author: Mr. JUSTICE TRAPP Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Salvatore Basile, Defendant-Appellant.
    (No. 11844;
    Fourth District
    July 25, 1974.

      Rehearing denied August 21, 1974.

    CRAVEN, J., specially concurring.
    James Walker, of Bloomington, for appellant.

      Paul R Welch, State’s Attorney, of Bloomington (Michael J. Flynn, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was charged with conspiracy, armed violence and burglary. A jury found him not guilty of armed violence and guilty of conspiracy and burglary. Sentence of 2 to 6 years was imposed upon the order of conviction for burglary only.

On appeal defendant urges that he was denied a fair trial as a result of prejudicial comments in the prosecutor’s closing argument, that his motion to suppress certain evidence was improperly denied, and that it was error to deny his motions for discovery of police reports.

The prosecution was upon charges of the burglary of the Kohler residence in McLean County on the evening of January 9, 1971. On that evening and at approximately the time of the burglary, the defendant, who resided in Steger, Illinois, a southern suburb of Chicago, was observed in Bloomington in the presence of his co-conspirators and accomplices at the Howard Johnson Motel, approximately one-half mile from the Kohler home. The State’s principal witness was Richard Stiles, an accomplice, the admission of whose testimony resulted from an allegedly erroneous ruling on defendant’s motion to suppress.

Stiles testified that on January 7, 1971, two days prior to the burglary, he was residing with the defendant and DanieUe Becker, at defendant’s resident in Steger. Stiles related his discussion of the burglary plans with the defendant, and he testified that he had rented a car in which he and the defendant traveled to Bloomington where they stayed on the night preceding the burglary.

When the defendant and Stiles entered the Kohler home, law-enforcement officers who had been alerted to the possibility of the burglary were concealed in the house waiting for them. The burglars were confronted and ordered to “Freeze,” whereupon a brief gun battle occurred during which Stiles was shot in the hand. Both defendant and Stiles escaped however, and fled to the residence of David Swafford, another accom-pfice, who that night, with his wife Carol, drove defendant and Stiles to defendant’s residence in Steger.

The foHowing day, January 10, 1971, Swafford gave a statement to the police indicating that he and his wife, Carol, had driven Stiles to the Chicago area. On January 11, 1971, a warrant for Stiles’ arrest was issued from the McLean County Circuit Court, and both Swaffords accompanied law-enforcement officers to Steger, and indicated defendant’s residence as the place to which Stiles had been brought on the night of the burglary. On the night of January 11, 1971, the police, with an arrest warrant for Stiles, entered into defendant’s residence looking for Stiles, and in the process searched the premises and found various physical evidence, including a face mask, ammunition and a pistol with obliterated serial numbers. Stiles was not found in this search. After the search, while the police were leaving, defendant was observed walking toward his home in the company of Danielle Becker. The police returned to defendant’s home and arrested him for aiding and abetting a fugitive. Shortly thereafter, Becker gave a statement to the police that ultimately led to the arrest of Stiles early on the morning of January 12, 1971, at the nearby suburb of Chicago Heights, Illinois.

In argument, the prosecutor made the following complained-of comments:

“It is unrebutted [sic] and unrefutted [sic] in this case that Salvatore Basile was in the Howard Johnson Motel approximately a half hour after this shoot-out * *

In closing argument, he said:

“It is unrefuted in this case that the two of them [Stiles and defendant] were residing at the Butler Street address in Steger. They came down here, did this act and left. They did it with three other people in this community, Stufflebeam, Swafford and Patrick. Mr. Walker [defendant’s attorney] knows why those people aren’t here, the other people that participated in that incident.

He told you during the course of this case he thought you would be interested to hear from them. I’d be interested in hearing from them too. None of us can hear from them at this point.”

Such argument was not objected to when originally made in the trial court.

A motion and supplemental motion to suppress evidence were filed, and hearings were had on such motions. The motions seek to suppress among other things the testimony of Stiles and Becker, and physical evidence obtained in search of both defendant’s residence and the location in Chicago Heights where Stiles was arrested. The motions were denied except as to physical evidence seized during the search of defendant’s home. No physical evidence was introduced, and the only evidence introduced against defendant that was the subject of his motion to suppress was the testimony of Stiles. Thus, we need consider alleged error in the trial court’s ruling on defendant’s motion to suppress only insofar as it relates to Stiles’ testimony.

During the course of these criminal proceedings, defense counsel was allowed to withdraw and different counsel was obtained. Defendant’s original counsel filed a discovery motion requesting, among other things, “all police reports pertinent to this case, whether taken in this or another county of the State.” The motion insofar as applicable to police reports was denied, but granted as to “any statements, oral or written, made by any witness for the State that may have been reduced to writing.” After original counsel had withdrawn, the new Illinois Supreme Court discovery rule (50 Ill.2d R.412) became effective, and subsequently, an-another motion for discovery was filed again requesting “all police reports made in connection with the investigation and arrest of suspects in connection with the offense.” As the second motion requested substantially the same information requested in the first motion, the hearing on the second motion was limited to those materials that counsel thought should be allowed, in addition to those things previously allowed and not ruled on in the hearing on the first motion. The second request for the police reports was not specifically brought to the attention of the trial court in the hearing on the second motion. The trial court ordered the State to give defendant all memoranda which substantially set forth oral statements of the witnesses. Although the trial court did not specifically rule upon the discoverability of the police report at the hearing on the second discovery motion, defendant did specifically request such reports in writing, and the subsequent hearing was limited to those matters not previously ruled upon; thus, for purposes of this appeal only, we deem the action of the trial court to be a refusal of defendant’s request for discovery of police reports except insofar as they might contain substantially verbatim statements of witnesses. No motion for an in camera examination of police reports was presented.

Defendant’s assertion of prejudicial error resulting from the prosecutor’s closing is without merit. The prosecution may comment on the fact that the testimony of the State’s witnesses is uncontradicted, even though the defendant would be the only person who could have contradicted it. (People v. Hopkins, 52 Ill.2d 1, 6, 284 N.E.2d 283.) Further, the prosecution’s remarks were not so prejudicial that defendant did not receive a fair trial, nor were they so flagrant as to threaten the deterioration of the judicial process. (People v. Smothers, 55 Ill.2d 172, 176, 302 N.E.2d 324.) Under such circumstances, where no objection is made by defendant at trial to any portions of the argument of which he complains on appeal, the error, if any, is waived. People v. Edwards, 55 Ill.2d 25, 35, 302 N.E.2d 306.

Defendant’s contention that Stiles’ testimony should have been suppressed proceeds in two directions. First, it is urged that the warrant for Stiles’ arrest was invalid, and hence, as Stiles’ resulting arrest and “seizure” were invalid, his testimony must be suppressed. We need not consider the attack upon Stiles’ arrest warrant because defendant does not have standing to assert its invalidity. (Wong Sun v. United States, 371 U.S. 471, 492, 83 S.Ct. 407, 9 L.Ed.2d 441.) In People v. McNeil, 53 Ill.2d 187, 191, 290 N.E.2d 602, the Uhnois Supreme Court stated that “the defendant must show how his constitutional rights have been violated in order to have standing to challenge the validity of a search or seizure.” Defendant has not shown any violation of his constitutional rights that might result from a defective warrant for the arrest of Richard Stiles, and we thus do not consider any alleged error on that basis in the failure to suppress Stiles’ testimony.

In the alternative, defendant argues that Stiles’ testimony should have been suppressed because Stiles was “discovered” as a result of information obtained from Danielle Becker, who was herself “discovered” as a result of the allegedly illegal search of defendant’s residence when the police attempted to arrest Stiles there on January 11, 1971. It is not necessary to consider whether the search of defendant’s home was unreasonable, because it is clear that the discovery of Danielle Becker was not in any way the result or the fruit of that search. Becker was found after the police had left defendant’s home and were already half a block away when they observed a car occupied by defendant and Becker approach defendant’s home. Defendant and Miss Becker then proceeded to leave the vehicle and walk toward defendant’s home. Under these circumstantances, no “search” resulting in the discovery of Miss Becker ever occurred. (People v. Sylvester, 43 Ill.2d 325, 327, 253 N.E.2d 429.) In Sylvester, it was said that:

“ ‘A search implies a prying into hidden places for that which is concealed, and it is not a search to observe that which is open to view.’ [Citations.]”

Regardless, we could not say that defendant’s reasonable expectation of privacy would extend to public streets and sidewalks upon which his companions might be walking. (Katz v. United States, 389 U.S. 347, 19 L.E.2d 576, 88 S.Ct. 507.) Likewise, the link connecting Stiles’ testimony to the “seizure” of Miss Becker is insufficient to establish Stiles’ testimony as the fruit of the poisonous tree. Defendant relies upon People v. Martin, 382 Ill. 192, 46 N.E.2d 997, and People v. Albea, 2 Ill.2d 317, 118 N.E.2d 277, for the proposition that where a witness is discovered as the result of information obtained from an illegal search and seizure, the testimony of the discovered witness must be suppressed. In both Albea and Martin, the existence of the evidence in question was brought td the attention of the police only as a result of other evidence illegally seized. Here, however, the existence of Stiles was known prior to the allegedly illegal “seizure” of Becker, and in fact it was pursuant to attempts to apprehend Stiles that Becker was found. It is clear that knowledge of Stiles’ existence was the result of an independent investigation and information furnished by Swafford, and that the alleged seizure of Becker did not result in the “discovery” of Stiles’ existence, but merely of his location. Appellant has indicated no authority that the disclosure of the location as distinguished from the existence of evidence resulting from an illegal seizure of different evidence requires the suppression of the evidence whose location was disclosed. Thus, it is clear that even had the “seizure” of Becker been the result of a “search” which was illegal, Stiles’ testimony was properly allowed because his existence was disclosed from an independent source. People v. Rudolph, 12 Ill.App.3d 420, 424, 299 N.E.2d 129.

Defendant asserts a denial of due process in the refusal to allow his pretrial motion for production of all police reports. The issue is argued but briefly and is stated:

“There is no real distinction between the statement of a prosecution witness who is not a police officer and a report authorized [sic] by a police officer. The decisional law distinction is illogical # # # >»

The argument made here hardly comes into focus when considered in the language of the motion made. An initial motion in June, 1971, asked for production of all police reports. Such motion was denied, for at that date discovery was as provided under the authority of People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1, People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197, People v. Cole, 30 Ill.2d 375, 196 N.E.2d 691, People v. Johnson, 31 Ill.2d 602, 203 N.E.2d 399, and People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200. These cases directed that statements or grand jury testimony be made available for use in impeachment when a witness had testified. The rule originated under the holding of Jencks v. United States, 353 U.S. 657, 1 L.Ed.2d 1103, 77 S.Ct. 1007.

In November, 1971, after the effective date of Supreme Court Rule 412, defendant filed a motion for discovery framed explicitly in terms of the rule, including, (1) the names of witnesses “whom plaintiff intends; to call as witnesses at a hearing or trial”; (2) the relevant written and recorded statements of persons described in the preceding paragraph, and the transcript of grand jury testimony of defendant and persons “whom plaintiff intends to call as witnesses.” The language of the motion at issue here appears to be:

“14. all police reports made in connection with the investigation and arrests of suspects in connection with the offense (Rule 412
(h).)”

Rule 412(h), entitled “Discretionary disclosures,” provides:

“Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by this rule.”

In the Committee Comments to this provision it is reiterated:

“[Discovery will only be allowed when defense counsel can show that what he seeks is material to the preparation of the defense.”

Neither the record of the hearing upon the motion, nor any other part of the record discloses a showing of matter material to the preparation of defense as provided in Rule 412(h).

Since the court granted discovery as to statements of witnesses the prosecution intended to call at the trial, it appears that it is sought to put “police reports” into a separate category for purposes of pretrial discovery.

Prior to the adoption of Supreme Court Rule 412, it was held that police reports need not be disclosed unless for purposes of impeachment after the witness had testified. (People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499; People v. Savage, 102 Ill.App.2d 477, 242 N.E.2d 446.) In People v. Cagle, 41 Ill.2d 528, 244 N.E.2d 200, a report made by a police officer of his own observations was produced, but the court’s ruling prevented its use for impeachment. Likening the result to the suppression of evidence favorable to the accused as discussed in Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, the court found a violation of due process. In Cagle, the court said that it did not reach the issue which was argued, that restricting the use of police reports to impeachment purposes at the time of trial hindered preparation for trial, and thus violated due process. We may consider that issue in the light of Federal Rule of Criminal Procedure 16(b), which includes:

“Except as provided in subdivision (a) (2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 8 U.S.C. § 3500.”

The cited Federal statute provides that no statement or report in possession of the prosecution shall be the subject of subpoena, discovery or inspection until said witness has testified on direct examination in the trial of the case.

A report of a government agent is a witness statement within the meaning of such rule. (Peek v. United States (9th Cir. 1963), 321 F.2d 934, 5 A.L.R.3d 802; Holmes v. United States (4th Cir. 1959), 271 F.2d 635.) The rule for the production of police reports is the same as that for production of the statements of witnesses. People v. Flowers, 51 Ill.2d 25, 281 N.E.2d 299.

We conclude that the limitations of discovery to impeachment purposes does not violate due process, for the cited statute, sometimes called the Jencks Act, has been held to be constitutional. (Palermo v. United States, 360 U.S. 343, 3 L.Ed.2d 1287, 79 S.Ct. 1217, and Scales v. United States, 367 U.S. 203, 6 L.Ed.2d 782, 81 S.Ct. 1469.) In Scales, the court said that there can be no complaint that defendant has been denied opportunity to examine statements which do not relate to the subject matter of the witnesses’ testimony.

In the context of the argument that “police reports” were statements of witnesses which, without more, should have been supplied upon defendant’s motion under Supreme Court Rule 412, we note that the Committee Comments directed to the Rule (50 Ill.2d R. § 412(a) (i)) state:

“People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1 (1957), and decisions thereunder required the State to tender to defense counsel all such statements when the witness was tendered for cross-examination. Nothing herein changes the types of material that are to be provided; only the time of their disclosure is changed.”

The rule concerned coincides with ABA Standards Relating to Discovery and Procedure Before Trial (§ 2.1), in providing that the prosecution shall disclose the names of witnesses with their relevant written or recorded statements, and grand jury minutes containing relevant testimony of persons whom the prosecution “intends to call as witnesses at the hearing or trial.”

Supreme Court Rule 412 contains no specific reference to police reports distinguishing them from any other material to be produced under the Rule. The plain language, as well as the comment of explanation, disclose that the concept developed in the case law is retained, and that the pre-trial discovery provided is to permit effective cross-examination and possible impeachment rather than to provide an inclusive general survey of prosecution files.

There is, in fact, no issue of the use of “police reports” for purposes of impeachment either of police officers or any other witness in the trial of this case. No police officer testified for the prosecution upon either the facts of the burglary or the arrest of the defendant. The trial court did grant broad discovery, including the statements and substantially verbatim transcripts of oral statements of witnesses and directed the discovery of exculpatory evidence in the possession of the prosecution. We find no error in the denial of defendant’s motion for discovery of “all police reports * *

In People v. Schmidt, 56 Ill.2d 572, 309 N.E.2d 557, it was held that pre-trial discovery under Supreme Court Rule 412 was not available in misdemeanor cases. The discussion in that opinion supports the conclusion that the discovery of police reports under the Rule is for the purpose of aiding the effective cross-examinations or impeachment of witnesses, including policemen, who are to testify.

Section 8 — 5 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 5) provides that no person shall be convicted of both the inchoate offense, conspiracy, and the principal offense. Upon the authority of Supreme Court Rule 366, the judgment of guilt for conspiracy is vacated. People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1.

The judgment of conviction for burglary is affirmed. The conviction of conspiracy is reversed and the judgment of the circuit court as to that offense is vacated.

Affirmed in part, reversed and vacated in part.

SMITH, P. J., concurs.

CRAVEN, J., specially concurs.

Mr. JUSTICE CRAVEN

specially concurring:

I agree with the result reached in this case but I would characterize the failure of the trial court to grant discovery as error. A reversal is not required, only because it can be said that the error was, by the facts upon this record, harmless beyond a reasonable doubt. The police reports, the discovery of which were denied to the defendant, were reports of persons whose names were furnished upon the list of witnesses. Such reports were clearly and expressly within the language of our rules for discovery and were substantial verbatim reports of witnesses. I would affirm the decision of the trial court, noting the error on the discovery ruling.

       The exception stated relates to reports of physical examinations and scientific tests or experiments.

       18 U.S.C. § 3500 “(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald G. Grashoff, Defendant-Appellant.
    (No. 73-152;
    Third District
    July 18, 1974.

      James Brodie, of Pekin, for appellant.
    Jay H. Janssen, Assistant State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Ronald Grashoff, was convicted on three counts of criminal damage to property following a jury trial in the circuit court of Tazewell County. He was sentenced to probation for 2 years and has appealed his conviction. These charges grow out of incidents of vandalism on April 23, 1972, at two high schools and a rental agency in Pekin. The defendant was arrested together with three other persons at about 1:30 A.M. on April 24, 1972, because when stopped by the police bits of rock and concrete were discovered in the car. Since one of the arguments raised on appeal is the sufficiency of the evidence to support the verdict the facts will be discussed at greater length later in this opinion.

The first issue in the case concerns the admission into evidence by the trial court of certain items of physical evidence. The trial court admitted into evidence two cardboard boxes (People’s Exhibits Numbers 1 and 5) containing envelopes of rocks taken from the scenes of criminal property damage and from the car in which defendant was riding just prior to his arrest. People’s Exhibit Number 1 contained three envelopes of rocks (People’s Exhibits Numbers 2, 3 and 4) all of which were admitted into evidence over defense objection. People’s Exhibit Number 5 contained two envelopes (People’s Exhibits Numbers 6 and 7) which were admitted into evidence over defense objection and one envelope (People’s Exhibit Number 8) which was excluded after defense objection.

It is defendant’s contention that it was error to admit the envelopes of rocks into evidence because there was evidence of tampering and of a breach in the chain of custody. The State argues that there was no evidence of tampering and that it was mere speculation that the chain of custody was broken.

Louis Pollock, Pekin Police Officer, testified that he saw People’s Exhibits Numbers 2, 3 and 4 for the first time on April 24, 1972. He stated that he locked them in the evidence locker and that some of them had come open. He testified that a couple of the bags were open when he placed them in the locker and that about 15 officers have keys to the locker. He further stated on cross-examination “I do not know how many rocks were in the bags or if anybody took them out and replaced them. It is possible that the rocks could have been switched.”

Pekin PoHce Officer Donald McAtee testified that on April 25, 1972, lie placed People’s Exhibits Numbers 2, 3, 4, 6, 7 and 8 in a large cardboard container (People’s Exhibit Number 1) and transported them to the Pekin crime lab to Mr. Brent DeWitt. McAtee also testified there were other packages of large manila envelopes inside People’s Exhibit Number 1 in addition to People’s Exhibits Numbers 2, 3, 4, 6, 7 and 8.

Brent DeWitt testified that he received People’s Exhibit Number 1 on April 25, 1972, and that when he opened it on May 22, 1972, he removed approximately 19 envelopes from the box. He testified on cross-examination, “I returned sixteen envelopes in People’s Exhibit No. 1 and there are now only three in there. There should be thirteen more.” DeWitt stated that he placed People’s Exhibits Numbers 6, 7 and 8 and another manda envelope in a cardboard box (People’s Exhibit Number 5) and forwarded them to the Joliet crime laboratory.

James Cerven of the Joliet crime laboratory testified that he received People’s Exhibit Number 5 on May 23, 1972, and that when he opened the Exhibit on May 26, 1972, he recaHed looking at People’s Exhibits Numbers 6 and 7 but did not recall seeing People’s Exhibit Number 8. On cross-examination Cerven testified that there were three envelopes in People’s Exhibit Number 5 when he opened it but that he did not see where the third one is now “Specifically, I do not recall seeing People’s Exhibit Number 8.”

The State cites People v. Harris, 17 Ill.2d 446, 161 N.E.2d 809, in support of its contention that it was not error to admit the envelopes of rocks into evidence. Harris was a prosecution for unlawful possession of narcotics. Defendant in Harris argued that the package taken from him was not shown to be the same one as that tested by the police chemist and and that no field test was made of its contents. The court rejected defendant’s contention in the foUowing language, “The officers testified that the package was given to Sims, who placed it in a safe, initialed it, and the following afternoon delivered it to the chemist. There is nothing in the evidence to indicate that it was tampered with, or that a different package was substituted. In the absence of evidence to the contrary, the facts testified to are enough to show the contents were not disturbed.” The State also cites People v. Banks, 17 Ill.App.3d 512, 308 N.E.2d 247, which in turn relied on People v. Wrona, 7 Ill.App.3d 1, 286 N.E.2d 370, and People v. Scott, 3 Ill.App.3d 493, 279 N.E.2d 19, in support of the principle, “in the absence of any indication or suggestion of substitution, or alteration or other form of tampering * * * reasonable protective techniques are sufficient.” In the present case it cannot be said that there was an absence of any indication or suggestion of substitution or alteration or other form of tampering.

In applying the foregoing principles we believe the objections to Exhibits 1, 2, 3 and 4 should be treated differently than those to Exhibits 5, 6 and 7. As noted above, Exhibit 1 when originally delivered to DeWitt, the officer in charge of the Pekin Crime Laboratory, contained 19 envelopes or sacks of rocks when opened on May 22 and then when Exhibit 1 was returned to the evidence locker it contained 16 envelopes or sacks of rocks (three exhibits, later identified as Exhibits 6, 7 and 8 and one other manila envelope had been withdrawn and sent to the Joliet Crime Laboratory). However, when Exhibit Number 1 was thereafter opened only three envelopes remained. No explanation was offered and no one seemed to know what may have happened to the 13 exhibits. It is therefore undisputed that Exhibit Number 1 and its contents were not in the same condition when opened by the police custodian and the changed condition was unexplained. Under such circumstances there can be no doubt that the integrity of the evidence was not preserved. Additionally, it should be observed two of these exhibits (2 and 4) had unexplained openings in the bottom of the envelopes. This rendered doubtful any conclusion that the contents removed from the envelopes at the time of trial were the same as originally placed in the envelopes and in fact there was no such testimony offered by any of the witnesses who may have observed the contents from time to time. This is of particular significance in view of the unexplained disappearance of other envelopes in the box.

However, the effect in the unexplained change in condition in an exhibit should depend on the purpose for which the exhibit is introduced and in our view the only purpose of introducing Exhibits 1, 2, 3 and 4 was to show that the windows had been broken by foreign objects. This was not a disputed issue in the case and since the State’s own witness testified there was no similarity between Exhibits 2, 3 and 4 and those later discovered in the car, such exhibits could have no tendency to prove the identity of the culprits, the only disputed issue in the case. DeWitt testified that he examined the 19 envelopes of rocks contained in Exhibit 1 and that as a result of his visual inspection he concluded that there were similarities only between those later identified as Exhibits 6 and 7. Under the facts of this case we therefore conclude that the unexplained change in condition of Exhibit 1 and its contents was not prejudicial to the defendant.

This brings us to a consideration of Exhibits 5, 6 and 7. Again it seems undisputed that Exhibit 5, the container which DeWitt testified was sent to the Joliet crime laboratory containing Exhibits 6, 7, 8 and an unidentified manila envelope, was not in the same condition when received by the Joliet crime laboratory or when later returned by the crime lab to the Pekin Police Department. Thus according to DeWitt there were four envelopes in Exhibit 5 when mailed to the laboratory but according to Cerven there were only three exhibits in the box when he received it and Exhibit 8 was not one of those received. To compound the confusion Cerven s testimony relates to tests performed on only two samples of concrete. The court excluded the exhibit later identified as Number 8 agreeing that its integrity had been impaired by its unexplained appearance, disappearance and reappearance. Not only did such confusion affect the integrity of Exhibit Number 8 but in our opinion the circumstances impaired the integrity of Exhibits 5, 6 and 7 as well. We do not see how the testimony supports the conclusion that pieces of concrete discovered at the scene of the windows broken at the rental agency and the rock discovered in the car were actually the exhibits claimed to be 6 and 7 and not some other pieces of concrete. Since the testimony of Cerven did indicate some similarity, although not conchn sive, between the samples examined, this testimony did have a tendency to suggest that defendant was the culprit and consequently the erroneous admission of these exhibits was prejudicial.

The next issues relate to the sufficiency of the evidence and propriety of giving an accountability instruction. It is our conclusion that the evidence in this case was insufficient to support the verdict. The instruction to the jury was as follows,

“A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct. A person is responsible for the conduct of another person when either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets or attempts to aid the other person in the planning or commission of the crime.”

This is Illinois Pattern Jury Instruction, Criminal, 5.03, modified. Al- . though no issue is raised on this appeal concerning the propriety of the modification to Pattern Jury Instruction 5.03 we express some doubt as to the advisability of the modification made since even though it adds some statutory language the modification has a tendency to obscure rather than clarify or delineate the principle of accountability.

Before discussing the sufficiency of the evidence it should be mentioned that defendant did raise an issue as to the failure of the trial court to submit an issues instruction embodying any theory of accountability. We agree that an issues instruction should be submitted with the accountability instruction. (People v. Hatfield, 5 Ill.App.3d 996, 284 N.E.2d 708; People v. Lehner, 335 1ll. 424, 167 N.E.20.) However, as the State points out, claim of error in the failure to give an instruction is waived where counsel did not tender an instruction. (People v. Holt, 7 Ill.App.3d 646, 288 N.E.2d 245, People v. Jones, 6 Ill.App..3d 669, 286 N.E.2d 87.) The failure in the present case to give an issues instruction might serve to explain some of the confusion of the jury in applying the law of accountability to the facts in this case.

In order for a person to be legally accountable for the conduct of another the State must prove beyond a reasonable doubt: One, that defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of an offense; two, that participation took place either before or during the commission of the offense and three, that it was with the concurrent specific intent to promote or facilitate the commission of the offense. Section 5 — 2(c) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5—2(c)), People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284, People v. Tillman, 130 Ill.App.2d 743, 265 N.E.2d 904, People v. Adams, 8 Ill.App.3d 62, 289 N.E.2d 53, and People v. Kriston, 12 Ill.App.3d 18, 297 N.E.2d 206.

Citing People v. Williams, 104 Ill.App.2d 329, 244 N.E.2d 347, the State argues that proof of acts in furtherance of a common design or purpose to commit a crime need not be supported by words of agreement but may be drawn from the circumstances surrounding the commission of the act by the group. We agree with the principle announced in the Williams case but the facts in that case are not analogous to the facts in the present case.' In Williams the defendant was positively identified as one of three men who came out of the victim’s apartment at about 2:30 in the morning after the witness was awakened by screams Rom the victim’s apartment which was located next to hers.

The State further argues that defendant’s presence under the circumstances here proved aiding and abetting on his part and cites People v. Winchell, 100 IIl.App.2d 149, 241 N.E.2d 200, for the proposition that if proof shows defendant was present at the commission of the crime without disapproving or opposing it the trier of fact may consider such conduct in connection with other circumstances and reach a conclusion that such person assented to the commission of crime and aided and abetted the crime. However, in the Winchell case defendant was actuaHy present in the car at the scene of an armed robbery of a gas station. He did nothing at the gas station to attempt to stop the robbery nor did he attempt to get out of the car. There was evidence that defendant actually counted the proceeds of the robbery and that he had hidden the weapons used in the robbery.

Both the Williams and Winchell cases can be distinguished from the present case on the basis of the facts. A significant difference between the facts in this case and those in the Williams and Winchell cases is the absence of evidence in the instant case that the defendant was present at the scene of the offenses at the time they occurred. The State has argued that defendant was a passenger in a car seen at the scene of the crimes.

The custodian at the west campus of Pekin High School testified that after being awakened by what he thought was the noise of breaking glass he observed a car coming down the street which was a medium size car, white on the top dark on the bottom. This witness neither identified the defendant as being in the car at the time nor was he able for that matter to even indicate anything about the number or description of the occupants of the car. This was about 11:15 or 11:30 on the evening in question.

Another witness noticed broken glass in an ice cream parlor about 11:30 or 12 o’clock. He came back and sat in a lot across the street and about 12:30 A.M. observed a white over maroon 1968 or 1969 Camaro with four male occupants. He said his attention was drawn to the car because he had overheard the police say it was a maroon colored car which had broken the window out. At this time he wrote down the license number and reported it to the police. This witness was in the glazing business and was waiting for the owner of the store to appear in order to get the contract for replacing the glass. His observation of the car took place nearly 1 hour after he noticed the window in the door of the store had been broken. Although he referred to four male occupants he did not identify the defendant as being one of the occupants.

Another State's witness, the director of building and grounds of Pekin High School, testified that on the night in question he arrived at the west campus at about 11:45 and observed broken glass. At about 12:30 he arrived at the east campus and observed broken glass and remained there for about 2 hours. During this 2 hours he stated he observed a light over dark vehicle drive by the east campus and observed the same vehicle 30 seconds later going in the opposite direction. He made this observation sometime more than an hour after the vandalism was discovered. He stated he also observed other vehicles on the road that night. The testimony of this witness is silent concerning any description of the occupants of the car.

Kenneth Flynn, Pekin Police Officer, stopped the car in which the defendant was a passenger at about 1:30 A.M. He had been informed to be on the lookout for a white over maroon Camara bearing a given Illinois license plate number. The license plate number was given to the police by the man who had noticed the broken glass at the ice cream parlor and had come back and noticed the car about an hour later. Officer Flynn testified that when the front door on the drivers side was opened he noticed a large chunk of concrete between the door and the seat. Another Pekin police officer testified that at the same time he observed the rock between the drivers seat and the door and that on top of the right rear seat he saw pebbles.

The State in summing up its accountability argument urges “Thus, the facts that all four individuals were being tried separately, the defendant was present at the scene of the crime, the defendant was in a car containing rocks which were later found to have the same chemical composition as rocks that broke glass in the A-Z Rental Building * * * and the defendant offered no proof that he opposed the rock-throwing support the accountability instruction." The State has failed to prove that defendant was present in the car at the time of the rock throwing if in fact the rock throwing was committed by someone in the car. We fail to see how defendant’s presence in a car some 2 hours after the occurrence of the vandalism is evidence that the defendant was present in the car 2 hours earlier even assuming the car in which defendant was a passenger was involved in the criminal activity. If the evidence fails to prove defendant’s presence at the scene of the offense at the time of its occurrence no question can arise as to whether defendant did oppose the rock throwing. As we have heretofore indicated the evidence relating to the similarity of the rocks was inadmissible but even if this evidence was admissible it had no tendency to establish either defendant’s presence at the scene of the offense or his participation therein.

For the foregoing reasons, the judgment of the circuit court of Taze-well County is reversed.

Judgment reversed.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Allan Kadlec, Defendant-Appellant.
    (No. 73-172;
    Third District
    June 28, 1974.

      Stephen Hurley, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    William McMenamin, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Allan Kadlec, was convicted of delivery of a controlled substance on October 10, 1972, after a jury trial. He was sentenced by the Circuit Court of Will County to a term of 8 to 20 years. He appeals from that judgment contending:

1. That the trial court committed error in denying his motion for substitution of judge.
2. That the trial court erred in refusing to instruct the jury on entrapment.
3. That the trial court erred in refusing to allow the jury to determine the weight of the controlled substance which was delivered.
4. That the conviction is based on a statute which violates due process and equal protection of the law.
5. That the sentence is excessive and should be reduced.

On January 20, 1972, the defendant sold 300 amphetamine tablets to Agent Joseph Gryz of the Illinois Bureau of Investigation. Gryz told Kadlec that he would want to make other purchases in the future, to which Kadlec replied that he could be reached at a new address and the same telephone number. On January 28, 1972, Gryz purchased 1000 amphetamine tablets from Kadlec and inquired about 3 to 4000 tablets in the future. On February 3, 1972, Kadlec advised Gryz that he would attempt to get the pills and asked Gryz to call back in a week. On February 10, 1972, Kadlec advised Gryz that his “connection” had been arrested and that he would check for other sources. On February 17, 1972, the agent again telephoned defendant and was told by defendant that he had been arrested the prior day and that he would not be dealing for a while until things cooled off.

On February 23,1972, defendant called the agent and left his telephone number. The agent called back and defendant informed him that he could obtain the quantity and a sale was arranged for the following day.

Agents met at IBI headquarters on the morning of February 24, 1972. Serial numbers of $500 of advanced funds were recorded and the money dusted with fluorescent powder. Surveillance teams were arranged. It was anticipated that defendant would go to his supplier because Gryz would not telephone before going to Kadlecs house as agreed.

At 11:55 A.M. the agent arrived at the Kadlec house and he and defendant went into the basement. The defendant then left the basement and drove to the Marquis residence. Five minutes later he returned and gave the agent a paper bag which contained 4000 tablets of amphetamine. Agent Gryz gave the defendant $460. Gryz departed and defendant went back to the Marquis residence.

Agents Gryz, Petersik and Schissel went to the door through which Kadlec had entered the Marquis house. They were met at the doorstep by Marquis and Agent Petersik, who could see the defendant through the open door, led Marquis back inside the house and arrested both Marquis and the defendant. The money was recovered from Kadlec and a black light was shone on the hands of both men, revealing traces of fluorescent powder. While in the Marquis residence, Agent Petersik found a plastic bag containing about 400 amphetamine tablets.

The defendant and Marquis were taken to the Will County Jail. There the agents processed the evidence. Both the tablets which were obtained through the purchase and those found at Marquis’ house were processed at the same table. The agents testified that the pills were not commingled.

The amphetamine was taken to the Joliet Crime Lab where Sandra Rodeghero, a specialist, tested it.

On May 10, 1972, an indictment was returned by the Grand Jury charging Kadlec and Marquis as co-defendants on the charge of delivering more than 200 grams of a controlled substance and charging Marquis with a separate count of possession. A severance was granted on motion of Kadlec. On September 7, 1972, Marquis was brought to trial and he waived jury.

On September 22, 1972, defendant testified on behalf of Marquis. On the same day Judge Pistilli found Marquis guilty of both charges. On October 3, 1972, defendant moved for a substitution of Judge Pistilli. The motion was denied. Defendant then revoked his jury waiver and was tried by a jury.

During the testimony of the first state witness the judge informed the defense attorney that he was not going to instruct on entrapment.

As to defendant’s first contention, the law concerning substitution of judge in criminal cases is dealt with in section 114 — 5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 5). The motion for substitution in the instant case was filed more than 10 days after the case had been placed on the judge’s trial call. The petition came too late to qualify under sections 114 — 5(a) or (b).

Section 114 — 5(c) provides as follows:

“In addition to the provisions of subsections (a) and (b) of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.” (Emphasis supplied.)

The motion in the instant case was neither supported by affidavit nor verified in any fashion. In a similar case, People v. West, 80 Ill.App.2d 59, 63, the court said “* * * the trial court was justified in denying them.” While it is true that lack of compliance might have justified a refusal of the court to entertain the motion, the deficiencies in the motion were not raised below and the procedural requirements of the statute appear to have been waived by court and counsel alike. See People v. Hicks, 44 Ill.2d 550, 556.

The defendant was given a hearing on the merits of the motion, he presented no evidence but chose to rely on argument of counsel. The duty imposed on the trial judge by section 114 — 5(c) is to afford an opportunity to present evidence, not to insure that evidence is presented. People v. Wolfe, 124 Ill.App.2d 349.

Defendant tendered an instruction on entrapment which was refused on the ground that the testimony did not support the defense.

The question of whether there was illegal entrapment is generally for the jury, certainly at least, where the testimony of accused on its face, tends to support this defense or the evidence with respect to this defense is conflicting. But where the uncontradicted evidence discloses no entrapment it is not necessary to submit the matter to the jury. People v. Cash, 26 Ill.2d 595.

Entrapment is defined in section 7 — 12 of the Criminal Code. The Committee Comments thereto contain the following statement:

“* * * recognizing three principal elements:
(1) The idea of committing an offense originates, not with the suspect, but with the enforcing authorities, who
(2) actively encourage the suspect to commit the offense,
(3) for the purpose of obtaining evidence for his prosecution. The first element involves two inquiries: Does the suspect originate the idea of committing this particular offense; and is he engaged in a course of conduct involving other offenses of the same type, or other acts of the same continuing offense if dealing with other persons? Even if the answer to the first inquiry is negative, the person should not be considered .worthy of protection if the answer to the second inquiry is positive, since he is not ‘an innocent person, induced to commit an offense of a type which he would not otherwise commit.”

It can be seen that there is no entrapment when the defendant was already engaged in an existing course of similar criminal conduct for the reason that he is not an “otherwise innocent person.” United States v. Jones, 302 F.2d 46; People v. Cooper, 17 Ill.pp.3d 934, 308 N.E.2d 815, 818.

In the instant case the defendant’s testimony showed that he had made two prior sales to the agent, that his supplier had been “busted” that he was “just going to stick with marijuana and hash — wasn’t going to sell any more speed or anything like that,” and that he had sold to over 300 other people over the past year and a half. The defendant was engaged in an existing course of similar criminal conduct. He was not an “otherwise innocent person.” In other words, where a person is regularly engaged in doing certain prohibited acts such as unlawfully selling narcotics, and has done such acts on his own initiative, it is no defense for him to show that for the purpose of bringing him to justice, an officer of the law directly or indirectly occasioned the commission of the particular act charged. (21 Am.Jur.2d Criminal Law sec. 145.) The trial court properly refused to instruct the jury in regard to the law of entrapment.

The defendant contends that the trial court committed error by refusing to allow the jury to determine the weight of the controlled substance delivered for the reasons that the issue was raised on trial and further that when the grade or degree of the offense depends on the quantity, the specific amount (over 200 grams) is an essential element going to the substance of the felony.

People’s instruction on the issues that the State must prove was IPI— Criminal 17.02 modified. It was objected to by the defense on the ground that it did not list the weight as an element of the offense as charged in the indictment. The People argued that weight is a material element for sentencing but not for the commission of the offense. The trial court agreed.

The defense tendered a form of verdict which would have allowed the jury to find the defendant guilty of delivery of less than 200 grams. This was refused on the ground that weight was not an issue.

The form of verdict given did not incorporate a finding as to weight.

Under the former Narcotic Drug Act the weight or quantity of drugs was normally not an issue — there was only one grade of offense. (People v. Dollen, 2 Ill.App.3d 567, 574.) This was reflected in IPI — Criminal Narcotics chapter 17.00.

Since publication of IPI — Criminal, the Narcotic Drug Act has been repealed and since August 16, 1971, the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56%, par. 1100 et seq.) has become law. The applicable portion of that Act (par. 1401) was as follows:

“* * * it is unlawful for any person knowingly to * * 6 deliver * * * a controlled substance. Any person who violates this Section with respect to:
(а) the following controlled substances and amounts * * * is guilty of an offense and shall upon conviction be imprisoned in the penitentiary for not less than 10 years nor more than life, * * *.
(б) 200 grams or more of any substance containing amphetamine # # #
(8) (d) any other amount of a controlled substance classified in Schedule III is guilty of an offense and shall be imprisoned in the penitentiary from 1 to 8 years * * (Emphasis added.)

It may thus be seen that the highest grade or degree of this offense depends on the amount of 200 grams or more. 200 grams or more, then equalled a 10-year minimum sentence. Any amount less than 200 grams then equalled a 1-year minimum sentence. The former is now a Class 1 felony, the latter now a Class 3 felony.

The new 28 C.J.S. Drugs and Narcotics Supplement (issued April 1974), section 162, page 239, concludes, “* * * the specific amount possessed is an essential element going to the substance of the felony.”

No recent Illinois case has come to our attention. However, People v. Johnson, 133 Ill.App.2d 818, would imply that the quantity delivered is a fact to be established when conviction of the highest degree of the crime is sought. In larceny cases where the grade or degree of the offense depends on value, value then becomes a material fact essential to establish the grade or degree of the offense and it has been stated that the jury should incorporate its finding in the verdict. (People v. Harden, 42 Ill.2d 301, 306.) Harden held, however, that where the burden of proof instruction contained the issue of value it was sufficient. Also see People v. Kelly, 66 Ill.App.2d 204.

We believe that where, as here, a defendant is charged with knowingly delivering more than 200 grams of a substance containing amphetamine the quantity of 200 grams or more is an essential element going to the substance of the charge. It is an issue in the case to be decided by the jury under proper instructions.

The crime with which we are here concerned is that of “[Ujnlawful delivery of a controlled substance.” The crime is committed by the delivery of a controlled substance regardless of the amount thereof. The particular amount of the controlled substance relates only to the extent of the penalty which may properly be imposed.

When the State seeks the maximum penalty permitted by the statute, by alleging in the indictment the delivery of 200 grams or more (as in this case) it becomes incumbent not only to prove delivery of 200 grams or more but the issue (unless waived) must be presented to the jury.

Normally it is reversible error for the trial court to assume in the instructions that any fact necessary to establish the guilt of the accused has been proved, and so relieve the jury from its consideration, unless the same is expressly or tacitly admitted by the defendant. People v. Wilson, 84 Ill.App.2d 269, 275.

Other than “Function,” “Cautionary,” “Burden of Proof Generally,”' “Types of Evidence,” only the following instructions were given to the jury:

“The defendant is charged with the crime of Unlawful Delivery of a Controlled Substance. The defendant has pleaded not guilty. A person commits the crime of violating the Controlled Substances Act who knowingly delivers a Controlled Substance, to-wit: amphetamine.
To sustain the charge of violating the Controlled Substances Act, the State must prove the following proposition:
That the defendant knowingly delivered a substance containing amphetamine.
If you find from your consideration of all the evidence that this proposition has been proven beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

The jury returned the following verdict:

“We the jury find the defendant Allan Kadlec, Guilty of Unlawful Delivery of a Controlled Substance.”

We are of the opinion therefore that the record shows defendant to have been convicted of “Unlawful Delivery of a Controlled Substance.” The record, however, affords no basis for sentence for the higher grade of the offense.

Defendant has asked that we reduce his sentence under the powers given us by Supreme Court Rule 615(b)(4). Accordingly, we reduce the sentence herein to a minimum of 2 years 8 months and a maximum of 8 years.

Defendant also contends that he was convicted under a statute which violates due process and equal protection of the law. The question of the constitutionality of a statute is properly preserved for review only when it has been raised and passed upon by the trial court. Since this was not done in the case at bar, the question is not subject to review in this appeal. People v. Amerman, 50 Ill.2d 196, 197; People v. Cooper, supra.

As modified, the judgment in aU other respects is affirmed.

Affirmed as modified.

SCOTT, P. J., and ALLOY, J., concur.

       Paragraph 1208(b)(1) includes amphetamine.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willard Bullion, Defendant-Appellant.
    (No. 73-333;
    Fifth District
    July 25, 1974.

      Robert E. Farrell and Brenda E. Richey, both of the State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of St. Clair County revoking his probation and sentencing him to the penitentiary for a minimum of 5 and a maximum of 15 years.

Defendant pleaded guilty to the crime of burglary and was sentenced to serve 2 years on probation with permission to live in Missouri under the supervision of the probation authorities of that State. Subsequently, the State’s Attorney of St. Clair County filed a petition to revoke defendant’s probation alleging that defendant had participated in the commission of a burglary while in Missouri and had escaped from law officials in Missouri after being arrested for burglary.

Defendant contends (1) that he should be given credit for time served on probation, and (2) that the sentence imposed was excessive.

At the time of the defendant’s guilty plea there was no requirement that, when sentence is imposed after probation revocation, credit must be given for time spent on probation. At the time that probation was revoked, however, the Unified Code of Corrections provided:

“Time served on probation or conditional discharge shall be credited against a sentence of imprisonment or periodic imprisonment.” Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 6 — 4(h).

The State maintains that section 5 — 6 — 4(h) of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 6 — 4(h)) is not applicable in the instant case because the original burglary conviction had reached “final adjudication” before the Code became effective. The argument lacks merit. The sentencing provisions of the Code are applicable if an appeal from a probation revocation was pending when the Code became effective even though the conviction had been “finally adjudicated.” People v. Kelly, 16 Ill.App.3d 559, 306 N.E.2d 638; People v. Decker, 15 Ill.App.3d 230, 304 N.E.2d 99; People v. Lewis, 14 Ill.App. 3d 1083, 303 N.E.2d 424; People v. Gregory, 16 Ill.App.3d 204, 305 N.E. 2d 549.

With reference to his second contention, defendant contends the trial court erred in not complying with the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8 — 1(c)(3)) and that the trial court actually punished him for his subsequent conduct rather than for his original offense.

The original conviction in this case was for the offense of burglary. Defendant was sentenced on March 20, 1973, after the effective date of the Unified Code of Corrections (Ill. Rev. Stat, 1972 Supp., ch. 38, par. 1001 — 1 — 1 et seq.). Burglary is a Class 2 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 19 — 1(b)), and the Code of Corrections specifically provides that:

“(3) for a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court.” Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8 — 1(c) (3).

It is therefore obvious that a minimum term of 1 year for a Class 2 felony is mandated under section 5 — 8 — 1(c)(3) unless the court sets a higher minimum after considering the nature and circumstances of the offense and the history and character of the defendant. The Council Commentary explaining the purpose and intent of this section states:

“The Judge is required to take regard of the nature and circumstances of the offense and the history and character of the defendant before setting minimum terms above the norms established by the Legislature in the statute * * S.H.A. (1973) ch. 38, § 5 — 8 — 1, at 461.

It is well settled in Illinois that when a defendant who has been convicted of an offense is admitted to probation, and that probation is subsequently revoked, the judge may resentence the defendant to any sentence that would have been appropriate for the original offense. (People v. Livingston, 117 Ill.App.2d 189, 254 N.E.2d 64.) The court may not, however, use this sentence to punish the defendant for the subsequent criminal activity that lead to the revocation. (Livingston, supra; People v. Turner, 129 Ill.App.2d 24, 262 N.E.2d 379.) The difficulty involved in this procedure has been discussed by the appellate court:

“Few tasks are more difficult for a trial judge than the sentencing of a probationer. The decision to sentence always involves the finding that the probationer violated the trust placed in him when he was given the benefits of probation. The breach of trust, however, cannot overshadow the statutory mandate that the probationer be sentenced for the crime of which he was convicted, not for the acts of delinquency which may or may not justify revocation of probation.” People v. Livingston, 117 Ill.App.2d 189, 192.
“In a probation revocation hearing two factors are important. First, the nature of the acts which lead to the revocation hearing and second, the nature of the offense of which the probationer was convicted. The first factor is relevant in determining whether probation should be revoked. The second is relevant to the sentence to be imposed, if probation is revoked.” People v. Carney, 3 Ill.App.3d 24, 26.

In the present case, this would mean that the sentence given the defendant should have been for the original burglary conviction, and not to punish him for any subsequent conduct that occurred in Missouri. If his subsequent conduct constituted other offenses, he should have been tried for those offenses and sentence imposed for them under “orderly criminal processes.” People v. Tempel, 131 Ill.App.2d 955, 959, 268 N.E.2d 875.

Defendant was 18 years of age at the time of his arrest. He lived at home with his parents and was attending a GED program to complete his high school education. When he entered his plea of guilty to the charge he admitted that a friend and he had broken into the concession stand at a drive-in theatre and that he had taken about 55 packs of cigarettes. There appears to have been no weapons or violence involved in the offense. He had no prior record of arrests, and, as the State’s Attorney informed the court, he co-operated fully with the police following his arrest. The conclusion is inescapable that the trial court punished defendant for his subsequent conduct in addition to his original offense.

Since the trial court made no findings to justify a higher minimum term than that caffed for by the statute, we therefore reduce the sentence in this case to a minimum of 1 year and a maximum of 3 years in the penitentiary. We also direct that defendant shall be given credit on his sentence for the time served on probation.

Judgment affirmed as modified.

CARTER and CREBS, JJ., concur.


author: Mr. JUSTICE CARTER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Rodely, Defendant-Appellant.
    (No. 74-12;
    Fifth District
    July 23, 1974.
    Robert E. Farrell and Lynn Sara Frackman, both of the State Appellate Defenders Office, of Mt. Vernon, for appellant.
    Howard L. Hood, State’s Attorney, of Murphysboro, for the People.
   Opinion by

Mr. JUSTICE CARTER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mickey Joe Wright, Defendant-Appellant.
    (No. 73-261;
    Fifth District
    July 23, 1974.

      August J. Keller, of Belleville, for appellant.
    Douglas Marti, State’s Attorney, of Greenville, for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant was charged by criminal complaint with the offense of burglary. On April 4, 1973, the defendant, represented by retained counsel, waived a prehminary hearing and a grand jury indictment, entered a plea of guilty, and requested probation. Defendant waived a presen-tence investigation, and a probation-sentencing hearing was commenced. After several witnesses were heard, the defense counsel recommended a sentence of probation for 2 or 3 years with the conditions that periodic imprisonment of 1 day per week for 6 months be imposed and restitution be made. The State’s Attorney recommended a sentence of probation for 2 years with the same two conditions and with the additional condition that the defendant pay a $500 fine. Nothing was said during this hearing which indicated that plea negotiations had occurred.

The probation-sentencing hearing was continued on April 24, 1973, on which date the court on its own motion ordered a presentence report, and the hearing was continued until May 31, 1973. At that time the defendant’s attorney filed a motion to withdraw a plea of guilty, based upon the allegations that plea negotiations had taken place and that the defendant pleaded guilty because he thought he would be placed on probation. This was the first time that there had been any indication to the court that the parties had engaged in plea negotiations. The State’s Attorney and defendant’s attorney agreed that the State’s Attorney had promised to recommend a sentence of a period of probation. Defendant’s attorney concurred in that interpretation of the negotiations and did not allege that the State’s Attorney had guaranteed that probation would be granted. The State’s Attorney stated:

“I am afraid, however, that I did not emphasize clearly enough to Mr. Classen that my recommendation would not be binding on the Court. * * * At no time did I tell Mr. Classen that my recommendation would be binding on the Court. On the other hand, in view of what has come up, now I wish I had emphasized the fact that it was only a recommendation and that the Court might not go along with it, which I did not do, and in view of that and in view of the fact that I think that my recommendation is the very thing that has induced this plea, I am not going to oppose this Motion in the interest of fairness and justice.”

The court then denied the motion to withdraw the guilty plea, and sentenced defendant to a term of 3 to 9 years in the penitentiary.

Defendant asserts that when a negotiated plea includes a promise by the State to recommend a sentence, the defendant must be permitted to withdraw his guilty plea if the court does not accept the State’s recommendation. In United States ex rel. Culbreath v. Bundle, 466 F.2d 730 (1972), the United States Court of Appeals for the Third Circuit stated at page 735:

“There is no absolute right to have a guilty plea accepted. However, if a judge ultimately determines that the interest of justice would not be served by accepting the Government’s recommendation made pursuant to such agreement the defendant should be permitted to withdraw his guilty plea, particularly where, as here, there is no Government claim of prejudice or harm.”

Illinois reviewing courts have not agreed, however, that a guilty plea may be withdrawn whenever the State’s Attorney’s recommended sentence was not accepted. It is well settled that a prosecutor’s sentencing recommendation is not binding upon the court. (People v. Baldridge, 19 Ill.2d 616, 169 N.E.2d 353; People v. Goodman, 2 Ill.App.3d 584, 277 N.E.2d 136.) If a promise by the State’s Attorney is kept, a guilty plea and resulting conviction are valid even though the promise had induced the plea. (People v. Joynt, 46 Ill.2d 321, 263 N.E.2d 46.) If a prosecutor fulfills a promise to recommend a certain sentence after a defendant pleads guilty, the plea is not rendered involuntary by the fact that the court imposes a more severe sentence. (People v. Kessler, 41 Ill.2d 501, 244 N.E.2d 142.)

However, the instant case must be reversed for another reason. Even if the only promise made by the State's Attorney was to recommend a sentence and the defendant was never told that the promise was not binding on the court, it cannot be said that the defendant’s guilty plea was truly knowing and voluntary.

The defense attorney informed the court that, even though the prosecutor’s only promise was to recommend a sentence, he believed that the plea was binding upon the court. It is obvious from a reading of the entire record that the defense counsel was not accustomed to handling criminal eases in which the defendant pleaded guilty. The fact that counsel did not inform the judge at the guilty-plea proceeding that negotiations had taken place is an indication of his lack of expertise. It is also relevant that the State’s Attorney did not oppose the motion to withdraw the guilty plea. He informed the court that, when negotiating the plea, he may have misled defense counsel by failing to state that his sentence recommendation would not be binding upon the court. Considering all these factors, it seems very probable that the defendant truly believed that he would necessarily receive the sentence recommended by the State.

It is well established that a motion to withdraw a plea of guilty should be allowed upon a showing of misapprehension of the facts or of the law or of any misrepresentation by a person having apparent authority. (People v. McKirdie, 45 Ill.2d 300, 259 N.E.2d 16; People v. Walston, 38 Ill.2d 39, 230 N.E.2d 233; People v. Morreale, 412 Ill. 528, 107 N.E.2d 721; People v. Bartholomew, 9 Ill.App.3d 624, 292 N.E.2d 506; People v. McNair, 133 Ill.App.2d 832, 272 N.E.2d 286.) In Walston the defendant pleaded guilty and requested probation. At the sentencing hearing the prosecutor opposed probation and recommended a severe sentence. The defendant then moved to withdraw his guilty plea. The court denied the application for probation, sentenced the defendant to 3 to 10 years and set the motion to vacate the plea for a hearing at a later date. On that date the defendant submitted an affidavit alleging that he was innocent and that he pleaded guilty only because he thought he would, be placed on probation. The public defender who had represented the defender at the guilty-plea proceeding sought to testify, but the court refused to hear the testimony, and the defendant’s motion was dismissed. The AppeHate Court for the First District affirmed this action. The Illinois Supreme Court reversed the decision and, quoting from People v. Morreale, 412 Ill. 528, 531-32, stated:

“Permission to withdraw a plea of guilty and enter a plea of not guilty is a matter within the discretion of the court, yet it is a judicial discretion which should always be exercised in favor of innocence * * *. Where it appears that the plea of guHty was entered on a misapprehension of the facts or of the law, or in consequence of misrepresentations by counsel or the State’s Attorney or someone else in authority, * * * the court should permit the withdrawal of the plea of guilty and allow the accused to plead not guilty.” 38 Ill.2d 39, 42.

We feel that under the above authorities the defendant in this case should have been permitted to withdraw his plea of guilty. Accordingly, we reverse and remand with directions to permit the defendant to withdraw his plea of guilty and plead anew.

Reversed and remanded, with directions.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Meredith, Defendant-Appellant.
    (No. 73-6;
    Fifth District
    July 24, 1974.
    Robert E. Farrell, Richard E. Cunningham and Timothy F. Flynn, all of the State Appellate Defender’s Office, of Mt. Vernon, and Robert Wagman, Senior Law Student, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahlmann, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion *oi the court:

Defendant, Charles Meredith, was charged with the offense of unlawful sale of a narcotic drug. Pursuant to a plea agreement he pleaded guilty in the Circuit Court of St. Clair County to the lesser charge of unlawful possession of a narcotic drug. He was sentenced to serve a minimum of 5 and a maximum of 6 years.

There was no direct appeal taken from this sentence. On March 25, 1972, the defendant filed a post-conviction petition alleging that the trial court had not properly admonished the defendant on the consequences of a guilty plea and that he had not knowingly pleaded guilty. A hearing was held on June 26, 1972, and the post-conviction petition was denied. It is from that denial that defendant has appealed.

On May 17, 1971, defendant, represented by the public defender, appeared in court and the following hearing occurred:

“State’s Attorney: Your honor, this is a case where the indictment charged the Sale of Narcotic and at this time the State would move to reduce the charge to that of Possession.
Defense Counsel: He advised me that he wishes to change his plea of not guilty which was entered at the time of arraignment and plead guilty to the reduced charge of Possession.
The Court: The court will accept the plea to the reduced charge of Possession. You understand that you could have a trial by jury or a bench trial, either way, and if found guilty a sentence could be imposed of not less than two years nor more than ten years in the Illinois State Penitentiary at Menard Illinois.
Defense Counsel: Your honor, I have advised him of that, of his right to trial by jury, of his right to have witnesses and the sentence involved.
The Court: Is he asldng probation?
State’s Attorney: No, your honor, the State has agreed to — I would suggest to the court a sentence of not less than five years nor more than six years.
The Court: Do you fully understand this, that you are entitled to a trial by jury? And do you understand that your counsel and the State have negotiated in consideration of your plea of guilty?
Defendant: Yes sir, I understand it.
State’s Attorney: Your honor, this defendant was associated with one Willie Kennel — it was the premises on 5th Street in East St. Louis, the Federal Bureau of Investigation had under surveillance for some time and this culminated in a search warrant raid. Tire raid was joined in by the Sheriff and local police. Sales transaction was interrupted at the time, with one Willie Kennel, the co-defendant in possession of a quantity of substance to be heroin and it is recommended to the court that a sentence be imposed of not less than five nor more than six. Co-defendant, Willie Kennel received five to 10 years and he had a previous conviction in this court. The State would move at this time for a sentence of 5 to 6.
The Court: Alright. It is hereby ordered that you be sentenced to not less than five years and not more than six years to the Illinois State Penitentiary at Menard, Illinois. You have a right to appeal this in 30 days.
Defense Counsel: Your honor, we would request to stay the mit-timus for 30 days to allow time for the defendant to get his affairs in order.
The Court: Alright Mr. Constance, he may have until June 17, 1971. That’s 30 days, he must be here on that date. Mittimus will be stayed until that date.”

A petition in a post-conviction proceeding must make a showing that the petitioner’s constitutional rights have been violated, and it is not sufficient that there be a mere allegation arriving at the conclusion that such rights have been violated. People v. Ashley, 34 Ill.2d 402; 216 N.E.2d 126; People v. Durham, 10 Ill.App.3d 911, 295 N.E.2d 298.

In People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318, our supreme court stated in reference to the case of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709:

9 9 The constitutional requirement, both pre and post Boykin, is that a plea of guilty be ’intelligent and voluntary.’ Boy-kin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review ’the record must affirmatively disclose that the defendant who pleads guilty enters his plea understandingly and voluntarily.’ (Brady v. United States, 397 U.S. 742, 747, footnote (4), 25 L.Ed.2d 747, 756, 90 S.Ct. 1463, 1468.) This requirement has been in effect in Illinois since 1948. See former Rule No. 27A, 400 Ill. 22.”

In the case before us the record does not make the required disclosure.

The defendant was not advised by the court of his right to persist in his plea of not guilty, or of his right to be confronted with the witnesses against him and no determination was made as to whether or not any force or threats or any promises, apart from the plea agreement, was used to obtain the plea.

The statement of the State’s Attorney indicates that a codefendant Kennel was guilty of a crime and that this defendant was ’’associated” with Kennel. This is not a sufficient basis from which it can be determined that there is a factual basis for the plea.

The defendant was charged with the sale of a narcotic drug but pled guilty to the possession of a narcotic drug. There is no affirmative showing that defendant understood the nature of the charge of possession of a narcotic drug.

There was merely the statement of defense counsel:

“He [defendant] advised me that he wishes to change his plea of not guilty which was entered at the time of arraignment and plead guilty to the reduced charge of Possession.”

People v. Reeves, supra, requires that the record must affirmatively disclose that the plea was voluntary and understandingly made in either appellate or post-conviction review. The above statement by defense counsel is the only reference in the record to the charge of “Possession,” and that does not affirmatively disclose that defendant understood the nature of the charge.

In view of the totality of these deficiencies, we hold that the guilty plea was not knowingly made.

A guilty plea that is not voluntary and knowing is violative of the due process clause. McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166.

We therefore reverse the decision of the circuit court and remand with instructions that the defendant be allowed to plead anew.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Avery, Defendant-Appellant.
    (No. 72-249;
    Fifth District
    July 24, 1974.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.

Robert E. Farrell and Richard E. Cunningham, both of the State Appellate Defenders Office, of Mt. Vernon, and William H. Wilson and Richard A. Ringhofer, both Senior Law Students, for appellant.

Robert H. Rice, State’s Attorney, of Belleville (Richard Agiurre, Assistant State’s Attorney, of counsel), for the People.


author: Mr. PRESIDING JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Hill et al., Defendants-Appellants.
    (No. 12207;
    Fourth District
    August 8, 1974.
   Opinion by

Mr. PRESIDING JUSTICE SMITH.

Paul T. Manion and Associates, Ltd., of Hoopeston (Paul T. Manion and Rick E. Janov, of counsel), for appellants.

Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry O. Simmons, Defendant-Appellant.
    (No. 73-162;
    Third District
    July 31, 1974.

      James Geis, of the State Appellate Defenders Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE SCOTT

dehvered the opinion of the court:

This is an appeal from the circuit court of Rock Island County. The defendant, Henry O. Simmons, hereinafter referred to as defendant, was indicted for forgery and conspiracy. The defendant was convicted at a jury trial on both counts and was sentenced by the court to a term in the penitentiary of not less than 3 nor more than 9 years.

The defendant raises two issues on this appeal: (1) whether the comments made by the prosecutor during both closing arguments and rebuttal were so highly prejudicial and so inflammatory that it cannot be said that they did not affect the outcome of the trial, (2) whether it was error for the defendant to be convicted of both the inchoate crime of conspiracy as weH as the principal offense of forgery.

The case against the defendant was based almost exclusively on testimony of a co-defendant, Austin. On December 8, 1972, Austin passed a a check for $89.42 at the First National Bank of Rock Island endorsed in the name of James ToHerud.

After his arrest Austin implicated the defendant and indicated that the defendant asked him to pass the check and later divide the proceeds.

The gist of the first point raised in this appeal is that during closing arguments and rebuttal the assistant State’s Attorney made various comments in the presence of the jury to matters which had already been successfuHy objected to at trial, referred to facts not presented in evidence, and indicated his personal behef in defendant’s guilt.

Needless to say, if the defendant feels that an improper statement has been made, an objection should be raised at the trial level. If a timely objection is not raised the objection may be waived. (People v. Kitlebrew, 55 Ill.2d 337, 303 N.E.2d 377.) However, if no objection is made at trial, and the statement is so prejudicial and inflammatory as to deprive the defendant of a fair trial, the reviewing court can reverse the judgment, but should not reverse due to an improper statement if the statement does not rise to such a level. (People v. Smothers, 55 Ill.2d 172, 302 N.E.2d 324.) In order to warrant a reversal it should be shown that the statement or statements considering all the evidence of guilt was a material factor in the conviction and the verdict would have been otherwise if the statement hadn’t been made. (People v. Smith, 6 Ill.App.3d 259, 285 N.E.2d 460.

In the instant case the prosecutor’s closing argument was at one point objected to and the court sustained the objection. The jury was not admonished immediately to disregard the statement, but an instruction was given to disregard any statements made in the closing arguments which were not based on fact. The failure to admonish at the time the objection was sustained is not fatal in light of the later instruction. People v. Arnold, 12 Ill.App.3d 826, 299 N.E.2d 446.

The defendant also assigns as error that the assistant State’s Attorney indicated his job was to protect the innocent and prosecute the gmlty. Defendant claims that this statement indicates the prosecutor’s personal belief in his guüt. This expression is proper where it is apparent that such an opinion is based on facts or inferences from facts in evidence. People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601.

Regarding the statements which were not objected to at the time of trial, but which defendant now assigns as error, we can only conclude that the defendant has no standing to raise them in this appeal unless they are so prejudicial that they deprived the defendant of a fair trial. People v. Killebrew, 55 Ill.2d 337, 303 N.E.2d 377; People v. Kirkwood, 54 Ill.2d 369, 297 N.E.2d 148; People v. Arnold, 12 Ill.App.3d 826, 299 N.E.2d 446.

The defendant contends that any of the comments taken individually which he is now objecting to may be grounds for reversal and that taken cumulatively they would definitely be grounds for reversal. The statements the defendant objects to at this point, which were not objected to at trial, are:

"In this case we have had some more humorous moments. More than I have ever been acquainted with in working two years with witnesses and I have been trying to keep a straight face in being Prosecutor.
Mr. Simmons would have you believe that the State is mistaken to say that he has committed a crime. The second thing, Mr. Lomas testified how they went to Davenport and picked up the paper. That goes to show you what kind of people we are dealing with today. Henry O. Simmons is the person who is running around with the convictions and even if Mr. Lomas testified he didn’t know Mr. Simmons until he came to me’ but says, Tie knew me from Stateville so Mr. Simmons already knew the man.’
If you find Mr. Simmons not guilty, he will be out on the streets to go about his business as he deems best. * * * (L)et’s be a sympathetic prosecutor; persecutor not prosecutor. Ladies and Gentlemen, I have to function and do a job I am required to do and a duty to protect the innocent and prosecute the guilty.
Mr. Collinson has more experience on Petitions to Revoke Probation than anyone. * # * Does that mean Mr. Simmons should get away with the crime?
However, I didn’t tell Mr. Simmons to forge that check. He took it upon himself because he wanted money. * * * If Mr. Simmons wanted to give a truthful statement, he would have said, 1 alone did it’ and that would be the end of it.
I am the Prosecutor NOT the persecutor.”

We do not find any of these statements urged by the defendant as being a basis for reversal as of that caliber which when unobjected to would be so prejudicial as to deny the defendant a fair trial.

The defendant also urges as error the following statement by the prosecutor:

“Did anyone watch Monday night show where the guy had put a mask over his face; got out on bail and committed the same crime. That answers all the questions. * 0 •”

This was an invited statement as the defense attorney had previously related a similar television experience about how an innocent person was accused of crime and how an innocent person could even be convicted merely on the word of another person. A statement which is invited is proper and appropriate argument (People v. Havener, 13 Ill.App.3d 312, 300 N.E.2d 43), and furthermore this was not a statement so prejudicial as to warrant a finding that it denied the defendant a fair trial. People v. Killebrew, 55 Ill.2d 337, 303 N.E.2d 377; People v. Kirkwood, 54 Ill.2d 369, 297 N.E.2d 148; People v. Arnold, 12 Ill.App.3d 826, 299 N.E.2d 446.

Regarding the second issue presented for review, whether or not it was error for the defendant to be convicted of both the inchoate crime of conspiracy as well as the principal offense of forgery, the State confesses it was an error for the defendant to be convicted of both of said crimes, and therefore the judgment of guilty entered by the circuit court of Rock Island County for the crime of conspiracy is reversed and vacated. (See People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1.) For the reasons set forth the judgment of guilty and sentence imposed thereon by the circuit court of Rock Island for the offense of forgery is affirmed.

Affirmed in part and reversed and vacated in part.

ALLOY and STOUDER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Randall K. Abel, Defendant-Appellee.
    (No. 74-20;
    Third District
    July 31, 1974.
    Henry D. Sintzenich, State’s Attorney, of Macomb, for the People.
    Thomas Dye, of Macomb, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

On October 21, 1973, defendant, Randall K. Abel, was arrested by Officer Edward Wilson for careless driving and resisting a peace officer. Officer Wilson was assisted in the arrest by Sergeant Galen Dorothy and Officer Gary Douglas. An information charging resisting a peace officer was filed. Defendant plead not guilty and demanded a jury trial.

The case came on for trial setting and was set for trial on Monday, January 14, 1974. Sergeant Dorothy was recovering from surgery and might not be able to testify, but he was not a necessary witness; Officers Wilson and Douglas were both necessary. Officer Douglas was taken ill on Sunday, January 13; he was bedridden, and no specific day was ascertainable when he would be able to testify. The only witness available was Officer Wilson, who alone could not establish the People’s case. The assistant State’s Attorney in charge of the case was notified early Monday morning, and he notified the court and defense attorney as soon as they were available.

Prior to the calling of the case the People filed a written motion for continuance on the above facts, which motion was denied. Defense then made an oral motion for dismissal for "want of prosecution.” Over objection of the People the trial judge granted the motion and dismissed the case for “want of prosecution.” The People have appealed.

We quote from a similar case, People v. Hoover, 12 Ill.App.3d 25, 26, “The judgment of the trial court in discharging the defendant was improper. The only grounds authorizing the discharge of a defendant without trial are found in the Code of Criminal Procedure, Ill. Rev. Stat. 1971, ch. 38, sec. 114—1. In a most similar case, People v. Barksdale (1969), 110 Ill.App.2d 163, the trial court dismissed the criminal case for want of prosecution upon the defendant’s motion. In that case the witnesses were non-available and the court specifically held that the trial court has no power to dismiss the indictment except on the grounds set forth in the Code of Criminal Procedure * * *. In People v. Shick (1968), 101 Ill.App.2d 377, the court stated exactly the same thing. In a recent case in this court, People v. Guido (1973), 11 Ill.App.3d [1067, 1069], we stated that ‘A dismissal for want of prosecution does not come within any of the statutory grounds set forth in Section 114—1.’ We adhere to that opinion.”

We reverse the order of dismissal and remand the case to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

ALLOY, P. J., and STOUDER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alf Freddie Clark, Defendant-Appellant.
    (No. 73-300;
    Third District
    July 31, 1974.
    James Geis, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    F. Jack Nathan, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Alf Freddie Clark, was indicted by a Rock Island County grand jury for the crime of armed robbery. Pursuant to plea negotiations the defendant pleaded guilty to the crime and was sentenced to a term of not less than 4 nor more than 8 years to the Illinois Department of Corrections.

In this appeal the defendant urges inter alia that the trial court committed error in accepting his guilty plea without informing him of the nature of the charges against him.

Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, §402) has been in existence since 1970. Its language is straightforward, explicit and uncomplicated. Among other things, it commands that “The Court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following: (1) the nature of the charge * *

In examining the record we find that counsel for the defendant during the course of the arraignment did utter the words “armed robbery” and that in addition the following colloquy occurred:

“Court: That you had a knife and took $80.00 from that individual, that’s true?
Defendant: Yes.”

There was no reading of the indictment to the defendant nor any explanation offered by the court as to the acts and intent which necessarily must be present to sustain the commission of the crime of armed robbery.

We can only conclude that the remarks made by defense counsel and the court at the time of the arraignment are too minimal to adequately inform the defendant as to the nature of the charge against him. (See People v. Hawkins, 17 Ill.App.3d 863, 309 N.E.2d 60; People v. Green, 17 Ill.App.3d 918, 309 N.E.2d 75.) Supreme Court Rule 402 was designed to obviate the precise problems which this record presents. We fail to find compliance with the rule, and for that reason this case must be reversed and remanded to the circuit court of Rock Island County with directions that the defendant be permitted to plead anew.

Having made this determination it becomes unnecessary for us to consider a further assignment of error raised by the defendant.

Reversed and remanded.

DIXON and STOUDER, JJ., concur.