text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RICHARD W. MILLER, JR., Defendant-Appellee.
    Third District
    No. 3—90—0758
    Opinion filed October 4, 1991.
    Joseph Navarro, State’s Attorney, of Ottawa (Rita Kennedy Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The defendant, Richard W. Miller, Jr., was charged with driving under the influence of alcohol and improper lane usage (Ill. Rev. Stat. 1989, ch. 95x/2, pars. 11 — 501, 11 — 709). His driving privileges were also summarily suspended (Ill. Rev. Stat. 1989, ch. 95x/2, par. 11 — 501.1). Defendant moved to suppress his breathalyzer result and rescind his statutory summary suspension. After the trial court granted both motions, the State appealed. We affirm.

Initially, we note that the defendant has not filed an appellee’s brief. However, since the record is simple and the disputed errors can be decided without his brief, we will address the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

At the hearing on defendant’s motions to suppress the breathalyzer result and rescind the summary suspension, Officer Rolando Matos testified that on the evening of March 31, 1990, he was on patrol. Around 12:45 a.m., he saw the defendant’s vehicle weaving across the center and shoulder lines on Route 71. On Matos’ signal, the defendant pulled over to the side of the road. As the defendant exited his car and walked toward Matos, he staggered, waved his arms, and shouted. When they began talking, Matos noted that the defendant’s speech was slurred and he smelled of alcohol. Matos asked him if he had been drinking, and the defendant admitted that he had.

Matos had the defendant perform four field sobriety tests. The only test the defendant performed properly was the finger-to-nose test. Matos then arrested him for driving under the influence of alcohol and transported him to the county jail.

Matos further testified that he was a certified breathalyzer operator. After he read the defendant the standard motorist’s warning (Ill. Rev. Stat. 1989, ch. 95%, par. 11 — 501.1(c)), he explained that there would be a 20-minute waiting period before he administered the breathalyzer test. He instructed the defendant that during that time he could not eat, drink, smoke, or put anything else in his mouth. As Matos waited for the time to pass, he did paperwork and spoke to the deputies and bailiffs. According to Matos, defendant did not have anything in his mouth during that time.

The defendant testified that he had drunk six or eight beers that evening. He denied crossing the center or shoulder lines prior to being pulled over. He also said that he did not stagger when he walked back to the police car, although he admitted slipping on the edge of the blacktop. He did poorly on the sobriety tests because he was standing on gravel and he had poor balance because of a prior leg injury. He said his eyes were bloodshot because he had worked around diesel fumes that day.

The defendant further testified that after being arrested, he was taken to jail. Matos read him the motorist’s warning, which he signed. While the defendant waited to take the breathalyzer test, Matos did paperwork and was in and out of the room. Defendant said that Matos never told him not to smoke, drink, or eat. Defendant stated that he had Copenhagen snuff in his mouth during the entire waiting period. Immediately before blowing into the breathalyzer, he swallowed the tobacco.

The court took judicial notice of the Department of Public Health standards for administering a breathalyzer test. The requirements include the following:

“Continuous observation of the subject for at least twenty (20) minutes prior to collection of the breath specimen, during which period the subject must not have ingested alcohol, food, drink, regurgitated, vomited or smoked.” 77 Ill. Adm. Code 510.60(a)(1985).

After the defendant rested, the State recalled Matos to the witness stand. He testified that he did not leave the defendant unattended during the waiting period. He admitted that he did not ask the defendant to open his mouth, nor did he scrape the defendant’s mouth. Although he did not detect an odor of tobacco on the defendant, he found a tin of tobacco in his back pocket.

The trial judge found that the defendant had tobacco in his mouth during the 20-minute waiting period. Accordingly, he ruled that the test was invalid and rescinded the statutory summary suspension and suppressed the breathalyzer result.

On appeal, the State concedes that noncompliance with the Department of Public Health regulations may serve as a basis for suppressing a breathalyzer result in DUI prosecutions and summary suspension hearings. (See People v. Hamilton (1987), 118 Ill. 2d 153, 514 N.E.2d 965.) It argues, however, that the trial court erred in granting the motions to rescind the summary suspension and suppress evidence. It first contends that the court’s finding that the defendant had tobacco in his mouth was not supported by the evidence.

Initially, we note that in a statutory summary suspension hearing, the burden is on the defendant to present a prima facie case that the test result was unreliable. If he does so, the burden shifts to the State to show that the result was accurate. (People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210.) The burden of proof on a motion to suppress is also on the movant. (People v. Wright (1969), 42 Ill. 2d 457, 248 N.E.2d 78.) On appeal, this court cannot reverse the trial court’s finding on either motion unless it was manifestly erroneous. People v. Wireman (1989), 181 Ill. App. 3d 385, 536 N.E.2d 1346; People v. Hunt (1989), 188 Ill. App. 3d 359, 544 N.E.2d 118.

In the instant case, the parties presented conflicting accounts regarding whether the defendant had tobacco in his mouth prior to the test. The trial court was in a better position to judge the witnesses’ credibility and elected to believe the defendant. Where there is a conflict in the testimony and the trial court finds one party more credible, its finding will be affirmed unless the party’s testimony was inherently unreasonable or impossible. (See People v. Bertsch (1989), 183 Ill. App. 3d 23, 538 N.E.2d 1306.) Applying this standard, we affirm the court’s finding that the defendant had tobacco in his mouth during the waiting period.

The State next argues that chewing or swallowing tobacco does not violate Department of Public Health regulations because it does not constitute smoking or the ingestion of food or drink.

We disagree. Although it may be debated whether chewing or swallowing tobacco most closely resembles either smoking, eating, or drinking, the clear import of the rule is to prohibit the ingestion of organic matter. Since chewing or swallowing tobacco constitutes such activity, we find that it violates the regulations.

Lastly, the State argues that the defendant had the burden of showing that chewing or swallowing tobacco would affect a breathalyzer result. This, the State argues, defendant failed to prove. The State relies on People v. Bertsch (1989), 183 Ill. App. 3d 23, 538 N.E.2d 1306, and the law of the State of Minnesota (see Pasek v. Commissioner of Public Safety (Minn. App. 1986), 383 N.W.2d 1, and Johnson v. Commissioner of Public Safety (Minn. App. 1986), 392 N.W.2d 359).

In Bertsch, the Second District Appellate Court affirmed the trial court’s ruling rescinding the summary suspension of defendant’s driver’s license. The trial court had ruled that the breathalyzer exam had not been given in accordance with the Department of Public Health regulations. The trial court found that the officer administering the test had not in fact kept defendant under observation for the required 20-minute period and that defendant said he had belched during the waiting period. The trial court noted that belching, like vomiting, would "queer” the test results. The testing officer had conceded as much. On appeal, the court affirmed the trial court’s factual findings that the officer had not kept defendant under continuous observation pursuant to Public Health regulations and that belching could have skewed the test results. The court specifically declined to rule, however, that belching was legally equivalent to regurgitation for purposes of section 510.60(a).

We find Bertseh and the other belching cases (e.g., People v. Johnson (1986), 148 Ill. App. 3d 4, 499 N.E.2d 66; People v. Crawford (1974), 23 Ill. App. 3d 398, 318 N.E.2d 743) distinguishable from this case because we find that chewing and swallowing tobacco, unlike belching, is the type of activity directly proscribed by section 510.60(a). The court in Hamilton (118 Ill. 2d at 160, 514 N.E.2d at 969, citing People v. Emrich (1986), 113 Ill. 2d 343, 498 N.E.2d 1140) held that noncompliance with the Public Health regulations invalidates the test results and renders them inadmissible. In other words, once defendant establishes noncompliance, it is not defendant’s burden to further prove that the test results were in fact affected by prohibited conduct. Thus, even though the reviewing court in Bertseh relied in part upon proof that the test results in that case were skewed in fact by conduct not directly prohibited by the Public Health regulations, the lack of such factual foundation in this case is not ground for reversing the trial court’s order rescinding defendant’s summary suspension and suppressing the test results.

Similarly, we are not convinced that the rule set forth by the Minnesota Court of Appeals would apply here. In Johnson, the parties did not dispute that chewing tobacco eould affect an intoxilyzer test result. (Cf. Pasek, 383 N.W.2d 1 (wherein the intoxilyzer operator testified that chewing tobacco did not affect test results).) Johnson had had chewing tobacco in his mouth until about 13 minutes before the intoxilyzer test was administered. The applicable regulations required that the defendant be under continuous observation (presumably without eating, drinking, smoking, chewing, etc.) for between 15 and 20 minutes immediately before the test. The trial court granted defendant’s motion to rescind the revocation of his driver’s license solely on the ground that the operator had not complied strictly with the 15- to 20-minute observation requirement.

On appeal, the court ruled that, although strict compliance with the State’s regulations for administering intoxilyzer tests was preferable, a showing of noncompliance did not per se invalidate the test results. The court ruled that the proponent of the intoxilyzer (the Commissioner of Public Safety) had to make a prima facie showing in an implied consent hearing that the test was valid. Then, the defendant is given an opportunity to show that the administration of the test failed to comply with applicable regulations and that such noncompliance in fact tainted the test results. The operator in Johnson testified that to his knowledge defendant’s chewing tobacco had not affected the test results. This testimony was unrebutted. Based on Minnesota precedent holding that test results could be admitted upon proof of substantial compliance with regulations coupled with “sufficient indicia of reliability” of the blood/alcohol test (Johnson v. Commissioner of Public Safety (Minn. App. 1986), 392 N.W.2d 359, 362, citing Kooi v. Commissioner of Public Safety (Minn. App. 1985), 363 N.W.2d 487), the court reversed the trial court’s order of rescission.

Johnson and Pasek are snuff cases, but they have no precedential value for our purposes today. The law of Minnesota is procedurally and substantively inapposite to Illinois. Unlike Minnesota, the law of Illinois places the initial burden of proof on the motorist requesting rescission of a summary suspension. After defendant makes a prima facie case for rescission, the burden shifts to the State to produce evidence in rebuttal. (Orth, 124 Ill. 2d 326, 530 N.E.2d 210.) More particularly, as indicated above, our supreme court ruled in Emrich and Hamilton that, upon a defendant’s prima facie showing of noncompliance with Illinois Public Health regulations, the breathalyzer test is presumed invalid and inadmissible. The burden of rebutting that presumption with proof of validity in fact is on the State.

In this case, defendant made a prima facie case for rescission pursuant to Hamilton, and the State introduced no evidence tending to prove in fact that defendant’s chewing tobacco and swallowing it immediately before taking the breathalyzer test did not affect the test result. The only factual issue presented to the court concerned whether defendant had the material in his mouth during the observation period. The court found that he did. Since the presumption of invalidity of the breathalyzer test result was not directly challenged by the State, defendant had no occasion to produce further evidence that it was invalid in fact. Accordingly, we hold that the trial court did not err in rescinding defendant’s summary suspension and suppressing the results of his breathalyzer test.

The judgment of the circuit court of La Salle County is affirmed.

Affirmed.

McCUSKEY and GORMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD J. McGLASSON, Defendant-Appellant.
    Fourth District
    No. 4—91—0167
    Opinion filed September 19, 1991.
    Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Colburn, State’s Attorney, of Jacksonville (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After entering a plea of guilty but mentally ill to a charge of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(a)(2)), defendant Ronald J. McGlasson was sentenced by the circuit court of Morgan County to serve a term of imprisonment of 12 years. In exchange for his guilty plea, a charge of aggravated kidnapping and a second count of home invasion were dismissed. (Ill. Rev. Stat. 1989, ch. 38, pars. 10 — 2(a)(5), 12 — 11(a)(1).) On appeal, the only issue raised is whether defendant is entitled to a new sentencing hearing because the trial court improperly considered as aggravating factors: (1) defendant was serving probation on a misdemeanor conviction at the time he committed the instant offense; and (2) the fact a person was injured inside the home, which defendant argues is a circumstance inherent in the home invasion offense to which he pleaded guilty.

The offense to which defendant pleaded guilty is defined as follows:

“a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in such dwelling place until he or she knows or has reason to know that one or more persons is present and ***
2) Intentionally causes any injury to any person or persons within such dwelling place.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(a)(2).)

Home invasion is a Class X felony. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(c).) The permissible range of sentencing for a Class X felony is not less than 6 nor more than 30 years. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(a)(3).) Within the statutory range, the sentence to be imposed on the defendant is a matter within the sound discretion of the trial court, and a reviewing court will not overturn the sentence merely because the relevant factors might have been weighed differently, but only on a showing of an abuse of discretion by the sentencing court. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) In this case, no abuse of discretion occurred.

In considering factors in aggravation, the trial judge made the following comment:

“Number 11 refers to committing an offense while on probation for a felony, a prior felony. This was not a prior felony but he was on probation nonetheless. The court is considering that to be an aggravating factor.”

Defendant complains that since the statute refers to probation for a prior felony, the trial court is prohibited from considering the fact he was on probation on a misdemeanor conviction at the time he committed the offense. See Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5— 3.2(a)(ll).

In listing the aggravating factors which must be considered by the trial court when sentencing a defendant, the statute does not make this list exclusive. Instead, the court may consider all relevant aggravating factors. It was not an abuse of discretion for the trial court to consider in aggravation that defendant was on probation at the time the offense was committed even though the probation was being served for a misdemeanor conviction.

The second statement of the sentencing judge to which the defendant objects is as follows:

“Home Invasion is a terrible offense, no question about it. But Home Invasion where someone is injured, someone struck with the hand when one enters the home, such as the case we had here once before, through the basement door, and places where people are home, and great bodily harm, may well justify more than the minimum sentence.”

Defendant argues that in the offense to which he pleaded guilty, it is inherent that a person be in the home and be injured by defendant. He contends that a judge cannot consider elements inherent in the offense as aggravating factors to enhance a sentence. (People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.) While the fact of injury may not be considered as aggravating, the nature of the force employed and the degree of harm caused to the victim are permissible factors to be considered in aggravation. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138; People v. Childs (1981), 101 Ill. App. 3d 374, 428 N.E.2d 185.) The trial court’s comments cannot be considered in isolation. In addition to the above statement, the trial court also had this to say:

“In this particular case, the defendant, while on probation, threw a cement block through a front window, forcibly removed the victim with a knife, cutting her hair somewhere in the process, from her head — kidnapped her, puts her in an automobile, drives her a hundred miles, or she drives him with a knife pointed at her, and then she escapes only when he gets out, relieving himself.
* * *
*** Given his continual threat to the community by his demonstrative [sic] criminal activity over the course of the entire period of the ‘80’s, and the fact he was on probation at the time of this offense, and the fact this standing alone — independent of the criminal history and independent of the violation of probation — the facts alone justify more than the minimum sentence in this case.”

At the hearing on the defendant’s motion for reconsideration of the sentence, the trial judge again pointed to the factors he considered, stating:

“The key is simply that you consider the charges, of course; his long history of criminality; the fact he was on probation at the time he committed these offenses; awaiting a bed at Gateway in Springfield — this Court has bent over backward to help [defendant].”

The statement of the trial judge in the instant case, which was objected to by defendant, is nothing more than the recognition of the law that the nature or degree of harm to the victim may be an aggravating factor warranting a greater than minimum sentence. The basis for the trial court’s sentence was already set forth. No error occurred.

Accordingly, the judgment of the circuit court of Morgan County is affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD HARLAN, Defendant-Appellant.
    Fourth District
    No. 4—91—0112
    Opinion filed September 24, 1991.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Monroe D. McWard, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant appeals from the Champaign County circuit court’s revocation of his probation, arguing error in the refusal to sentence him to intensive probation supervision (IPS) and the seven-year sentence imposed for burglary. We affirm.

The defendant pleaded guilty to burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1(a)) on November 21, 1989, and was sentenced to 30 months’ probation. The State filed a petition to revoke probation on March 30, 1990, alleging the defendant failed to ever report to the probation office, failed to appear for his intake interview, and failed to notify the probation office of a change of residence. On January 30, 1991, the court revoked the defendant’s probation and sentenced him to seven years’ imprisonment for burglary.

Although the defendant had been found qualified for IPS, the court declined to sentence him to IPS. The court cited the defendant’s “deplorable” record in the criminal justice system as the reason for denying IPS. The defendant, born in 1966, had 13 misdemeanor convictions and one felony conviction between 1983 and 1990. The court commented: “There is very little, if anything, in this report, or anything that’s been presented here that could be considered any significant mitigation. I simply think on this record that a community-based sentence would simply be inconsistent with the ends of justice.”

On appeal, the defendant argues the trial court abused its discretion in refusing to sentence him to IPS. Defendant claims he should have been sentenced to IPS because he met the minimum qualifications for the program, successfully completed probation in St. Clair County in 1983-84, and had no disciplinary problems while incarcerated for the felony conviction.

Section 5 — 6—1(a) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—1(a)), provides:

“Except where specifically prohibited by other provisions of this Code, the court shall impose a sentence of probation or conditional discharge upon an offender unless, having regard to the nature and circumstance of the offense, and to the history, character and condition of the offender, the court is of the opinion that:
(1) his imprisonment or periodic imprisonment is necessary for the protection of the public; or
(2) probation or conditional discharge would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice.”

The decision to grant probation lies within the discretion of the trial court; “a defendant has neither an inherent nor a statutory right to probation.” (People v. Sprouse (1981), 94 Ill. App. 3d 665, 677, 418 N.E.2d 1070, 1079.) The defendant here failed to cooperate with probation authorities during his sentence of probation. He had no right to be readmitted to a more strict form of probation on revocation. Eligibility for IPS does not mean IPS will automatically be imposed.

IPS is a special and highly structured program. It can be a viable alternative to imprisonment if the trial court sees evidence of rehabilitative potential and there is reason to believe the defendant can strictly adhere to the conditions of the program. The defendant here has a lengthy record, a prior felony conviction, and demonstrated his cavalier attitude toward a community-based sentence when he blithely failed to ever report to the probation office, failed to appear for intake, and failed to notify the probation office of a change in residence. Scarce resources should not be wasted on uncooperative offenders who demonstrate no willingness to abide by the simplest of conditions.

Given the defendant’s criminal record and, as the trial court stated, his failure to “reflect upon his situation” while incarcerated for a prior felony, the court did not abuse its discretion in declining his request for IPS. Such a sentence would have been, as the trial court found, “inconsistent with the ends of justice.” Ill. Rev. Stat. 1989, ch. 38, par. 1005-6-l(a)(2).

Alternatively, the defendant argues the seven-year sentence imposed for burglary was excessive. According to the information and indictment, the defendant took merchandise valued at $21.32 from Kohl’s Department Store in Champaign, Illinois. Defendant pleaded guilty to the burglary. He now argues seven years is excessive because the merchandise was worth only $21.32.

Burglary is a Class 2 felony, for which the court can impose a sentence of not less than three and not more than seven years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 1(b), 1005 — 8—1(a)(5).) The sentence imposed did not exceed the sentence allowed by law and, in light of defendant’s prior criminal record, was not excessive.

The order of the Champaign County circuit court revoking the defendant’s probation and sentencing him to seven years’ imprisonment is affirmed.

Affirmed.

LUND, P.J., and McCULLOUGH, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MICHAEL HILL, Defendant-Appellant.
    Fourth District
    No. 4—91—0293
    Opinion filed September 24, 1991.
    Rehearing denied November 1, 1991.
    Rex L. Reu, of Thomson & Weintraub, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant appeals from the McLean County circuit court’s denial of his motion to rescind the statutory summary suspension of his driver’s license. We affirm.

On March 3, 1991, defendant received four uniform traffic citations, including one for driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(aX2)). He refused to submit to a blood-alcohol test and received notice of the summary suspension of his driver’s license at the scene. The summary suspension was to become effective April 18, 1991. The traffic citations listed April 9, 1991, as the first appearance date.

On March 15, 1991, defendant filed a petition to rescind the summary suspension. The petition requested a hearing, pursuant to section 2 — 118.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1), and requested the clerk of the court notify him of the hearing date. On March 18, 1991, defendant filed notice of an April 10, 1991, hearing date with the court. The State moved, on April 1, 1991, for a continuance alleging the arresting officer was a material witness and would be out of town on April 10. The court held a hearing on the motion to continue on April 9, granted the motion, and continued the hearing to April 16,1991.

On April 15, 1991, defendant filed a petition to rescind the statutory summary suspension for lack of timely hearing. At a hearing held April 16, 1991, the court denied the motion and sustained the summary suspension of defendant’s driving privileges. (Ill. Rev. Stat. 1989, ch. 95V2, par. 6 — 208.1.) Defendant appeals the denial of his motion to rescind for lack of a timely hearing.

The Code provides for a hearing challenging the summary suspension of a driver’s license.

“(b) Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501, *** the hearing shall be conducted by the circuit court having jurisdiction. This judicial hearing, request or process shall not stay or delay the statutory summary suspension. Such hearings shall proceed in the court in the same manner as in other civil proceedings.” Ill. Rev. Stat. 1989, ch. 95V2, par. 2-118.1(b).

The defendant bases his argument on this court’s decision in In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 510 N.E.2d 614. There, the defendant was arrested for DUI on April 27, 1986. When he refused to take chemical tests, his driver’s license was summarily suspended. The confirmation of suspension was filed May 9 and was to become effective June 12. On May 16 the defendant filed a request for a hearing pursuant to section 2 — 118.1 of the Code (see Ill. Rev. Stat. 1985, ch. 951/2, par. 2 — 118.1) and the hearing was set for May 27. On May 27 the defendant filed a motion for substitution of judge and the court granted the motion. The new judge was appointed May 29. On June 3 the defendant sent a letter to the court advising of his petition for a hearing and requesting a prompt hearing. On July 3 the defendant filed a motion to rescind the summary suspension for lack of a timely hearing. The circuit court denied the motion.

This court reversed, holding: “[I]n order to comply with due process requirements, the hearing required in section 2 — 118.1 must be held within the 30 days unless delay is occasioned by the defendant, and failure to do so will require rescission of the suspension.” (Trainor, 156 Ill. App. 3d at 923, 510 N.E.2d at 618.) The 30-day time period was deemed mandatory and, thus, the failure to conduct the hearing within 30 days violated the defendant’s due process rights. Trainor, 156 Ill. App. 3d at 922, 510 N.E.2d at 617.

Defendant also relies on People v. Johnson (1990), 202 Ill. App. 3d 809, 560 N.E.2d 430. The defendant in Johnson filed a petition for a judicial driving permit (JDP) and a petition to rescind the summary suspension of his driver’s license. A hearing was set on the JDP petition but not on the petition to rescind. Defendant filed a motion to strike the summary suspension because the hearing was not held within 30 days. The court granted the motion and the State appealed.

On appeal, the State argued the circuit court erred in concluding the prosecutor or clerk had responsibility for setting a hearing date. The court concluded the person seeking rescission carries the burden of proceeding and the burden of proof. (Johnson, 202 Ill. App. 3d at 811, 560 N.E.2d at 431.) The court found the defendant met his burden and the burden then shifted to the State to ensure a hearing date was set within 30 days. The appellate court affirmed the circuit court’s rescission of the summary suspension.

At the April 16 hearing in this case, the circuit court stated it had determined at the April 9 hearing on the State’s motion to continue that defendant’s statutory suspension did not begin until April 18. The court further stated:

“This court considered at the time of the original hearing which was clearly scheduled within [the] 30 days a motion to continue because of the unavailability of a material witness. This court exercised its discretion in allowing the motion to continue. This court additionally insured that the hearing on the petition to rescind would be set prior to the time that the statutory summary suspension became effective. This court believes that it complied with the intent of the legislature in securing an early hearing date for the defendant on the petition to rescind that he filed.”

The trial court misinterpreted the statute; the effective date of the statutory summary suspension is not relevant. The critical dates set forth in section 2 — 118.1 of the Code are for the 30-day time period which begins with the request for a hearing and the original appearance date shown on the citation. Thus, the trial court erred in denying the defendant’s motion because the hearing would be conducted before the effective date of the suspension of his driver’s license. Yet we affirm the circuit court’s decision, concluding the court reached the correct result.

The defendant filed his petition March 15 but did not serve notice of a hearing date until March 18. We conclude the 30-day statutory time period expired on April 18, 30 days after the defendant provided proper notice. In so holding, we adopt the reasoning of the Second District Appellate Court in People v. Grange (1989), 181 Ill. App. 3d 981, 537 N.E.2d 1153.

The defendant in Grange was arrested for DUI on January 28, 1988. He submitted to a blood-alcohol test, which revealed his blood-alcohol content was 0.22. The arresting officer immediately notified the defendant of the summary suspension of his driver’s license. On February 3, 1988, defendant filed a petition seeking a hearing pursuant to section 2 — 118.1 of the Code. He requested a March 4 hearing date. The first appearance date shown on the verified complaint for defendant was March 7, 1988. On March 7 defendant filed a motion to rescind the statutory summary suspension because the hearing was not held within 30 days of his February 3 request. The trial court relied on Trainor and granted the defendant’s motion. The State appealed.

The Second District Appellate Court held the trial court erred in granting the defendant’s motion. The statute provides for a hearing within 30 days of a request by the driver or on the first appearance date shown on the uniform traffic citation. Thus, a hearing on the first appearance date, March 7,1988, in Grange, was timely.

Though not raised by the State, the Grange court chose to exercise its discretion and address an additional issue appearing on the record and warranting reversal of the trial court. The issue was “whether or at what point in the proceedings did defendant make a sufficient request to the court for a hearing under section 2 — 118.1(b) of the Code.” (Grange, 181 Ill. App. 3d at 986, 537 N.E.2d at 1156.) The court stated:

“We believe that section 2 — 118.1(b) requires more than the mere filing with the circuit court clerk of a petition for a rescission hearing before defendant’s statutory right to a hearing within 30 days begins to run. (Ill. Rev. Stat. 1987, ch. 951/2, par. 2— 118.1(b).) Under section 2 — 118.1, the burden to proceed and the burden of proof in a rescission hearing are placed upon defendant. (People v. Blythe (1987), 153 Ill. App. 3d 292, 505 N.E.2d 402.) Defendant’s petition for a rescission hearing, stating the grounds upon which rescission is sought, is to be made ‘to the circuit court.’ (Ill. Rev. Stat. 1987, ch. 95x/2, par. 2 — 118.1(b).) Such hearings are to proceed in the court in the same manner as in other civil proceedings. (Ill. Rev. Stat. 1987, ch. 95x/2, par. 2— 118.1(b).) Unless a motion is brought to the attention of the court and the court is asked to rule on it, the motion is not effectively made.” Grange, 181 Ill. App. 3d at 986, 537 N.E.2d at 1156.

The court concluded the defendant’s request for a hearing was insufficient because it did not seek a hearing date. The court held, “[T]he mere filing with the circuit court clerk of a petition requesting a hearing does not start the running of the 30-day time period in which a hearing is to be held but that, to be sufficient, such a request for a hearing must be brought to the attention of the court so that a hearing date can be set.” (Grange, 181 Ill. App. 3d at 987, 537 N.E.2d at 1157.) The court concluded the Trainor decision supported this result, because it held the 30-day time period began running anew from the time the defendant requested a new judge. We agree, and do not view our decision in this case as a departure from Trainor.

The decision of the McLean County circuit court denying defendant’s motion to rescind the statutory summary suspension of his driver’s license for lack of a timely hearing is affirmed.

Affirmed.

STEIGMANN and McCULLOUGH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CRAIG BELL, Defendant-Appellant.
    Fourth District
    No. 4—91—0219
    Opinion filed September 24, 1991.
    Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

The defendant appeals from the Sangamon County circuit court’s revocation of his probation and the 3V2-year sentence imposed. We affirm.

The defendant pleaded guilty to burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1) on December 19, 1989, and was sentenced on January 2, 1990, to 30 months’ probation. Among other things, the probation order required the defendant:

“16. *** [U]ndergo a drug evaluation and successfully complete any treatment recommended as a result thereof.
17. * * * [P]ay a $10.00 per month probation fee.
18. *** [P]erform 40 hours public service employment at direction of Probation Department.”

The State filed a petition to revoke defendant’s probation on August 21, 1990, alleging defendant failed to successfully complete public service employment, failed to successfully complete an alcohol and drug treatment program, and failed to pay the probation fee imposed.

The revocation hearing took place on January 3, 1991. Vicki Burdine, defendant’s probation officer, testified defendant kept most appointments with her but was often argumentative and abusive toward her and exhibited a poor attitude. She testified defendant completed no public service work and did not complete the alcohol and drug treatment program that was recommended after his evaluation. He was discharged from the treatment program because he failed to keep appointments. He was also behind in paying probation fees but had sufficient income in excess of expenses to do so.

The defendant testified he was employed at McDonald’s. He agreed with Burdine’s testimony regarding his monthly income and expenses, though he stated he also pays $100-per-month child support pursuant to a Michigan court order. He admitted he had not informed Burdine of this expense because he believed it was none of her business. He testified he did not know the drug evaluation was mandatory and indicated he did not need treatment because he had rehabilitated himself. He also claimed he would have lost his job had he enrolled in the 30-day treatment program. The defendant testified he had paid $50 in probation fees. He indicated he had done no public service employment work because he did not know when or where to go. He also believed he could complete the 40-hour requirement at any time during the 30-month period of probation.

On rebuttal, Burdine testified she repeatedly explained to the defendant department policy allowed three appointments for public service employment. If none were kept, a probation violation report would be filed. She testified she set up seven appointments with the public service coordinator to arrange public service employment for the defendant but he kept none of them.

The court found the defendant violated the terms of probation because he had sufficient income to pay the probation fees but had not done so, he failed to do any public service employment work, and he failed to go for drug counseling. The court sentenced the defendant, on February 28, 1991, to 3x/2 years’ imprisonment.

On appeal, the defendant first argues the court abused its discretion in revoking his probation and imposing a 3V2-year sentence. The State bears the burden of proving, by a preponderance of the evidence, the defendant violated a condition of probation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(c).) The trial court may revoke probation at any time “if warranted by the conduct of the offender and the ends of justice.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—2(c).) “The determination to terminate probation rests within the discretion of the trial court, and, absent a showing that the court’s determination was against the manifest weight of the evidence, this court will not disturb the trial court’s ruling.” (People v. Prusak (1990), 200 Ill. App. 3d 146, 149, 558 N.E.2d 696, 698; see also People v. Willett (1976), 44 Ill. App. 3d 545, 550, 358 N.E.2d 657, 662; In re B.R.J. (1985), 133 Ill. App. 3d 542, 545, 478 N.E.2d 1206, 1208.) The appellate court affirmed the trial court’s revocation of probation in B.R.J., where the defendant failed to report to the probation office on two occasions, failed to report to at least three public service work sites, and performed only 9 out of 75 required hours of public service work.

Essentially the defendant argues substantial compliance with the probation order is sufficient. We disagree. Compliance with the terms of probation is not discretionary, but mandatory. Failure to comply with just one term may be sufficient to revoke probation even when the defendant has substantially complied with all other terms.

Defendant admitted he did not comply with the public service employment requirement of the probation order, and claimed he believed he could complete the public service work at any time during the 30-month probation period. He notes the probation order does not specify a time frame in which the work was to be completed. However, as the defendant also notes, the work was to be performed as directed by the probation department. Burdine testified on rebuttal she informed the defendant on many occasions of the necessity of completing public service employment work.

“Q. [By prosecutor:] Did you make it clear that you considered it a violation for him not to have done it when you were talking to him?
A. [By Burdine:] Yes.
Q. What was his response to that?
* * *
A. To being a violation, that he had until June 20th to do it, which if that were the case, then we would have been setting up appointments for two years. If he was going to wait until the last minute, and it’s procedure that a Defendant is given three appointments, if they fail to keep those three appointments, a violation is filed.”

This testimony contradicts defendant’s claim the probation office never warned him failure to keep the appointments would result in revocation of probation.

Although defendant completed the drug evaluation, he admitted he did not complete the treatment program because he did not believe he needed treatment. Defendant maintains he rehabilitated himself and notes there is no evidence to contradict this assertion. Because he no longer uses drugs, he claims the purpose of the drug-treatment requirement has, in effect, been fulfilled. The trial court properly rejected this argument. Defendant’s personal beliefs regarding treatment are irrelevant. He failed to comply with the requirements of the probation order.

We conclude the evidence was sufficient to prove defendant violated conditions of probation, and it was not an abuse of discretion to revoke defendant’s probation for failure to comply with the public service employment requirement and failure to complete the drug-treatment program.

The second issue defendant raises involves the probation fees. The court found defendant did not pay probation fees and used this as one of the grounds for revoking probation. Defendant argues he paid $50 of his probation fees but could not afford to pay all fees on time. He maintains the probation order does not require payment of $10 each month, but payment of $10 for each month of probation imposed. Thus, he contends he could pay the total amount in a lump sum at some time before the end of the probation period. Defendant also argues the record does not indicate Burdine ever told him failure to pay the probation fee on a monthly basis could result in revocation of probation. Finally, defendant argues the court erred in revoking probation for failure to pay probation fees because there was no finding he wilfully failed to pay.

Section 5 — 6—4(d) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(d)) prohibits revocation of probation for failure to pay restitution unless such failure is wilful. The State has the burden of proving defendant’s failure to comply with financial portions of a probation order was wilful. (People v. Boucher (1974), 57 Ill. 2d 225, 311 N.E.2d 679; People v. Harder (1975), 59 Ill. 2d 563, 322 N.E.2d 470.) The court here found although defendant had sufficient income to pay the probation fee each month, he simply did not pay. This determination is the equivalent of finding his failure to pay was wilful. Whether payment of the probation fee was convenient for defendant is not the standard.

Defendant chose to test the conditions of his probation to the limit. His attitude was he need not inform his probation officer of personal information unless he deemed it to be her business. He need not comply with the treatment recommendation of the Treatment Alternatives to Street Crimes evaluation because he rehabilitated himself. He need not complete his public service work requirement until convenient for him. He need not stay current on his probation fees because he had other unspecified expenses. Defendants do not control the terms of probation nor the manner in which they comply with those terms. Scarce resources should not be wasted on offenders who do not comply with the simplest of rules.

The order of the Sangamon County circuit court revoking the defendant’s probation and sentencing him to 3Vz years’ imprisonment is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re S.M. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Angela Houston, Respondent-Appellant).
    Fourth District
    No. 4—90—0847
    Opinion filed September 24, 1991.

      Lynne R. Feldman, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Diana Lenik, of Urbana, guardian ad litem.

   JUSTICE STEIGMANN

delivered the opinion of the court:

On November 8, 1990, the circuit court terminated the parental rights of Angela Houston, respondent mother, as to her daughter S. M. (born May 8, 1986) and her twin daughters T.M. and L.M. (born January 16, 1989). The court had earlier found Houston to be an unfit parent. Houston appeals, arguing that (1) the State did not prove her parental unfitness by clear and convincing evidence, and (2) the court erred in finding it was in S.M.’s best interest to terminate her parental rights when the parental rights of S.M.’s father remain unaffected by the proceedings. We disagree and affirm.

In August 1990, the State filed a petition seeking a finding of unfitness and the termination of the parental rights of Houston and Clemith McCray (respondent father) regarding their twin daughters T. M. and L.M. The petition also sought to terminate the parental rights of Houston regarding her other daughter, S.M., but did not seek to terminate the parental rights of Charles Miles, S.M.’s father.

The petition to terminate parental rights was brought under section l(D)(m) of the Adoption Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m)) and alleged that the trial court (1) entered an order in May 1989 finding all three minor respondents to be neglected, and (2) entered a dispositional order in June 1989 making the guardianship administrator of the Illinois Department of Children and Family Services (DCFS) the minor respondents’ permanent guardian. The petition further alleged that the respondent parents were unfit because, within 12 months of the adjudication of neglect, they failed to make either reasonable progress toward the return of the minor respondents or reasonable efforts to correct the conditions which were the basis for the removal of the respondent minors from them.

On October 2, 1990, the day allotted for the adjudicatory hearing on the petition to terminate parental rights, McCray executed a final and irrevocable surrender of his parental rights regarding T.M. and L.M. The court then conducted the adjudicatory hearing regarding Houston and, at the conclusion thereof, made its findings of fact. We have reviewed those findings, and we conclude that they are soundly based upon the evidence presented at the hearing. Accordingly, in response to Houston’s argument that the evidence was not sufficient to prove by clear and convincing evidence that she was an unfit parent, instead of describing the evidence presented at trial, we quote extensively from the trial court’s findings, which does an excellent job of setting forth the evidence:

“[T]he question of whether or not a parent has made reasonable progress is an objective standard. The Court may consider any particular shortcomings or handicaps with which the parent struggles, however the question is whether or not that parent has made reasonable progress, not whether or not the parent has tried. The Court is to demand measurable, observable progress if it is to conclude, in fact, reasonable progress has been made. ***
In this case *** this family came before the Court, initially, demonstrating some very immediate medical problems. The twins were born prematurely. In the opinion of Dr. Bassona, premature birth may well have been due to the Respondent Mother’s admitted cocaine use throughout her pregnancy. [T.M.] had very serious apnea problems, and so an apnea monitor had been prescribed for [her]. The original problem was that the Respondent Mother was admittedly sleeping through the sound of the alarm. Witnesses described that the alarm was high pitched and very loud, much like a smoke alarm system. The Respondent Mother had admitted that she slept very close to the child but nevertheless did not awaken when the alarm sounded. As I recall, there was the testimony of an employee of Pulmocare Medical Supplies *** who described attempts to instruct the Respondent Mother in the use of the apnea monitor. He indicated that he had to do this twice, that the first day he attempted it she was extremely lethargic and was really incapable of understanding his explanations and so he had to come back again to explain how this worked.
Various witnesses described that the Respondent Mother was often not very responsive, was often lethargic, both around the children and in their presence. Specifically, Cynthia Robbins [a DCFS worker] indicated that when she attempted to interview the Respondent Mother, and in fact, when custody was taken from the Respondent Mother on March 21st of 1989, the Respondent Mother was extremely lethargic, had [L.M.] in her lap and reacted not at all when the child was removed. The Respondent Mother’s speech was very slurred and *** in the opinion of Ms. Robbins, the Respondent Mother was under the influence of alcohol and possibly marijuana and cocaine at that time.
The Respondent Mother was unemployed. By the time [of the] dispositional hearing, *** of course, she had no residence because she was in Hour House.
The presenting problem, *** overall, was her substance dependency and abuse. She admitted extensive cocaine usage and marijuana usage; and in fact, Ms. Robbins indicated that on February the 17th of 1989, when she interviewed the Respondent Mother in her home, the Respondent Mother acknowledged that throughout the pregnancy she was using cocaine twice a week, and that she knew it could hurt the fetuses but continued anyway, and on that very date Ms. Robbins noticed what she described as a stifling odor of marijuana in the home. It’s noteworthy that during Ms. Robbins visit on February 17th, [T.M.], who had breathing problems in part because of her prematurity, was present in the home and subjected to that stifling odor [and] environment.
For these reasons, the Court directed various dispositional orders towards the Respondent Mother, noting that not only was there the current situation that was a problem, but that there had been a prior indicated report in December of 1988, for actual physical abuse.
Of course, the Court ordered residential treatment pursuant to the recommendations of the experts, that the Respondent Mother complete parenting classes, that she not change her residence without at least fourteen days’ prior notice to the guardian, that she exercise all reasonable effort to obtain and maintain employment, to obtain a GED, and she maintain regular visitation with her children. That was some fifteen months ago. Since then, under all of the evidence that’s been presented today, it is uncontradicted that the Respondent Mother has yet to complete a course of residential treatment, in spite of at least three referrals and two attempts; she has yet to complete a course of parenting classes, either through Children’s Home and [Aid] Society, to whom she was originally referred or pursuant to the SAFE Program conducted by Prairie Center for Substance Abuse; and not only has she changed residences, she has [done so] without advising the guardian in advance, she has refused, steadfastly and continuously, to advise the guardian as to where she’s living. Aside from sporadic employment, there has been none. I believe the testimony of Ms. Graham [a DCFS worker] was that the Respondent Mother had a number of jobs for a day or two, a month at the outside. She did maintain regular visitation, apparently, at least up until August when she missed, I believe it was four or five consecutive visits, during an extended stay, apparently, in Denver, Colorado. So, if the Respondent Mother has made progress here, it has been without complying with the dispositional order, and without complying with the client service plans presented by the Department.
We are in a situation today in which the Respondent Mother has no residence at which these children could live; she has not employment of which the Court is aware; and [she] is apparently undertaking no treatment, in-patient or otherwise, to address the substance abuse and dependency problem. Now, the assumption was, from the outset of this case — I suppose inference is a better word — that the other problems, the residential instability, the employment instability, the failure to attend to the children’s medical needs, particularly [T.M.]’s needs, the inability to wake up to the apnea monitor and things *** of this nature, were due to substance abuse. In the event that, in fact, the Respondent Mother has begun the recovery process and is abstaining from the use of controlled substances and abuse of alcohol, without residential treatment and without out-patient treatment, and without individual counseling, without all of the other things that have been recommended, then one must ask, why is there still a lack of employment, a lack of residential stability and a lack of meaningful parenting skills? So, no matter how we approach the problem, whether we look at it in terms of the Respondent Mother’s addressing the alcohol and drug dependency and abuse, or we look at it strictly from a parenting aspect, without regard to the alcohol and drug abuse, there simply has been no progress here, reasonable or otherwise.
*** As the Appellate Court has often reminded trial judges such as myself, in assessing reasonable progress the Court is not to look at any one specific period of time, rather the Court is to look at the entire period of time and assess reasonableness in light thereof. Here, when I search this record for demonstrable, measurable progress, I find before me a Respondent Mother who has no independent housing, apparently is unemployed, is undoubtedly still substance dependent. I don’t know whether or not she’s abusing, but certainly she’s not pursuing any course of treatment or recovery. There’s simply no demonstrable progress with regard to the situation as it appeared before this Court on *** June 21st of 1989, when [the written dispositional] order was signed.
* * *
With regard to the Respondent Mother, the Court finds by clear and convincing evidence that she is an unfit parent, by reason of having failed to make reasonable progress.”

On November 7, 1990, the trial court conducted a dispositional hearing on the State’s petition to terminate Houston’s parental rights. After considering the dispositional report prepared by DCFS and the arguments of counsel, the trial court made the following findings:

“Sadly, it does appear that there is no realistic prospect of meaningful progress or a true commitment to recovery by the Respondent Mother; certainly, in the foreseeable future. And, hence the only alternative to terminating parental rights would be to consign the children to a lifetime of uncertainty, at least a childhood of uncertainty. *** I believe they deserve better than that, and it’s the Court’s responsibility to pursue better than that.
So, the Court does find it’s in the best interest of the Respondent Minors, and the public, that the prayer of the Supplemental Petition be allowed and that the Respondent Mother, Angela Houston, have all residual parental rights and responsibilities terminated as to the Respondent Minors; and that the Respondent Minors, and each of them, be relieved of all obligations of obedience and maintenance to the Respondent Mother, and it is so ordered. Gary T. Morgan, Guardianship Administrator of the Illinois Department of Children and Family Services, and any successor in office, is continued as the guardian of the Respondent Minors, with power to place the Respondent Minors. And, the guardian is further authorized to appear in any court where from time to time a petition for the adoption of the respondent minors, [T.M.] and [L.M.] may be pending, and to consent to that adoption, without further notice to any party. * * *
As to the respondent minor, [S.M.], the cause is continued for a review hearing to February 19th, 1991, at 2:10 p.m., and that, of course, is with respect to [Miles] only.”

On appeal, Houston argues that the State’s evidence at the adjudicatory hearing failed to prove by clear and convincing evidence that she was an unfit parent on the ground that she failed to make reasonable progress toward the return of her children to her within 12 months after they were adjudicated to be neglected minors. The standard of review regarding the trial court’s findings is the following:

“It is well established that a finding of parental unfitness must be supported by clear and convincing evidence. [Citations.] The findings of the trial court must be given great deference since it has the opportunity to view and evaluate the testimony of the witnesses, and the trial court’s decision should not be reversed on appeal unless it is contrary to the manifest weight of the evidence.” In re Allen (1988), 172 Ill. App. 3d 950, 956, 527 N.E.2d 647, 651.

See also In re A.T. (1990), 197 Ill. App. 3d 821, 829-30, 555 N.E.2d 402, 408.

Recently, in In re L.L.S. (1991), 218 Ill. App. 3d 444, 460-62, this court discussed what “reasonable progress” meant under section l(D)(m) of the Act, as follows:

“ ‘[Reasonable progress’ *** requires, at a minimum, measurable or demonstrable movement toward the goal of the return of the child. [Citation.] ‘Reasonable progress’ is an objective standard which exists when the court, based on the evidence before it, can conclude that the progress being made by a parent to comply with directives given for the return of the child is sufficiently demonstrable and of such a quality that the court, in the near future, will be able to order the child returned to parental custody. The court will be able to order the child returned to parental custody in the near future because, at that point, the parent will have fully complied, with the directives previously given to the parent in order to regain custody of the child.
*** ‘Measurable or demonstrable movement’ cannot constitute ‘reasonable progress,’ as spoken of in section l(D)(m) of the Act, if it must be measured with a micrometer. ***
If the trial court’s denial of the State’s petition were permitted to stand, that decision would condemn L.L.S. to a childhood in foster homes while the courts continue to wait (apparently with unceasing patience) for respondents to ‘get their act together.’ The legislature has quite reasonably provided that parents, such as respondents, should have at least 12 months to do that before their parental rights may be terminated. Respondents have had considerably longer ***.” (Emphasis in original.)

Based upon our examination of the record, we conclude that the trial court’s findings at the adjudicatory hearing (that we quoted at length earlier) are fully justified and clearly not contrary to the manifest weight of the evidence. In accordance with the standards for measuring “reasonable progress” as we described them in L.L.S., the record in the present case is devoid of any evidence upon which the trial court could have concluded that Houston’s progress to comply with the directives given to her for the return of her children was “sufficiently demonstrable and of such a quality that the court, in the near future, will be able to order the [children] returned to [her] custody.” (Emphasis in original.) L.L.S., 218 Ill. App. 3d at 461.

The trial court found Houston unfit because (1) she failed within 12 months after her children were adjudicated to be neglected to make reasonable progress toward their return, and (2) she failed to make reasonable efforts to correct the conditions which were the basis for the removal of those children from her home. However, we need not address the “reasonable efforts” ground. We find the evidence fully sufficient to support the finding of Houston’s parental unfitness based on her failure to make reasonable progress, and that finding is sufficient to terminate her parental rights even if the evidence were not sufficient to support other grounds alleged. See L.L.S., 218 Ill. App. 3d at 445.

Houston also argues that the trial court erred in finding that it was in S.M.’s best interest to terminate her parental rights when the parental rights of S.M.’s father, Miles, were not affected in these proceedings. Houston claims that terminating one parent’s parental rights is erroneous if the other parent is not also part of the termination petition, absent a compelling need to get the parent whose rights are terminated out of the child’s life forever. We disagree.

Houston calls to our attention the DCFS report prepared for the October 1990 dispositional hearing, which refers to Miles as follows: “Charles Miles is not a part of the petition to terminate parental rights because he has made very good progress.” Houston then maintains that Miles’ parental rights may never be terminated. Houston argues that where, as here, adoption was not in the foreseeable future for S.M. because Miles’ parental rights will continue unaffected, the trial court erred in finding it to be in S.M.’s best interest to terminate Houston’s parental rights. We note, however, that the same DCFS report Houston cites regarding Miles also contains a reference to discussions between DCFS workers and Miles about his voluntarily surrendering his parental rights regarding S.M., as McCray did regarding his parental rights concerning Houston’s other two children. Thus, the continuing nature of Miles’ role in S.M.’s life was, at best, uncertain. The record further shows that Houston and Miles had not been residing together since at least the June 1989 dispositional hearing at which DCFS was made the permanent guardian of the children. Our point is that all of this information was before the trial court at the time it made its decision, and we are confident the trial court gave it whatever weight was appropriate in determining the best interest of S.M.

We hold that when the evidence supports a finding that one parent is unfit under section 1 of the Act and it is in the best interest of the child that the parental rights of that parent be terminated, the trial court may so order even though the parental rights of the child’s other parent have not been terminated or are not, as of that moment, even subject to a petition for termination. A petition seeking to terminate the parental rights of one parent may be brought after such a petition has already been successfully brought against the other parent; that one parent has not been (and may never be) found unfit is merely one additional factor which the trial court may give whatever weight it believes appropriate when it is deciding at a dispositional hearing whether it is in the best interest of the child that the parental rights of the first parent be terminated.

On the record before us, we find no abuse of the trial court’s discretion in determining that it was in S.M.’s best interest to terminate Houston’s parental rights even though Miles had not yet had (and may never have) his parental rights terminated.

For the reasons stated, the orders of the trial court terminating Houston’s parental rights are affirmed.

Affirmed.

LUND, P.J., and GREEN, J., concur.


author: JUSTICE GREEN JUSTICE STEIGMANN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL R. BARNES, Defendant-Appellant.
    Fourth District
    No. 4—90—0881
    Opinion filed September 24, 1991.
    STEIGMANN, J., dissenting.
    Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

Following a jury trial in the circuit court of Adams County defendant Michael Barnes was found guilty of aggravated battery under section 12 — 4(b)(8) of the Illinois Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 4(b)(8)), and was sentenced to a four-year term of imprisonment. Defendant appeals, contending reversible error was committed at trial when the prosecutor elicited testimony of (1) his post-arrest silence, and (2) his response to police questioning following his arrest and Miranda warnings. Defendant also claims the court erred by ordering him to pay an amount of restitution based exclusively on information in the presentence report, despite his objection that the amount was inaccurate. We reverse and remand for a new trial.

The dispositive issue here is whether the prosecutor elicited testimony at trial that defendant remained silent after his arrest and after he had been given the Miranda warnings in violation of the holding in Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240. In Doyle, the United States Supreme Court held that due process precludes the State from using a defendant’s post-arrest silence following the Miranda warnings to impeach his exculpatory story told for the first time at trial. The Supreme Court reasoned that post-arrest silence after a defendant receives the Miranda warnings is “insolubly ambiguous” because that defendant’s failure to speak may be nothing more than an exercise of his Miranda rights. Doyle, 426 U.S. at 617, 49 L. Ed. 2d at 97, 96 S. Ct. at 2244.

Initially, the State claims defendant has waived any claim of error because defense counsel failed to object at trial and in a post-trial motion to the testimony of which he now complains. Ordinarily, if the defense fails to make a timely objection at trial and in a post-trial motion, any claim of error is waived. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) However, Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)) provides an exception if there has been plain error. The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. People v. Pickett (1973), 54 Ill. 2d 280, 282-83, 296 N.E.2d 856, 858.

In People v. Green (1979), 74 Ill. 2d 444, 386 N.E.2d 272, the Illinois Supreme Court held that, there, even though that defense counsel failed to timely object at trial and in a post-trial motion, fundamental fairness required review of that defendant’s allegation that the prosecutor elicited evidence of his post-arrest silence to impeach him at trial. That court concluded that despite the existence of what would otherwise be plain error, the error was harmless beyond a reasonable doubt because of the overwhelming proof of the guilt of the accused. Here, because the evidence at trial was closely balanced and defendant’s credibility was crucial, we will review defendant’s contention of error under the doctrine of plain error.

The offense charged against defendant arose when he and the complainant, Terry Jones, engaged in a fistfight outside a tavern in a city parking lot. The primary factual issue at trial was whether defendant initiated the fight, or was acting in self-defense when he struck the complainant. The complainant testified at trial that as he was standing outside a tavern in a city parking lot he observed defendant driving in a “hot-rodding” manner and he yelled to defendant, "Go for it.” In response, defendant yelled, "your mama.” Defendant then parked his car in the city parking lot and he and a companion approached complainant and they exchanged more angry words. Complainant testified that defendant struck him unexpectedly, knocking him to the ground. A subsequent struggle ensued and complainant wrote down defendant’s license-plate number and contacted the police.

Paul Holtschlag witnessed part of the incident and testified that when he first arrived at the scene he observed complainant on the ground and defendant standing close to him. He then tried to intervene, and defendant struck him, knocking him to the ground. Holtschlag testified he never saw which party initiated the fight. In addition, Cathy Martin, a Quincy police officer, testified that on the evening of the incident complainant came to the Quincy police headquarters appearing as if he had been in a fight, reported being hit by another person, and “gave her information” concerning a license-plate number. She then checked the computer records of the Secretary of State and discovered the license plate belonged to a car registered to defendant. Martin also testified that the place where the fight was alleged to have taken place was public property, establishing the aggravating factor under section 12 — 4(b)(8) of the Code.

For the defense, Kenneth Gilker, defendant’s companion on the night of the incident, testified that just prior to the incident defendant pulled his car into the city parking lot because of car trouble when complainant then yelled something to them. Gilker and defendant proceeded to walk through the parking lot and complainant mumbled something like “Your mama” to defendant, who had asked, "What’s up?” After complainant repeated the remark, defendant walked toward him and asked, “What did you say?” and complainant struck defendant. Gilker testified defendant struck complainant back and knocked him to the ground.

Defendant testified to the same events as Gilker, and essentially claimed he struck complainant in self-defense. On cross-examination, the following colloquy took place between the prosecutor and defendant:

“Q. [Prosecutor:] Mr. Barnes, what time was it when you called the police department about this battery that you were the victim of?
A. [Defendant:] I’m sorry?
Q. What time was it when you called the police department about being hit in the parking lot by Mr. Jones?
A. I didn’t call no law. That’s useless that’s — .”

Defendant contends this portion of his cross-examination was an improper use of his post-arrest silence. However, the questions involved refer to defendant’s failure to report to the police, before his later arrest, that he had been attacked and acted in self-defense, as he claimed at trial. The fact that he did not report such an attack was probative as to whether his trial testimony was accurate. Jenkins v. Anderson (1980), 447 U.S. 231, 240, 65 L. Ed. 2d 86, 96, 100 S. Ct. 2124, 2130.

Later, during the cross-examination of defendant, the following further colloquy occurred:

“Q. [Prosecutor:] Do you remember when you talked to Officer Cathy Martin about a week after the incident?
A. [Defendant:] Yes.
Q. And do you remember Officer Martin asking you if you remember being on the City Market parking lot on June 16 and being in a fight at that time?
A. I’m not familiar with our conversation. I refused to go into detail about my case with her because she was the arresting officer.
Q. Do you remember saying to her, T don’t remember’?
A. No. I don’t remember saying, T don’t remember.’
Q. Did you say something otherwise to her when she talked to you?
A. I said I’m not going to talk to you, point-blank, you know.
And she said ‘We have nothing to talk about.’
Q. But you didn’t say anything to her about the statement, ‘Your mama,’ or anything like that that night, did you?
A. I didn’t — . I didn’t talk to the lady.”

The line of questioning which ultimately resulted in a Doyle violation began with the foregoing. Then Officer Martin was called in rebuttal. The prosecutor’s questions to her were apparently designed to respond to defendant’s testimony on cross-examination when he stated that he could not remember whether he told Officer Martin, at the time of his arrest, that he did not remember whether he was in a fight in a city parking lot on the night in question. The questions she was asked and her answers were as follows:

“Q. [Prosecutor:] Did you advise the defendant of his rights, commonly called his Miranda rights, prior to talking to him?
A. [Officer Martin:] Yes, sir, I did.
Q. That’s the right to remain silent ***?
A. Yes.
Q. Did you question the Defendant concerning the incident at the City Market parking lot that we’ve testified to here today already?
A. Yes, sir.
Q. And what was your first question to [defendant] regarding that incident?
A. I asked him if he remembered being involved in the fight on that day and time in the city parking lot.
Q. What was his first response to your question?
A. T do not remember, and I do not wish to talk about it.’
Q. After he made the statement that he didn’t wish to talk about it, you acknowledged his right to remain silent, and you didn’t question him any further?
A. No, sir, I did not.”

Thus, when the prosecutor cross-examined defendant in regard to a statement concerning his lack of remembrance about the fight, the prosecutor did so in the face of his own witness’ statement that in the same breath he informed her he did not want to talk. The defendant maintains this, of itself, was enough to create plain error. We need not decide that because, with Officer Martin’s testimony, the State put before the jury testimony that Miranda warnings were given defendant and he then stated he would not talk. Even if testimony that defendant had stated he could not remember the fight was properly presented, the testimony that he stated he would not talk was a direct Doyle violation requiring grant of a new trial.

We need not consider defendant’s contentions concerning sentence. We reverse the conviction and sentence and remand for a new trial.

Reversed and remanded.

KNECHT, J., concurs.

JUSTICE STEIGMANN,

dissenting:

While I agree that error occurred in this case, I do not agree that it constitutes plain error, requiring us to reverse even though defendant made no objection at trial. In my opinion, this case is not close to the key authority cited in the majority opinion for concluding that plain error occurred. The behavior of the prosecutor in the present case is not nearly as egregious as that of the prosecutor in Green. In addition, only part of the prosecutor’s questioning was improper. Specifically, when the prosecutor asked the police officer what defendant first said to her regarding if he remembered being involved in the fight in question, she answered: “ T do not remember, and I do not wish to talk about it.’ ” That she testified defendant said “ T do not remember’ ” is clearly admissible; that she testified that defendant then also said “ T do not wish to talk about it’ ” is not admissible and, if defendant had made a timely objection, that testimony should have been stricken and the jury instructed to disregard it.

Likewise, the prosecutor on cross-examination of defendant could properly ask him if he remembered saying to the police officer, “I don’t remember [about the fight].” The other two questions the prosecutor asked were improper because they refer to statements that the defendant did not make after he indicated he did not want to speak further with the officer; still, the earlier statements were admissible.

The plain error rule should be applied only when the error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error. (See People v. Kincy (1982), 106 Ill. App. 3d 250, 258, 435 N.E.2d 831, 837.) The facts of the present case do not meet these standards, and I respectfully dissent.


text:
    JULIE GONZALES, Plaintiff-Appellant, v. PRO AMBULANCE SERVICE et al., Respondents in Discovery-Appellees.
    Fourth District
    No. 4—91—0180
    Opinion filed September 30, 1991.
    Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellant.
    Michael R. Cornyn and David A. Bailie, both of Thomas, Mamer & Haughey, of Champaign, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

On November 28, 1990, plaintiff Gonzales filed a document labeled complaint in discovery against persons and entities described as respondents: Pro Ambulance Service, John W. Wood, Mark Griffith, and Mercy Hospital. Gonzales sought discovery against each respondent, to determine whether each should be named as a defendant “in the above-captioned cause of action.” Gonzales also propounded interrogatories to the same parties.

On January 22, 1991, the respondents filed a motion to quash the interrogatories propounded and dismiss the complaint in discovery, “on the grounds that the Complaint is substantially insufficient in law.” Respondents also claimed a lack of subject-matter jurisdiction pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(1)).

Respondents argued the complaint in discovery was legally insufficient because it failed to name a defendant. They argued section 2— 402 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402) allows the designation of respondents in discovery only in the context of an existing lawsuit with a named defendant. Plaintiff’s failure to name a defendant rendered the pleading legally insufficient under section 2— 615(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(a)) and left the circuit court without subject-matter jurisdiction under section 2 — 619(a)(1) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a)(1)). Respondents claimed the proceedings were a nullity.

On February 6, 1991, the Champaign County circuit court concluded it did not have subject-matter jurisdiction.

“The ‘Complaint in Discovery’ here is not an action or suit against anyone; does not raise a controversy; is not seeking redress, remedy, or relief; is not praying for a judgment or decree. It does not initiate a justiciable controversy. It does not contain justiciable issues. If there is any semblance of jurisdiction a basis for it must be found in the language of the statute. The court does not find it.”

Gonzales appeals from the circuit court’s order dismissing her complaint in discovery. We affirm.

Section 2 — 402 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402) states, in pertinent part: :

“The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants ***.” (Emphasis added.)

On appeal, the plaintiff maintains the purpose of section 2 — 402 is to allow the filing of a complaint in discovery before naming defendants in the lawsuit. She relies on the historical and practice notes accompanying section 2 — 402 of the Code as support for the argument; these historical and practice notes state, in part: “The procedure *** is designed to reduce the number of individuals actually made defendants in such actions by giving the plaintiff a mechanism for conducting efficient and effective discovery concerning a malpractice claim before he has to make a decision on whom to sue.” Ill. Ann. Stat., ch. 110, par. 2 — 402, Historical and Practice Notes, at 342 (Smith-Hurd 1983).

The wording of the statute, however, clearly indicates respondents in discovery may be included in a complaint which already names one or more defendants. The cases plaintiff cites support this interpretation. In Murphy v. Giardina (1980), 82 Ill. 2d 529, 413 N.E.2d 399, the plaintiff sued Giardina alleging medical malpractice. The plaintiff subsequently filed a first-amended complaint naming Giardina as the defendant and Vento, Cortis, and St. Anne’s Hospital as respondents in discovery. The respondents moved to dismiss the amended complaint alleging section 2 — 402 (formerly Ill. Rev. Stat., 1976 Supp., ch. 110, par. 21.1) applied prospectively only and was unconstitutional. The trial court held the statute invalid. The supreme court concluded the statute was inapplicable because it had prospective effect only. Thus, as to the first-amended complaint, the court stated:

“[It] did not constitute a complaint at law; it was simply a discovery device. It did not charge the respondents with actionable conduct or seek damages from them. As plaintiff admits in his brief, the respondents were named for the purpose of obtaining 1 “information essential to the determination of who should properly be named as additional Defendants in this action” and as relief sought “prompt response to all discovery sought,” without asserting allegations of negligence, or of damages proximately caused by the conduct of the individual Respondents In Discovery ***.’ ” (Emphasis added.) (Murphy, 82 Ill. 2d at 533, 413 N.E.2d at 401.)

Because both complaints therein named Giardina as the defendant, Murphy is distinguishable from the complaint filed by Gonzales in this case. We interpret the supreme court’s opinion to mean the first-amended complaint in Murphy was a discovery device only as to the respondents in discovery. The complaint was a legally sufficient complaint at law as to Giardina, the named defendant. An extension of this reasoning leads to the conclusion that a complaint naming only respondents in discovery is not a complaint at law, as it does not charge actionable conduct or seek damages.

The plaintiff also cites Hugley v. Alcaraz (1986), 144 Ill. App. 3d 726, 494 N.E.2d 706. There, the plaintiff filed a medical malpractice action on February 6, 1981, naming Ilagan, Angulo, and Alcaraz as respondents in discovery. She obtained service of summons on Ilagan and Angulo but not Alcaraz. Ilagan and Angulo moved for dismissal from plaintiff’s suit because she failed to comply with section 2 — 402 when she failed to name them as defendants within six months of naming them as respondents in discovery. The court granted the motions to dismiss. The plaintiff voluntarily dismissed the action on December 9, 1983. On February 4, 1984, she refiled the suit naming Alcaraz as defendant. Alcaraz moved to dismiss for failure to comply with the applicable statute of limitations. The trial court denied the motion and Alcaraz appealed.

The appellate court concluded the naming of Alcaraz as a respondent in discovery did not toll the statute of limitations and, thus, the plaintiff was barred from filing a suit naming him as a defendant, as the limitations period had expired. In dicta, the court stated:

“An action filed pursuant to the provisions of section 2 — 402 is a special statutory action if an action at all. It creates a procedural right to name a party as a respondent in discovery for the purpose of discovery against whom one may or may not have a cause of action. It opens the door to a substantive right of broad discovery unknown to the common law by which time is made an inherent element of the right.” (Hugley, 144 Ill. App. 3d at 734, 494 N.E.2d at 710.)

These statements are merely descriptions of section 2 — 402 and its function and purpose. The statutory language, however, clearly requires the plaintiff name a defendant: “plaintiff *** may designate as respondents in discovery *** those individuals *** other than the named defendants.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402.) This court’s earlier interpretation of the legislative history of section 2— 402 does not contradict our conclusion in this case.

In Clark v. Brokaw Hospital (1984), 126 Ill. App. 3d 779, 467 N.E.2d 652, this court determined:

“The legislative history of section 2 — 402 indicates that its purpose was to provide plaintiff’s attorneys with a means of filing medical malpractice suits without naming everyone in sight as a defendant. It was believed that the label of ‘defendant’ in a medical malpractice suit contributed to the spiraling cost of medical malpractice insurance. See transcript of proceedings, House of Representatives, June 10, 1976, at 32-33.” (Clark, 126 Ill. App. 3d at 783, 467 N.E.2d at 655.)

Although the statute does not require “naming everyone in sight as a defendant,” it clearly requires naming at least one party as a defendant.

The Third District Appellate Court, in dicta, reached the same conclusion. In Guertin v. Guertin (1990), 204 Ill. App. 3d 527, 561 N.E.2d 1339, the relief sought was an equitable bill of discovery. The plaintiff wanted to depose one of the decedent’s siblings before filing a complaint, to determine if the sibling influenced the decedent in naming another sibling and his spouse as joint tenants in a certificate of deposit. The appellate court disagreed with the plaintiff’s assertion that section 2 — 402 is a codification of the common law equitable bill of discovery. “By the very clear language of section 2 — 402 *** it is contemplated that a complaint has been filed with at least one named defendant before a party may employ section 2 — 402.” Guertin, 204 Ill. App. 3d at 531, 561 N.E.2d at 1342.

The Fifth District Appellate Court recently considered this issue and also concluded section 2 — 402 “clearly contemplates the existence of a named defendant.” Jacobs v. Abbott Laboratories (1991), 213 Ill. App. 3d 998, 1001, 572 N.E.2d 1231, 1233.

The Champaign County circuit court properly concluded it lacked subject-matter jurisdiction because Gonzales’ complaint failed to name a defendant. Plaintiff failed to meet the clear requirements of section 2 — 402, which specify a respondent in discovery may be designated in addition to a named defendant. The judgment of the Champaign County circuit court is affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


text:
    BETTY JO ARMOUR, Plaintiff-Appellant, v. WALTER PETERSEN, Respondent in Discovery-Appellee.
    Fourth District
    No. 4—91—0299
    Opinion filed September 30, 1991.
    Robert I. Auler, of Auler Law Offices, P.C., of Urbana, for appellant.
    David A. Bailie, of Thomas, Mamer & Haughey, of Champaign, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On August 6, 1990, Betty Jo Armour filed a complaint in discovery against respondent in discovery, Dr. Walter Petersen. Armour sought discovery against Dr. Petersen to determine whether he should be named as a defendant “in the above-captioned cause of action.” On January 31, 1991, Armour filed a motion to add respondent in discovery, Dr. Petersen, as a defendant. Armour attached a complaint, naming Dr. Petersen as the defendant, to the motion.

The complaint alleged negligence and res ipsa loquitur. Armour claimed Dr. Petersen performed surgery on her left wrist on August 9, 1988, and failed to timely remove a Silastic drainage tube from the wrist, causing injury.

Dr. Petersen filed an objection to Armour’s motion to add defendant and a motion to dismiss the complaint in discovery. He argued the complaint in discovery was substantially insufficient in law because it failed to name a defendant. He claimed section 2 — 402 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402) allows the designation of a respondent in discovery only in the context of an existing lawsuit with a named defendant. Armour’s failure to name a defendant rendered the pleading legally insufficient under section 2 — 615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) and left the circuit court without subject-matter jurisdiction under section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). Dr. Petersen claimed the proceedings were a nullity.

The motion to dismiss the complaint, which was filed with the motion to add defendant, alleged the two-year statute of limitations applicable to medical negligence suits (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212) had expired before the motion to add defendant was filed.

On March 27, 1991, the Champaign County circuit court concluded it lacked subject-matter jurisdiction and granted the motions to dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code. Armour appeals from this order. We affirm.

Section 2 — 402 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 402) states, in pertinent part:

“The plaintiff in any civil action may designate as respondents in discovery in his or her pleading those individuals or other entities, other than the named defendants, believed by the plaintiff to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons or entities so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants ***.” (Emphasis added.)

This court addressed this same issue in Gonzales v. Pro Ambulance Service (1991), 219 Ill. App. 3d 284, and held section 2 — 402 clearly requires the naming of a defendant. Respondents in discovery may then be designated in addition to the named defendants. The Fifth District Appellate Court recently considered this issue and also concluded section 2 — 402 “clearly contemplates the existence of a named defendant.” Jacobs v. Abbott Laboratories (1991), 213 Ill. App. 3d 998, 1001, 572 N.E.2d 1231, 1233.

Armour’s failure to name a defendant in her complaint for discovery deprived the circuit court of subject-matter jurisdiction. The motion to add Petersen as a defendant was filed after the statute of limitations had run. The court properly granted the motions to dismiss. The order of the circuit court is affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.