reasoning of Mack and Jocelyn, a probationary sentence consecutive to incarceration could have been ordered by the sentencing court. However, a new sentencing hearing is not required in the instant case. The criminal damage to property offense was defendant’s sixth felony conviction. The court noted that it was not certain why defendant had not been sentenced to imprisonment on prior occasions. Thus, although the court may have mistakenly believed probation was not an available option, its statements indicate that even were it an option, the court would not give it. Any error, thus, was harmless. (Jocelyn, 181 Ill. App. 3d 774, 537 N.E.2d 1086.) Defendant does not argue the sentencing court abused its discretion in determining the length of the sentence.

Defendant next argues his sentence must be vacated because the sentencing court failed to order a new PSI. Defendant did not raise this issue in his motion to withdraw his guilty plea. Therefore, defendant has waived review of this issue. (Davis, 175 Ill. App. 3d 1006, 530 N.E.2d 601; Jenkins, 141 Ill. App. 3d 602, 490 N.E.2d 953.) Section 5—3—1 of the Code states that a defendant shall not be sentenced for a felony before a written PSI is presented to and considered by the sentencing court. The only exception is where the parties agree to the imposition of a specific sentence. (People v. Harris (1985), 105 Ill. 2d 290, 473 N.E.2d 1291; Ill. Rev. Stat. 1987, ch. 38, par. 1005—3—1.) Here, defendant expressly adopted a presentence report filed four months earlier. This report was to be used on July 6, 1989, at defendant’s sentencing hearing for McLean County case No. 88—CF—261. Thus, defendant’s contention that no PSI was filed.is erroneous. In People v. Torres (1986), 146 Ill. App. 3d 250, 496 N.E.2d 1060, the court in a similar circumstance stated the presentence report was sufficient. See also People v. Moore (1987), 159 Ill. App. 3d 1070, 513 N.E.2d 87.

Defendant is entitled to a full credit against his fine. The sentencing court imposed a $100 fine. Prior to trial, defendant had been incarcerated for 51 days. Therefore, pursuant to section 110—14 of the Code of Criminal Procedure of 1963, defendant is entitled to a full credit against his fine. Ill. Rev. Stat. 1987, ch. 38, par. 110—14.

For the above reasons, we modify defendant’s sentence to reflect a full credit against his fine and affirm.

Affirmed as modified.

LUND and GREEN, JJ., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL L. STINSON, Defendant-Appellant.
    Fourth District
    No. 4—89—0851
    Opinion filed July 26, 1990.

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

delivered the opinion of the court:

On April 25, 1989, defendant Samuel Stinson was found guilty of committing three counts of the offense of theft over $300. (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(a)(1).) He was subsequently placed on 24 months’ probation, with the question of restitution specifically reserved. Defendant appeals this sentence. We reverse and remand.

The evidence shows defendant was convicted for the theft of several copper coils from the General Motors (GM) plant at which he worked. These coils were recovered from a salvage dealer and returned to their proper owner. At the sentencing hearing, the State sought an order directing defendant to pay restitution to GM. Defendant objected, observing that the items were returned and, therefore, any restitution should go to the salvage dealers for which no figures were presented. He also noted that he is receiving social security disability as his sole income. The court placed defendant on 24 months’ probation and reserved the question of restitution.

Defendant correctly argues that it is improper for the court to reserve the question of restitution. In People v. White (1986), 146 Ill. App. 3d 998, 497 N.E.2d 888, our court answered this exact question. There, after an analysis of section 5—5—6 of the Unified Code of Corrections (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 1005—5—6) and the purposes of determinate sentencing, we concluded that it is necessary that the restitution be fixed at the time of sentencing. Failure to do so results in an invalid order. White, 146 Ill. App. 3d at 1001-04, 497 N.E.2d at 891-92; see also People v. Jones (1988), 176 Ill. App. 3d 460, 465-66, 531 N.E.2d 88, 92.

Having observed that an error has occurred, we must now turn our discussion to the appropriate remedy. The State maintains the matter should be remanded for a proper determination on the restitution question, while defendant believes the restitution order should simply be vacated without remandment. In making his case, defendant relies on White, where our court did exactly that. However, to understand the White decision, it is necessary to review the case history. The White case first came on appeal in People v. White (1985), 135 Ill. App. 3d 563, 482 N.E.2d 134. In that case, we determined the trial court failed to comply with section 5—5—6 in ordering restitution by failing to fix the amount and the manner of payment. (White, 135 Ill. App. 3d at 566-67, 482 N.E.2d at 136-37.) Accordingly, the restitution order was vacated and the case was remanded for compliance. However, on remand, the trial court again did not fix the amount but left it open to change in the future and failed to establish a time limit within which to pay. (White, 146 Ill. App. 3d at 1003-04, 497 N.E.2d at 891-92.) Thus, since the trial court failed to comply with our directions on the initial remand, we were left with little alternative but to reverse the restitution order without remand. This should be treated as a special remedy, directed to an unusual situation, and should not be considered as the appropriate disposition in all cases in which the trial courts fail to comply with section 5—5—6. Rather, the remedy in the original White case, which was vacatur of the restitution order with remandment to comply with the statutory provisions, is the better practice. See People v. Cole (1990), 193 Ill. App. 3d 990, 996, 550 N.E.2d 723, 728; Jones, 176 Ill. App. 3d at 466, 531 N.E.2d at 92-93.

Accordingly, we vacate the restitution order and remand the case for the trial court to comply with the provisions of section 5—5-6 (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-6).

Affirmed in part; vacated in part and remanded.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re MARRIAGE OF MARK STEPHEN YOUNG, Petitioner-Appellant, and PAMELA JO YOUNG, Respondent-Appellee.
    Fourth District
    No. 4—89—0935
    Opinion filed July 19, 1990.
    Modified on denial of rehearing August 31, 1990.

      Manuele & Manuele, of Springfield, for appellant.
    No brief filed for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Petitioner, Mark Stephen Young, appeals the trial court’s order requiring him to pay the attorney fees of the respondent, Pamela Jo Young. These fees were incurred as the result of Pamela’s need to defend a foreclosure suit concerning the marital residence. Mark had been ordered to pay the mortgage on the residence, which had been rented to a third party, the Muellers.

Mark claimed to have entered into an agreement with the Muellers in which they would assume the mortgage on that residence and make the monthly payments thereon. The Muellers did not make the payments, but Mark was not aware of that until the foreclosure action was filed on March 31, 1989. Mark then attempted to settle the foreclosure suit by negotiating with the mortgagor. In August 1989, he ultimately succeeded in reaching a negotiated settlement, but in the interim Pamela had filed a petition for rule to show cause, alleging Mark’s failure to comply with the orders of the court regarding the mortgage payments.

At a hearing held in August 1989 on Pamela’s petition against Mark, all of the above information was called to the attention of the court, which then deemed Pamela’s petition for rule to show cause moot. Pamela nonetheless asked that Mark be directed to pay Pamela’s attorney fees of $250. Mark did not dispute the reasonableness of that figure, but denied that he should be required to pay any attorney fees at all. Mark emphasized that no proceedings were pending regarding the marital residence. The court took the matter under advisement and three days later issued a written order, which provided in pertinent part as follows:

“1. That as ordered in the Dissolution, the Plaintiff was to pay the mortgage on the marital domicile.
2. That the mortgage was not paid and a foreclosure was instituted.
3. That the Defendant was forced to retain counsel.
4. That the foreclosure was settled by the mortgage company accepting a deed in lieu of foreclosure.
5. That although the Petition for Rule is now moot, the Defendant was forced to retain counsel because of the conduct of the Plaintiff.
6. That the Defendant should be reimbursed for unnecessary attorney fees caused by the conduct of the Plaintiff.
7. That a reasonable attorney fee is $250.00.
WHEREFORE, the Plaintiff is ordered to pay Fuller, Hopp, Barr, McCarthy & Quigg the sum of $250.00 on or before November 1, 1989.”

Mark filed a post-trial motion challenging the assessment of attorney fees. This motion did not refer to the trial judge’s failure to make a specific finding relative to “without cause or justification.” The court denied the motion, and Mark brings this appeal.

Even though no appellee’s brief was filed in this case, we are able to decide it because the record is simple and the claimed errors can be easily resolved without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.

The issue before this court is governed by section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 508(b)). That section reads as follows:

“(b) In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” Ill. Rev. Stat. 1987, ch. 40, par. 508(b).

In her petition for rule to show cause, Pamela alleged that Mark’s “failure or refusal to comply with the aforesaid orders of Court is willful and contumacious.” We view this language as necessarily including an allegation that Mark’s failure to comply with the court’s orders “was without cause or justification.” We agree with the following observations from In re Marriage of Kennedy (1988), 170 Ill. App. 3d 726, 525 N.E.2d 168:

“The trial court refused to award attorney fees to petitioner [under section 508(b) of the Act] because it found that ‘it does not have the discretion to award attorney’s fees for the nonpayment of child support when such non-payment is not willful and contemptuous.’ The standard prescribed by section 508(b) of the Act, however, is not one of willful and contemptuous failure to pay support, but failure to pay without cause or justification. (Ill. Rev. Stat. 1985, ch. 40, par. 508(b).) Because the trial court applied a standard that seeks bad faith on the part of the party in arrears, and the correct statutory standard merely searches for a justifiable reason for the party’s failure to pay, we must reexamine the record to determine whether respondent’s failure to pay was without cause or justification, rather than whether respondent was willful and contemptuous in failing to pay.” Kennedy, 170 Ill. App. 3d at 729-30, 525 N.E.2d at 169.

In other words, “willful and contumacious conduct” always includes violations of court orders that are “without cause or justification,” but such violations do not always constitute “willful and contumacious conduct.”

In his pleading in response in the present case, Mark conceded that he had failed to make the payments on the mortgage, but denied that he had refused to comply with the orders of the court.

Mark argues on appeal “that the Petition for Rule to Show Cause was prematurely filed and that in the absence of the findings in the trial court’s judgment, particularly the absence of any evidence of inability of the Defendant (Pamela) to pay her own attorney’s fee, [the order requiring Mark to pay attorney fees] was an abuse of its discretion.”

In In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 519 N.E.2d 1147, this court construed section 508(b) of the Act before its most recent amendment and stated the following:

“Section 508(b) is a mandatory provision by which the trial court must, in a child support enforcement proceeding such as this one, order the noncustodial parent to pay the custodial parent’s costs and reasonable attorney fees. [Citation.] The court may exercise its discretion when deciding whether the delinquent parent’s failure to pay support was ‘without cause or justification.’ [Citation.] However, once a determination has been made that the failure to pay child support was without cause or justification, then the trial court is directed by the statute to award costs and reasonable attorney fees.
In this case the trial court did not make a specific finding that [respondent’s] failure to make the child support payments was without cause or justification. The docket order stated: ‘[T]he parties respectively have willfully and contumaciously violated the provisions of the order of this court entered ***.’ Willfulness in the context of contemptuous conduct implies conduct without cause or justification. [Citation.] The docket order is thus sufficient to meet the requirements of section 508(b) and mandate an award of the reasonable attorney fees [petitioner] incurred in obtaining enforcement.
It does not matter the trial court found [respondent] had purged herself of contempt at a later hearing. The policy behind section 508(b) is to eliminate or lessen the financial burden on a custodial parent that is the consequence of an enforcement action. [Citation.] [Petitioner] incurred attorney fees in an effort to, among other things, enforce the order of child support. Therefore, [petitioner] was entitled to attorney fees at the time the trial court granted him relief by enforcing the *** order for child support. The later purge order did not excuse [respondent] from the obligation imposed by section 508(b).” (Emphasis added.) Wassom, 165 Ill. App. 3d at 1081, 519 N.E.2d at 1150.

Section 508(b) was amended by Public Act 85 — 357, effective January 1, 1988 (1987 Ill. Laws 1957), to include all orders or judgments and not merely child support orders. See Ill. Rev. Stat. 1987, ch. 40, par. 508(b).

We reaffirm our holding in Wassom to the effect that the policy behind section 508(b) of the Act is to eliminate or lessen the financial burden on a party to a marital matter that is the consequence of an enforcement action. However, because we are dealing with a mandatory statutory provision, we also reaffirm that portion of Wassom which states that the trial court is directed by statute to award costs and reasonable attorney fees “once a determination has been made that the failure to pay child support was without cause or justification.” (Emphasis added.) Wassom, 165 Ill. App. 3d at 1081, 519 N.E.2d at 1150.

The written order of the court in the present case contains no such finding. Given the seriousness of the consequences for a respondent when the court makes such a finding, we should not' affirm a trial court award of attorney fees under section 508(b) of the Act without that finding.

By serious consequences, we mean that an order for attorney fees under section 508(b) of the Act does not permit the balancing tests normally applicable to the question of attorney fees. These tests require consideration of the financial resources of the respective parties as mandated by section 508(a) of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 508(a).) Instead, when section 508(b) of the Act is applicable, the court is simply to decide what the costs and reasonable attorney fees of the prevailing party are and to order them paid by the party found to have failed to comply with the order or judgment without cause or justification. We conclude the legislature intended this result to serve as a sanction against parties in marital cases who wilfully disobey court orders.

The Wassom court excused the failure of the trial court to find that the respondent’s failure to comply with child support payments was without cause or justification, but did so only because the respondent was found in indirect civil contempt. The trial court’s docket entry in Wassom stated that the respondent “willfully and contumaciously violated the provisions of the order of this court.” (Wassom, 165 Ill. App. 3d at 1081, 519 N.E.2d at 1150.) In Wassom, this court noted that wilfulness in the context of contemptuous conduct implies conduct without" cause or justification.

Mark’s appellate brief does not refer to section 508(b) of the Act, but does cite section 508(aX2). The trial court’s judgment entered on August 31, 1989, and Mark’s post-trial motion filed on September 28, 1989, do not refer to section 508(b). We conclude that trial counsel may not have called the trial court’s attention to the “without cause or justification” issue. Thus, it is possible the issue was not considered by that court. For this reason, the cause must be remanded for further consideration.

To avoid further confusion, we find it necessary to consider the placement of the burden of proof.'When one party to a dissolution does not fulfill a condition imposed upon him by court order to the detriment of the other party, policy indicated by section 508(b) of the Act requires the party not in compliance to produce evidence of his cause or justification if the costs and attorney fees otherwise required by section 508(b) of the Act are to be avoided.

In this case, Mark, not Pamela, was charged with a responsibility for payment of the mortgage indebtedness. Upon the foreclosure action, Pamela became a necessary party and could well have been held liable for any deficiency judgment. She was justified in seeking legal assistance regarding the foreclosure. The default, as between Mark and Pamela, was the fault of Mark, not Pamela. The evidence regarding the foreclosure and Pamela’s incurring fees in relation thereto was sufficient to transfer the burden of proof regarding “without cause or justification” to Mark.

Mark is the appropriate party to bear this burden because he is the party with knowledge of why he did not cure the default. He should be the party most familiar with his financial condition and the facts surrounding the mortgage which he had assumed. To place the burden upon Pamela requires her to prove a negative. The party who has failed to comply with a court order should be required to bear the burden of both presenting evidence upon and proving justification for the lack of compliance, or at least that the lack of compliance was not “without cause or justification.”

This cause is remanded to the trial court to enable that court to review the record and to determine whether an order of “without cause or justification” should be entered. If the court finds that Mark’s failure was “without cause or justification,” then the court should again enter the judgment for $250.

Remanded.

LUND and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD LAWS, Defendant-Appellant.
    Fourth District
    No. 4—89—0602
    Opinion filed July 26, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Donna Dagnall, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On July 21, 1989, the circuit court of Adams County sentenced defendant Todd Laws, following a revocation of his probation for the offense of theft over $300 (Ill. Rev. Stat. 1989, ch. 38, par. 16—1), to five years’ imprisonment in the Illinois Department of Corrections, with said sentence to run consecutively to a prison sentence presently being served in Missouri. Defendant now appeals, alleging (1) the petition to revoke his probation was not resolved in a speedy fashion; (2) the court did not have jurisdiction to hear the amended petition; (3) the sentence imposed is excessive; and (4) the court erred in imposing consecutive sentences. We affirm.

On October 1, 1985, following a plea of guilty to the offense of theft over $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16—1), defendant was placed on a three-year period of probation. In March 1986, a petition to revoke this probation, alleging that defendant illegally possessed alcohol and that he failed to attend required counseling, was filed. Defendant failed to appear, and an arrest warrant was issued on April 6,1986.

In November 1986, defendant was arrested for participating in several armed robberies in Florida. In 1987, defendant filed two notices pursuant to the interstate agreement on detainers act (Detainers Act), which is codified in section 3—8—9 of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003—8—9), requesting a prompt hearing on the petition to revoke his probation. Each notice was dismissed for procedural reasons.

In April 1988, defendant filed another such motion. Counsel was appointed for defendant and the matter was repeatedly continued. Discussions between the court and the attorneys established that, since defendant had been in prison in Florida, efforts were being made during this time to resolve this case with a plea being taken by mail. On December 27, 1988, new counsel was appointed. The State also received permission to file an amended petition to revoke probation. On January 10, 1989, the amended petition was filed. It still alleged defendant had illegally possessed alcohol in 1986, but it now also alleged he committed the offense of armed robbery in Florida.

On July 10, 1989, defendant, appearing with counsel, admitted he violated his probation by committing the armed robbery offense. The other allegation was withdrawn. On July 21, 1989, defendant was sentenced to five years’ imprisonment, to be served consecutive to a prison sentence he was then serving in Missouri. This appeal followed.

Defendant initially contends the State failed to bring the petition to revoke to a hearing within the time strictures of the Detainers Act, and the petition should therefore have been dismissed. The Detainers Act provides that once certain conditions exist and the defendant gives the prosecuting attorney and the court notice, then he shall be brought to trial within 180 days. (Ill. Rev. Stat. 1989, ch. 38, par. 1003—8—9.) Defendant calculates, not including time attributable to continuances with which he agreed or which he caused, that more than 180 days elapsed from his request on March 25, 1988, until his admission on July 10, 1989. Accordingly, he believes this cause should have been dismissed.

However, a review of the record establishes defendant has waived his right to be brought to trial within the required time period. The court order filed on September 30, 1988, provides, “Defendant specifically waives his right to a speedy disposition of this cause through his counsel.” The right to a speedy trial is a personal one which may be waived. (People v. Milani (1966), 34 Ill. 2d 524, 527, 216 N.E.2d 816, 818.) Here, defendant, through his attorney, did so.

Defendant seems to suggest that somehow the change of attorneys in December 1988 reinvigorates his speedy disposition request. However, once this right is waived, it is waived. The number of different attorneys involved or any other circumstance does not change this. It is not up to the court and the State to keep track of changing circumstances which might indicate a defendant has changed his position on waiving his speedy disposition request. If a defendant wishes to have a speedy disposition once he has waived one, he must specifically request one on the record. Absent such, the waiver is still in effect. In the present case, no request for a speedy disposition appears on the record after the September 30, 1988, waiver. Accordingly, the State was not required to dispose of the case within 180 days.

Defendant’s second contention is that the trial court was without jurisdiction to revoke his probation. Defendant’s original petition to revoke was filed in 1986. On January 10, 1989, an amended petition was filed which contained one count included in the 1986 petition and an added count alleging the Florida armed robbery. It is to this added count which defendant admitted. However, defendant’s original probation was scheduled to end on October 1, 1988. Defendant therefore contends, observing that subject-matter jurisdiction over a defendant on probation lasts only for the duration of probation (see People v. Carter (1988), 165 Ill. App. 3d 169, 518 N.E.2d 1068), that the trial court was without jurisdiction to revoke his probation on allegations raised for the first time after his probation term expired.

Section 5—6—4(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—6—4(a)(3)) provides:

“Personal service of the petition for violation of probation or the issuance of such warrant, summons or notice shall toll the period of probation, *** and the term of probation *** shall not run until the hearing and disposition of the petition for violation.”

In People v. Owens (1983), 116 Ill. App. 3d 51, 451 N.E.2d 988, the court was asked to address the identical question now before us. That court stated:

“We do not agree such a restrictive scope may be placed upon section 5—6—4(a)(3). In plain language it states the issuance of a summons or warrant pursuant to a petition to vacate probation tolls the period of probation and the term of probation shall not run until disposition of the petition for violation. The issuance of a warrant itself is sufficient to permit the circuit court to retain subject matter jurisdiction over a probationer past the date his sentence would otherwise expire. (People v. Williams (1973), 10 Ill. App. 3d 428, 430, 294 N.E.2d 61.) There is no limiting language in the statute suggesting jurisdiction will be retained only for the purpose of considering charges filed during the original term of probation. We may not create by construction an exception limiting jurisdiction which is not apparent from the plain, unambiguous language of the statute. ‘In the absence of any differing indication, words of a statute are to be given their plain, ordinary and common meaning.’ Airdo v. Village of Westchester (1981), 95 Ill. App. 3d 568, 569, 420 N.E.2d 472.” (Emphasis in original.) (Owens, 116 Ill. App. 3d at 54, 451 N.E.2d at 990.)

We agree with this well-reasoned analysis and conclude that, since the issuance of the warrant with the initial petition to revoke tolled the period of probation, the trial court had jurisdiction to revoke defendant’s probation, based on the allegations contained in the amended petition filed after the date the original probation was to end.

Defendant next contends the court erred in imposing the five-year sentence, which is a statutory maximum. He maintains the trial court punished him for the crimes committed by him while on probation, rather than sentencing him for the probation offense.

In People v. Young (1985), 138 Ill. App. 3d 130, 485 N.E.2d 443, this court concluded that a sentencing court could properly consider a defendant’s conduct on probation, and that criminal offenses committed by a defendant while on probation are properly considered in aggravation. This court then said:

“We conclude, and now state explicitly as the approach upon review of such questions, that a sentence within the statutory range for the original offense will not be set aside on review unless the reviewing court is strongly persuaded that the sentence imposed after revocation of probation was in fact imposed as a penalty for the conduct which was the basis of revocation, and not for the original offense.” (Emphasis in original.) Young, 138 Ill. App. 3d at 142, 485 N.E.2d at 450.

Defendant was originally placed on probation for the instant felony theft on October 1, 1985. The presentence report establishes that on September 19, 1980, he was placed on juvenile court supervision for a burglary. On January 12, 1981, in another case, he was adjudicated a delinquent and placed on probation for two more burglaries. In February 1981, petitions were filed alleging he violated his probation and supervision, and he was placed at Chaddock Boys School until February 1982. Defendant, in July 1982, violated his probation and supervision by committing another theft. His probation was extended. Defendant’s probation was repeatedly extended for failure to pay the court-ordered restitution. In 1985, upon its payment, the probation was terminated.

As an adult, defendant pleaded guilty to criminal trespass to a motor vehicle in April 1985, and he was placed on one year’s probation. At the same time, he pleaded guilty to a misdemeanor theft on a Pike County charge which was transferred to Adams County, and he was also placed on probation. The probation officer’s report indicates defendant was not cooperative. The record establishes the court and the State’s Attorney both felt such a defendant normally should go to prison. However, due to the lenient treatment of a more culpable co-defendant by the Missouri authorities, they felt this would be unfair. The court placed defendant on the present probation, with the strictest warning that defendant was very close to prison.

A supplemental presentence report was filed for the July 21, 1989, sentencing hearing. This established that, at the time of the original sentencing, defendant had a pending burglary charge in Missouri. He was eventually placed on five years’ probation and given a three-year suspended sentence. In February 1989, this probation was revoked, and defendant is now serving the three-year sentence. In November 1986, defendant was involved in a series of armed robberies in Florida. In one county he was sentenced to five years in prison, and in another county he was placed on 15 years’ probation.

The State recommended the maximum five-year sentence be imposed. The court, observing defendant had repeated chances of probation and had responded by committing serious offenses, stated:

“So based on your prior record, the fact that you committed other offenses while on probation, you will be ordered to serve the maximum sentence of five years in the Department of Corrections. It’s further going to be provided that that sentence run consecutively to the sentence that you are serving in the State of Missouri.
You did the crimes, you’re going to do the time. That’s what they say and that’s what you are getting, Mr. Laws. You receive no consideration from me. You have earned no consideration. You have done nothing but cause problems and endanger yourself and other people by the commission of very serious criminal acts.”

It is apparent in imposing sentence the court considered only proper factors, including defendant’s serious criminal conduct while on probation. Defendant’s sentence is justified by his past criminal record and his repeated probation failures alone. It is entirely appropriate for a court to reassess and devalue a defendant’s rehabilitative potential, based upon his criminal conduct since he was placed on probation (see Young, 138 Ill. App. 3d at 140, 485 N.E.2d at 449), which is essentially what occurred in the present case. The fact that defendant committed the armed robberies while he was on a “last chance” probation only acts as an exclamation point to this conclusion. There is no error.

Finally, defendant maintains he improperly received a consecutive sentence, since the court did not admonish him of that possibility when he pleaded guilty in 1985. Supreme Court Rule 402(a) (107 Ill. 2d R. 402(a)) provides that prior to accepting a guilty plea, the court shall admonish the defendant to “the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences.” The failure to admonish a defendant, when the court is aware of the possibility of consecutive sentences, of this possibility bars the subsequent imposition of consecutive sentences. People v. Butler (1989), 186 Ill. App. 3d 510, 521, 541 N.E.2d 171, 177; People v. Flannigan (1971), 131 Ill. App. 2d 1059, 1063-65, 267 N.E.2d 739, 743-44.

The record at the sentencing hearing of August 21, 1985, fails to disclose any mention of the pending Missouri charges. Defendant observes the Missouri charges were mentioned in passing at the sentencing hearing on October 1, 1985. He thus maintains the court must have known about the charges on August 21 and, relying on Butler, insists the court is precluded from imposing consecutive sentences.

However, Butler does not support defendant’s position. There, the court had taken separate pleas from defendant and placed him on probation for both offenses. These were subsequently revoked, and the court imposed consecutive sentences. In reversing these sentences for the failure to admonish as to possible consecutive sentences at the time of the original plea, the court observed that defendant’s guilty pleas were entered the same day and, accordingly, the court was aware that consecutive sentences were a possibility. Butler, 186 Ill. App. 3d at 521, 541 N.E.2d at 177.

In the present case, there is no such evidence that the court was aware at the time of the plea that such a possibility existed. The fact that 40 days later the court knew of this charge does not establish otherwise. While it may be good practice for trial courts, in probation pleas, to admonish the defendant of the possibility of consecutive sentences if the probation is revoked, this is not required. (See People v. Crain (1988), 165 Ill. App. 3d 1052, 1054, 519 N.E.2d 1134, 1135.) Since the record fails to establish that at the time the plea was entered the court was aware of the Missouri charges and the possibility of consecutive sentences, it was not error for the court to give no admonition as to that possibility.

Affirmed.

STEIGMANN and McCULLOUGH, JJ„ concur.


text:
    ROBERT M. HEALEY, Indiv. and as President of the Illinois Federation of Teachers, et al., Plaintiffs-Appellants, v. TEACHERS RETIREMENT SYSTEM OF THE STATE OF ILLINOIS et al., Defendants-Appellees.
    Fourth District
    No. 4—89—0781
    Opinion filed August 2, 1990.
    Lawrence A. Poltrock, of Witwer, Burlage, Poltrock & Giampietro, of Chicago (James M. Pietz, of counsel), for appellants.
    Joan T. Hancock, of Teachers Retirement System, of Springfield, and Gregory J. Malovance and Stephen S. Morrill, both of Winston & Strawn, of Chicago, for appellees.
   JUSTICE LUND

delivered the opinion of the court:

Defendants Teachers Retirement System (TRS) and Samuel Anderson refused to provide certain information regarding their enrollees which plaintiffs Robert M. Healey and the Illinois Federation (IFT) had requested pursuant to the Freedom of Informaí'OIA) (Ill. Rev. Stat. 1989, ch. 116, par. 201 et seq.). Plain-suit requesting declaratory and injunctive relief. Appellants m and we affirm the order of the circuit court of Sangamon aying plaintiffs’ request.

ly 18, 1986, Robert M. Healey, as president of IFT, sent a quest to TRS asking that TRS provide the following inforjarding all of its enrollees: “Names, addresses (including zip looI district of employment, school name and address, home numbers, number of years (and credit years) in TRS and mrollee (active retired, other).” TRS denied IFT’s request. ’s request was again denied in an appeal to the executive : TRS, IFT filed a complaint seeking declaratory and injuncin the circuit court of Cook County.

f after plaintiffs filed their complaint, defendants sought a 3r forum non conveniens to the circuit court of Sangamon sfendants’ motion was granted, and the cause proceeded to Lai in the circuit court of Sangamon County.

•d Geppert, Jr., the assistant to the president of IFT, testi;half of the plaintiffs. He discussed in detail the nature of iffs’ request and the purposes for which the information uld be used. Geppert explained that 96% of all teachers in •garten- through twelfth-grade system are currently under bargaining agreements. He stated that IFT often engages in gainst the Illinois Education Association (IE A), which is the large teachers’ union in the State.

questioned regarding IFT’s purpose for requesting such inGeppert stated that TRS “is the — to our knowledge, the where the body of information exists.” He stated that IFT ¡en able to communicate directly with those teachers outside irship, but rather has “had to suffer through a series of rs.” Geppert explained that those teachers outside IFT ip are primarily members of the IEA, and contended that significant differences between the two organizations that communicated.

rt described information IFT has sent to State University t System (SURS) enrollees. He stated that this information aple of the type of information IFT would send to TRS en-t could obtain their names and addresses. Plaintiffs’ exhibits ough 7, which are examples of items mailed to SURS enrollle a brochure entitled “Discover the IFT Advantage,” which outlines the benefits of IFT membership. The brochure stresses that IFT bargains more effectively than IEA and strikes less frequently, and emphasizes that IFT’s affiliate costs are less than IEA’s. Another item, entitled “Opinion Survey,” asks teachers to rate their job satisfaction, to express their opinion of various labor unions including IFT and the National Education Association, and to rate the performance of their current labor union. A third piece, entitled “Stay in Touch with the World of Public Employment,” describes the benefits of an “Emeritus Membership” designed for retired public employees. Stated benefits include, “Insurance plans, buying services, group travel services *** even the AFT VISA card ***.” Geppert stated that an “Emeritus Bulletin,” which would accompany the “Stay in Touch” brochure, would “provide legislative information about the emeritus program *** which we think is timely and important to retired public employees.” The “Emeritus Bulletin” introduced at trial reiterated the benefits of emeritus membership in the IFT. Geppert admitted that “Discover the IFT Advantage” and the IFT “Opinion Survey” have been described as “organizing tools” in reports to the IFT executive board.

The trial court entered an order in favor of defendants, denying plaintiffs’ request for declaratory and injunctive relief. We affirm the trial court’s finding that the information sought by plaintiffs is exempt from disclosure, pursuant to section 7(b)(i) of the FOIA. (Ill. Rev. Stat. 1989, ch. 116, par. 207(b)(i).) While the trial court did not rely upon section 7(b)(ii) of the FOIA as a basis for its ruling, this exemption also prohibits disclosure of the requested information. Ill. Rev. Stat. 1989, ch. 116, par. 207(b)(ii).

Section 3(a) of the FOIA sets forth the act’s general rule of disclosure, requiring that “[e]ach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act.” (Ill. Rev. Stat. 1989, ch. 116, par. 203(a).) Section 2 of the FOIA provides the definitions for all terms used therein. Included within the subsection (a) definition of “public body” are “administrative, or advisory bodies of the State” and “school districts.” (Ill. Rev. Stat. 1989, ch. 116, par. 202(a).) The subsection (c) definition of “public records” includes “all records *** having been prepared, or having been or being used, received, possessed or under the control of any public body.” (Ill. Rev. Stat. 1989, ch. 116, par. 202(c).) Therefore, TRS, as well as all school districts, are “public bodies” and the information plaintiffs seek is a "public record.”

Section 7 lists the various exemptions from disclosure and provides, in relevant part:

“(1) The following shall be exempt from inspection and copying:
* * *
(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:
(i) files and personal information maintained with respect to clients, patients, residents, students or other individuals receiving social, medical, educational, vocational, financial, supervisory or custodial care or services directly or indirectly from federal agencies or public bodies;
(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for such positions; ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 116, pars. 207(1)(b)(i), (1)(b)(ii).)

This court has consistently recognized that the exemptions contained within the subsections of section 7(b) are per se exemptions and do not require courts to determine whether disclosure of the information described in each exemption would constitute a “clearly unwarranted invasion of personal privacy.” (Staske v. City of Champaign (1989), 183 Ill. App. 3d 1, 5, 539 N.E.2d 747, 750; Copley Press, Inc. v. City of Springfield (1986), 143 Ill. App. 3d 370, 372-73, 493 N.E.2d 127, 128.) The information plaintiffs seek constitutes “files and personal information maintained with respect to *** individuals receiving *** financial *** services” directly from a public body, and is therefore per se exempt from disclosure under the plain language of section 7(b)(i). As “personnel files and personal information maintained with respect to employees *** of [a] public body,” the subject of plaintiffs’ informational request is similarly exempt under section 7(b)(ii).

Nondisclosure of the requested information also comports with the public policy and legislative intent underlying the FOIA. Section 1 of the FOIA provides, in relevant part:

“Pursuant to the fundamental philosophy of the American constitutional form of government, it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act. Such access is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.
This Act is not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.” Ill. Rev. Stat. 1989, ch. 116, par. 201.

Although plaintiffs contend that the information they seek is directly relevant to the operation of government, we fail to see how the disclosure of names, addresses, telephone numbers, and the enrollment status of TRS members would reveal anything about the affairs of government or the official acts and policies of the public officials who administer TRS.

Plaintiffs further insist that, once given the information they seek, they will inform TRS enrollees of relevant legislation and collective-bargaining issues, thereby helping to fulfill FOIA’s stated objective of enabling “the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest.” (Ill. Rev. Stat. 1989, ch. 116, par. 201.) However, plaintiffs’ testimony at trial suggests that IFT’s primary objective is to enlarge its membership rather than inform the public.

By plaintiffs’ own admission, 96% of the teachers in the kindergarten- through twelfth-grade system are currently under collective-bargaining agreements. Plaintiffs’ exhibits Nos. 4 through 7, which are examples of the type of information IFT would send TRS members, contain little discussion of relevant legislation and collective-bargaining issues. The information is largely self-promotional and is focused on attracting potential members to the IFT. In short, neither the information IFT requests, nor the information it plans to send TRS members if its request is granted, tends to reveal much at all about the operation of government. IFT is merely seeking to expand its enterprise. Nondisclosure of information sought for this purpose is consistent with the public policy expressed in section 1 of the FOIA.

We recognize that our per se interpretation of section 7(b) exemptions differs from that of the First and Third District Appellate Courts. These courts reject a per se application of exemptions in favor of a case-by-case balancing of interests in which the court must determine if disclosure would “constitute a clearly unwarranted invasion of personal privacy.” (Margolis v. Director of the Department of Revenue (1989), 180 Ill. App. 3d 1084, 1089, 536 N.E.2d 827, 829-30; City of Monmouth v. Galesburg Printing & Publishing Co. (1986), 144 Ill. App. 3d 224, 226, 494 N.E.2d 896, 898.) Now, as in the past, we decline to follow their reasoning.

Much like the First and Third District Appellate Courts, Federal courts balance the privacy interest in nondisclosure against the public interest in disclosure when applying certain exemptions contained "within the Federal act. (See National Association of Retired Federal Employees v. Horner (D.C. Cir. 1989), 879 F.2d 873, 874.) However, the exemptions contained within the Federal Freedom of Information Act (5 U.S.C. §552(b) (1988)) are often not categorical in nature and compel Federal courts to determine whether the release of information would invade the personal privacy of those persons who are the subject of such information. For example, the Federal corollary to the Illinois FOIA’s exemption 7(b)(i) states that the Federal act’s disclosure requirements do not apply to “personnel and medical files *** the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. §552(b)(6) (1988).) Contrastingly, the Illinois FOIA sets forth categorical examples of information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, thereby relieving courts of the task of case-by-case balancing. The State and Federal acts are sufficiently different in their construction that we are not compelled to follow the Federal court’s balancing approach.

Our decision to apply section 7(b) exemptions in a categorical manner finds further support in United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), 489 U.S. _, _, 103 L. Ed. 2d 774, 797-98, 109 S. Ct. 1468, 1483, where the United States Supreme Court recognized that the exemptions contained within the Federal act may be applied in a per se fashion:

“Our cases provide support for the proposition that categorical decisions may be appropriate and individual circumstances disregarded when a case fits into a genus in which the balance characteristically tips in one direction.”

Given the fact that the information plaintiffs seek says little or nothing about the operation of government, we find the Court’s language compelling in this case. The trial court properly construed the section 7(b) exemptions in a per se manner.

While we decline to adopt a balancing approach, we are not convinced that the result of this case would be any different even if we chose to do so. At least two Federal cases suggest that the information sought by plaintiffs would be exempt from disclosure under any approach.

In Horner (879 F.2d 873), the District of Columbia Circuit reversed the judgment of the district court ordering the Office of Personnel Management to disclose to the National Association of Retired Federal Employees (NARFE) the names and addresses of retired Federal employees. Much like the plaintiffs in this case, NARFE sought the list in order to recruit new members through mailings. After balancing the public interest in disclosure against the privacy interest in nondisclosure, the Horner court concluded that disclosure of the requested records would infringe upon a modest privacy interest and would serve no public interest. Hence, the court reasoned, disclosure of the records was prohibited by exemption 6 of the Federal act (5 U.S.C. §552(b)(6) (1988)) as a clearly unwarranted invasion of personal privacy. (Horner, 879 F.2d at 879.) The Horner court’s reasoning suggests that if we chose to apply a balancing test, we would reach a similar conclusion:

“The lesson for this case, mutatis mutandis, is that unless the public would learn something directly about the workings of the Government by knowing the names and addresses of its annuitants, their disclosure is not affected with the public interest. *** The simple fact is that those records say nothing of significance about ‘what theQ Government is up to.’ ” Horner, 879 F.2d at 879.

Federal courts applying the balancing test advocated by plaintiffs have also recognized that nondisclosure is warranted when “any benefits flowing from disclosure of the information sought would inure primarily to the union, in a proprietary sense, rather than to the public at large.” (American Federation of Government Employees, AFL-CIO, Local 1923 v. United States Department of Health & Human Services (1983), 712 F.2d 931, 932.) This is precisely such a case.

Although Federal precedent suggests that the outcome of this case would be no different if we undertook a balancing test, plaintiffs advocate three principal arguments in support of their contention that the trial court erred in applying exemption 7(b)(i) in a per se manner. Plaintiffs first contend that the trial court was legally bound to apply the first district’s balancing approach.

The plaintiffs originally filed this action in Cook County, where the first district’s balancing approach is binding on the circuit court. Defendants were then granted a motion to transfer for forum non conveniens, and the cause proceeded to trial in Sangamon County, where the court followed our per se interpretation of the FOIA. When a defendant obtains a transfer for forum non conveniens in the Federal courts pursuant to section 1404(a) (28 U.S.C. §1404(a) (1988)), the law of the transferor forum applies. (Van Dusen v. Barrack (1964), 376 U.S. 612, 639, 11 L. Ed. 2d 945, 962-63, 84 S. Ct. 805, 821.) Plaintiffs reason that the same choice-of-law principles that are applied in Federal forum non conveniens cases should be applied at the State level. However, plaintiffs cite and we know of no authority for this proposition. Further, we do not view this as an appropriate case in which to apply the choice-of-law principles utilized in Federal forum non conveniens cases.

The primary rationale for applying the law of the transferor forum in Federal cases is to discourage “forum shopping” by the defendant in an attempt to obtain a State law advantage. There is little in this case to suggest that defendants sought transfer in order to obtain an advantage through the application of fourth district law. Defendants sought transfer to Sangamon County because TRS, the information plaintiffs seek, and all of the potential TRS witnesses are located there. Additionally, as we previously suggested, it seems unlikely that the result of this case would be any different if the first district’s balancing approach had been applied by the trial court. Hence, it is not apparent that defendants actually obtained an advantage even if one was sought.

Plaintiffs further contend that the trial court’s per se construction of section 7(b) violates the first amendment of the United States Constitution. (U.S. Const., amend. I.) Plaintiffs reason that the first amendment requires the State to show that any denial of the public’s right of access to information about the operation of government is necessitated by a compelling governmental interest and is narrowly tailored to serve that interest. Plaintiffs assert that by construing the section 7(b) exemptions in a per se manner, the trial court relieved the State of its burden of showing a compelling governmental interest and thus rendered the FOIA unconstitutionally overbroad. Plaintiffs cite Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613, and Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814, as authority for their constitutional challenge.

This court’s interpretation of the FOIA withstood a similar challenge in Copley Press (143 Ill. App. 3d 370, 493 N.E.2d 127). There, the plaintiff also relied upon Globe and Richmond as the basis for its first amendment argument. This court distinguished the two United States Supreme Court cases from the facts of Copley Press as follows:

“Globe and Richmond concern the right of media representatives to be present at ongoing criminal trials. The Globe court explained that the right to such access to court proceedings was grounded in a tradition of accessibility and the need to permit public scrutiny of the judicial process. There is no such tradition of accessibility to applications for licenses and less need to permit public scrutiny of the background of people receiving licenses.” (Copley Press, 143 Ill. App. 3d at 374, 493 N.E.2d at 129.)

The distinctions we set forth in Copley Press are equally applicable to this case. There is by no means a tradition of accessibility to the type of information plaintiffs seek. Further, there is little need to permit public scrutiny of such information because it reveals practically nothing about the operation of government. Our per se interpretation of the section 7(b) exemptions does not run afoul of the first amendment.

Finally, plaintiffs contend that the Illinois Supreme Court decision in Hamer v. Lentz (1989), 132 Ill. 2d 49, 547 N.E.2d 191, recognizes that section 7(b) does not create per se exemptions and mandates disclosure of the information they request. Although the facts of Hamer are similar to those of this case, we do not view the Hamer holding so expansively.

In Hamer, the plaintiff submitted a written request for certain records to Norman Lentz, the administrative secretary of the Illinois General Assembly Retirement System (GARS). Plaintiff sought information regarding the identity of all former members of the Illinois General Assembly currently receiving pension payments under GARS, the annual pension received by each former member, the salary received by each former member immediately prior to retirement, the date of retirement, the length of service in the General Assembly, and the cumulative pension received by each former member from the date of retirement. After GARS refused to release the records plaintiff requested, he brought an action for declaratory and injunctive relief pursuant to the Illinois FOIA. The trial court ordered defendants to disclose some, but not all of the requested information. The appellate court held that the FOIA required all the records requested by plaintiff to be disclosed. (Hamer v. Lentz (1988), 171 Ill. App. 3d 888, 525 N.E.2d 1045.) Defendants appealed to the Illinois Supreme Court, contending that to produce the length-of-service and cumulative pension information requested by plaintiff would require defendants to “create a new record,” a duty the FOIA expressly declines to impose upon public bodies. (Hamer, 132 Ill. 2d at 54, 547 N.E.2d at 194.) Defendants did not contend that the information the appellate court ordered them to disclose was exempt under section 7 of the FOIA.

Without citing any of the FOIA exemptions, the court held that the cumulative pension and length-of-service information “is maintained by defendants in the ordinary course of business and it is not exempt from disclosure.” (Hamer, 132 Ill. 2d at 55, 547 N.E.2d at 194.) Whether or not these records were exempt was not at issue in defendants’ appeal. Further, the court stated no rationale whatsoever for its comment in dicta that the information plaintiff sought was “not exempt from disclosure.” For these reasons, we do not view the Hamer dicta as explicitly or implicitly indicating that it is improper to construe section 7(b) exemptions in a per se fashion. Nor do we view Hamer as mandating disclosure of the information requested in this case. Although this case and Hamer are factually similar, the Hamer decision addresses a completely different legal issue. Our decision is not controlled by Hamer.

For these reasons, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


text:
      In re P.E.K., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. P.E.K., a Minor, Respondent-Appellant).
    Fourth District
    No. 4—90—0063
    Opinion filed August 2, 1990.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

On December 14, 1989, respondent P.E.K. appeared in the circuit court of Morgan County and admitted committing the offense of criminal damage to property. He was subsequently placed on probation and ordered to pay restitution. Respondent now appeals this disposition.

On November 21, 1989, a petition for adjudication of wardship was filed, alleging respondent was delinquent and that he had committed the offense of criminal damage to property. (Ill. Rev. Stat. 1989, ch. 38, par. 21—1.) The particulars of the alleged offense were that on October 14, 1989, respondent damaged property of the Liberty Church, being various tombstones, a crucifix, a door, and a hasp. On December 14, 1989, respondent appeared with a corespondent, J.E.C. They both admitted their involvement in the offense. The court found them delinquent, made them wards of the court, and continued the matter for a dispositional hearing.

Respondent’s hearing was held on January 18, 1990. The State presented evidence from the investigating officer concerning the offense which included a series of pictures detailing the damage. A member of the Liberty Church board testified to the problems the church has with vandalism and to the cost of repairs. The court placed respondent on probation, with the special conditions that he serve 30 days’ detention, pay $826 of restitution, and perform 500 hours of public service. This appeal followed.

Respondent initially contends the court erred by making him a ward of the court at the adjudicatory hearing rather than at the dis-positional hearing. Respondent is correct. (See In re A.L.J. (1985), 129 Ill. App. 3d 715, 716, 473 N.E.2d 132, 133.) This conclusion, however, does not require reversal.

In A.L.J., this court held that a similar error could not be considered harmless and reversed the trial court’s determination. (A.L.J., 129 Ill. App. 3d at 717, 473 N.E.2d at 133.) Respondent, believing this case created a blanket rule to that effect, argues that his case must similarly be reversed. However, we believe that case was not intended to create such a blanket rule and is best limited to its peculiar circumstances. Subsequent courts have concluded that this error is harmless where the court has considered the dispositional evidence before entering its dispositional order. (In re L.W. (1988), 171 Ill. App. 3d 1056, 1063, 525 N.E.2d 560, 565; In re E.S. (1986), 145 Ill. App. 3d 906, 911-12, 495 N.E.2d 1334, 1338; In re G.L. (1985), 133 Ill. App. 3d 1048, 1053, 479 N.E.2d 1234, 1238.) We believe this is the better analysis.

In the present case, the court heard all the evidence and arguments before entering its dispositional order. Further, prior to proceeding at the dispositional hearing, the court explained the range of dispositions, which included the possibility of no restrictions being placed upon respondent. Thus, it does not appear the court’s errant order of wardship at the adjudicatory hearing had any bearing on the ultimate disposition. Since respondent was not prejudiced, we find this error harmless.

Respondent next raises a myriad of alleged errors concerning the order of restitution. He initially argues the restitution amount is wrong because the evidence does not establish he is responsible for all the damage included in the repair estimate. Recently this court stated, “In the absence of some specific claim of inaccuracy in a presentence report, we hold that evidence in addition to information contained in the presentence report is not required. Thus, in the present case, no additional evidence regarding restitution, beyond the information on that subject contained in the presentence report, was required.” (Emphasis in original.) (People v. Powell (1990), 199 Ill. App. 3d 291, 295.) While that case involved procedures under criminal proceedings, we find its analysis equally applicable to juvenile proceedings and so hold now. In the case at bar, the record establishes that the repair estimate was contained in the dispositional report, which all the parties acknowledged receiving. At no time during the hearing was the amount questioned, nor was it asserted by respondent or his parents that he was not responsible for the listed damages. In fact, the only question in any regard to the restitution was respondent’s mother’s query as to whether respondent was liable for the entire restitution by himself. Accordingly, it is clear pursuant to Powell that respondent has waived any allegation of error in this regard.

Respondent next contends the court erred by failing to apportion the payments of restitution between himself and J.E.C. There is no error. The docket sheet establishes both respondents were ordered to pay the entire restitution. Restitution orders made under the Juvenile Court Act of 1987 are controlled by section 5—5—6 of the Unified Code of Corrections. (See Ill. Rev. Stat. 1987, ch. 37, par. 805—23(b)(5); Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6.) Section 5—5—6(c) directs that in situations such as this each party be ordered to pay the entire amount of restitution. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(c).) The court may then apportion the payment of restitution (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(c)(2)) but, in the event it does not, then each party shall be responsible for his or her pro rata share. (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(c)(3).) Thus, it is clear the apportionment respondent seeks has been made.

Respondent next contends the court erred by failing to give him credit against the restitution for the public service work he performs. Section 5—5—6(b) allows credit for “property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(b).) Respondent believes any of the public service work he might perform at the Liberty Church should be considered in this vein. However, a close look at the court’s order shows that respondent was to perform 500 hours of public service at rural cemeteries, which could

include the victim’s cemetery. The court’s stated intention was that this would include mowing and the cleaning and repair of tombstones. It is then evident these 500 hours were meant as a separate condition of probation (see Ill. Rev. Stat. 1989, ch. 37, par. 805—24(2)(n)), and not as an order to repair the specific damages defendant caused. Accordingly, he is entitled to no credit.

Respondent finally contends the court erred by failing to set forth a method or time limit of payment as required by statute. (See Ill. Rev. Stat. 1989, ch. 38, par. 1005—5—6(f).) The State agrees with this contention, as do we. (See People v. Hayes (1988), 173 Ill. App. 3d 1043, 1052, 527 N.E.2d 1342, 1350.) Accordingly, the matter must be remanded for the court to set the conditions of payment as required.

Affirmed and remanded with directions.

GREEN and STEIGMANN, JJ., concur.