text:
    The People of the State of Illinois, Plaintiff-Appellant, v. John Henry Wilson, a/k/a Johnny Scott, Defendant-Appellee.
    (No. 73-11;
    Fifth District
    May 13, 1974.
    Robert H. Rice, State’s Attorney, of Belleville (James W. Jerz and Edward N. Morris, of Model District State’s Attorneys Office, of counsel), for the People.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On June 23, 1971, the defendant was indicted for burglary in St. Clair County. He was released on bond, but, after he failed to appear for trial on September 13, 1971, the bond was forfeited. The bond was reinstated, however, on September 20, 1971.

On February 11, 1972, the defendant was arrested in St. Clair County and was held without bond on charges of murder and armed robbery. He was indicted for those offenses on April 19, 1972. On May 12, 1972, the defendant filed a motion to suppress certain identification testimony in the murder and armed robbery case. This motion was never set for hearing and was never passed upon by the court.

On May 17, 1972, a jury found the defendant guilty of burglary, and on August 2, 1972, he was sentenced to serve 3 to 10 years in the penitentiary for that offense.

On June 20, 1972, the defendant filed a motion for discharge on the murder and armed robbery indictment alleging that the State had failed to comply with the speedy trial requirement of section 103 — 5 of the Code of Criminal Procedure (Ill. Rev. Stat. ch. 38, sec. 103 — 5). After a hearing was held, the circuit court granted the motion, and the State appeals from that order.

The defendant relies upon section 103 — 5(a) of the Code (Ill. Rev. Stat. ch. 38, sec. 103 — 5(a)) which provides that:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant * * *."

The defendant asserts that, since he was not brought to trial for the offense of murder and armed robbery within 120 days of February 11, 1972, the circuit courts’ discharge must be affirmed.

The State relies upon section 103 — 5(e) of the Code (Ill. Rev. Stat. ch. 38, sec. 103 — 5(e)), which provides:

“If a person is simultaneously in custody upon more than one charge pending against him in the same county, or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by sub-paragraphs (a) and (b) of this Section. Such person shall be tried on all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered * *

The defendant- asserts that, since he was on bond for the burglary charge even after he was arrested and incarcerated for the murder and armed robbery charges, he was not “simultaneously in custody” on all of the charges, and section 103 — 5(e) is not applicable. We do not agree.

In People v. Allen, 7 Ill.App.3d 875, 289 N.E.2d 21, the defendant had been indicted for the offense of intimidation, on October 31, 1968. While it is not specifically stated in the opinion, it appears that the defendant was not incarcerated at that time. On January 24, 1969, the defendant was arrested for the offense of armed robbery and several other offenses, and he was indicted for those charges on January 27, 1969. Several delays occasioned by the defendant deferred the trial on the intimidation charge until May, 1969, but the defendant was found guilty of that offense on May 16, 1969. On August 29, the State requested a 60-day extension of time, and on September 8, 1969, the court granted that request. Ill. Rev. Stat. 1967, ch. 38, sec. 103 — 5(e), which is substantially identical to the current section 103 — 5(e), provided for such an extension of time. On October 14, 1969, the defendant filed a motion for discharge on the armed robbery indictment on the ground that he had not been brought to trial within 120 days of his incarceration. The motion was denied, and the defendant was subsequently convicted of armed robbery. The appellate court, holding that the defendant had been “simultaneously in custody upon more than one charge,” determined that subsection (e) was applicable, and the conviction was affirmed.

Section 103 — 5(e) was intended to preserve a defendant’s right to a speedy trial and at the same time to mitigate the State’s burden of preparing more than one charge for trial against a single incarcerated defendant. It would be unreasonable in many instances to expect the State to be prepared for trials on more than one charge against one defendant in only 120 days. We believe that this protection was intended to be afforded the State in all cases in which the defendant is in custody and in which more than one charge is pending. The fact that the defendant is technically on bond for one of the charges should not defeat the purpose of the statute. Based upon that rationale and upon People v. Allen, we hold that, when a defendant is simultaneously charged with more than one offense and when he is in custody, he is “simultaneously in custody upon more than one charge” within the meaning of subsection (e).

Because section 103 — 5(e) was applicable in the instant case, the State had 160 days from the date of judgment rendering the defendant guilty of burglary in which to try the defendant for the other charges. The circuit court erred, therefore, in granting the defendant’s motion for a discharge before the 160-day period had run.

Even if we were to hold that section 103 — 5(e) did not apply in-the instant case, however, the circuit court’s order requires reversal. If subsection (e) was not applicable, section 103 — 5(a) would be the relevant provision. As previously mentioned, that section requires that an incarcerated defendant be tried within 120 days from the date he is taken into custody unless the defendant himself causes the delay. It is well settled that a defendant’s right to a speedy trial is not violated if the delay is the result of motions filed by the defendant. (People v. Edwards, 55 Ill.2d 25, 302 N.E.2d 306.) Where an accused in any manner causes delay in trial by his own action, the 120-day period is tolled and begins to run anew from the date the delay occurred. People v. Hamby, 27 Ill. 2d 493, 190 N.E.2d 289; People v. Taylor, 123 Ill.App.2d 430, 258 N.E.2d 823.

In the instant case, the defendant filed a motion to suppress identification testimony on May 12, 1972. That motion alleged that the defendant was .arrested without a warrant and without probable cause, that the identification of the defendant by a witness was induced by the police and that the defendant was not advised of his right to have counsel present at the time of the “police confrontation.” The disposition of the motion clearly would'have required the holding of an evidentiary hearing and resulted in some delay — a delay occasioned by the defendant.- It has been held that a - defendant’s motion to suppress identification does toll the running of the 120-day statute. People v. McDonald, 4 Ill.App.3d 62, 278 N.E.2d 91; People v. Schoeneck, 1 Ill.App.3d 395, 274 N.E.2d 483..

The defendant maintains that no actual delay was occasioned because a- hearing was never held on the motion. That argument lacks merit. In People v. Ross, 132 Ill.App.2d 1095, 271 N.E.2d 100, the defendant, while free on bond, filed a pre-trial discovery motion and a motion to suppress evidence. Neither the defendant or the State requested a hearing on the motions, however, and no action was taken in the case until the chief judge set the case for trial on his own motion 6 months after the motions had been filed. The defendant then moved for a discharge because his right to a speedy trial had been denied, and the motion was granted. The appellate court reversed the circuit court and held that the burden wás upon' the defendant to request a hearing on his motions. The appellate court reasoned that the defendant knew that a disposition of his motions would necessitate some delay and that the defendant’s quiescence amounted to an acquiescence in the delay.

In the instant case we hold that when the defendant filed his motion. on May 12, 1972, he knew or should have known that- some delay would result. The defendant’s election to file the motion, therefore, constituted acquiescence in at least a short delay. Since he did not pursue his motion he was not in a position to complain when, as here, the total time elapsed from the time of his arrest to the date of filing the motion for discharge was 130 days. We hold, therefore, that the Circuit Court of St. Clair County erred in granting the motion to discharge.

For the foregoing reasons the order of the Circuit Court of St. Clair County discharging the defendant is reversed.

Order reversed.

EBERSPACHER and CARTER, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

license: Public Domain

text:
    Floyd Schlueter et al., Plaintiffs-Appellees, v. County of St. Clair, Defendant-Appellant—(Mrs. Dale Helms et al., Intervening Defendants-Appellants.)
    (No. 72-305;
    Fifth District
    May 15, 1974.
    Freeark, Gunn & Harvey, of Belleville (Ted Harvey, Jr., of counsel), for appellants Mrs. Dale Helms et al.

    Robert H. Rice, State’s Attorney, of Belleville (Eugene H. Widman, Assistant State’s Attorney, of counsel), for appellant County of .St, Clair,

      Karas, Starnes, Nester & Stegmeyer, of Belleville (John M. Karas, of counsel), for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendants appeal from a declaratory judgment which held the zoning ordinance of St. Clair County unconstitutional and void in its application to plaintiffs’ property prohibiting its use as a sanitary landfill.

After plaintiffs’ petition to re-zone the real estate in question was denied by the St. Clair County Board of Supervisors, the plaintiffs filed this action for declaratory judgment in the circuit court of St. Clair County alleging that the St. Clair County zoning ordinance was unconstitutional as it applied to the real estate owned by the plaintiffs. The trial court granted judgment for the plaintiffs and directed the Zoning Board to issue a special use permit. The County of St. Clair and intervening defendants-appellants appeal.

The sole argument raised by the defendants on appeal is that the St. Clair County zoning ordinance is not unconstitutional as applied to plaintiffs’ property. Appellees contend the opposite.

The general scheme of zoning may be valid, yet, when applied to a particular piece of property and a particular set of facts and circumstances, it may be so arbitrary and unreasonable as to result in a confiscation of the property. In that situation, as applied to the disputed real estate, the ordinance is void. Yokley, Zoning Law and Practice, vol. 1, p. 64, par. 2 — 16; Johnson v. Village of Villa Park, 370 Ill. 272; Lee v. City of Chicago, 390 Ill. 306; Anderman v. City of Chicago, 379 Ill. 236.

Intervening defendants’ primary objection to the establishment of a landfill which would be located on land that had formerly been strip mined is grounded on their fear that a landfill operation would contaminate their water wells.

Dr. Robert Bergstrom, head of the Ground-Water Geology Section of the Illinois Geological Survey, conducted tests at the proposed site, submitted a report to the Environmental Protection Agency on August 2, 1971, and testified before the Zoning Board of Appeals and at the hearing before the court. He testified that there was no probability of leachate from the sanitary landfill contaminating surrounding water wells or ground water. Ground water at present is moving into the strip-mined area and away from surrounding water wells. Even if a ground water mound formed in the strip mine, the movement of ground water into the mine could be continued by controlling the level of the lake on the eastern portion of the mine. Even if the water were to move laterally out of the mined area, the leachate would be demi'neralizd by moving through the glacial drift. In short, it was his opinion as an experienced geologist that there was practically no possibility of pollution to surrounding ground water reservoirs or wells; that no undesirable effects would ever occur to users of ground water in the area. No evidence of a scientific nature was offered to refute his findings and opinion. He recommended that monitoring wells be drilled in and around the landfill site as an added precaution to monitor ground water movement and insure that no pollution of sunrounding water wells or ground water reservoirs occurred. These wells were required as a special condition in the permit issued by the Environmental Protection Agency. He concluded that a properly operated sanitary landfill did not pose a hazard to ground water reservoirs and additionally was a means of reclaiming the strip-mine lands for productive purposes. He stated that the site in question would be perfectly safe as a municipal-type sanitary landfill for which a permit had been issued.

Wilbur Palmquist, head of the Land Pollution Control Division of the Environmental Protection Agency, was of a like opinion that this worked-out strip mine was a perfectly safe place to conduct a sanitary landfill. He stated that "exorbitant” safeguards were required under the permit issued by his agency which would additionally conduct periodic inspections of the site. Access to the landfill would be from Illinois Route 157, a heavily traveled two-lane road which runs from the Belle-ville area, south to Cairo, Illinois and southern states. Commercial vehicles of all types use these roads. The evidence was that the maximum of perhaps 120 sanitary-refuse trucks that would bring municipal refuse to the landfill would be an insignificant addition to the existing traffic on these highways. Access to the landfill itself from Route 157 would be over a private haulage road.

There was also the suggestion that leachate might escape from the strip mine into old underground mines in the area. Maps from the Illinois Bureau of Mines and from Peabody Coal Company were introduced in evidence. Henry Davis, an engineer with Peabody Coal Company, testified and was of the opinion that there had been no breakthrough from underground mines into the strip-mined area. If this had occurred, it would have been apparent at the time the strip mine was in operation. This was also confirmed from test borings made by Peabody to locate existing coal and, additionally, to rule out such a possibility.

One of the witnesses for the defendants testified that he lived on the edge of the strip-mine area for 11 years; that there was a well on his land which' produced water until the strip mine got there. When the strip mine got to within 1000 feet of his ground, the well dropped to a depth of 1 to feet and he had to haul water in. However, he drank the water from the well all of the time that he lived there.

Another witness testified that he lived 1200 feet from the water pit that was on the strip-mine area; that he had a water well on his property and that all during the time the strip mine was in operation neither the depth nor clarity of tire water was affected. He further testified that from his own memory he knew that the Sugar Creek Mine had a mine shaft another 1800 feet from the strip-mine ground and an air shaft about 300 feet closer.

The trial court found that the land in question could not at present be used productively for agricultural purposes but could be reclaimed for productive agricultural use by the operation of a sanitary landfill; that expert scientific evidence established that ground waters and neighboring water wells would not be contaminated or affected by the operation of the landfill; that no appreciable increase in traffic would result; that surrounding property values would not be diminished; that the operation of a landfill could result in the reclamation of the strip-mine property and should appreciate the surrounding property. The court further found that the value of plaintiffs’ property would be greatly reduced if their application was denied, while there would be no gain to the public and the adjoining land owners if the permit was denied.

In First National Bank v. County of Lake, 7 Ill.2d 213, 226, 228, our supreme court said:

“* ® * Where there is room for a legitimate difference of opinion concerning the reasonableness of an ordinance governing the use of private property or where such question of reasonableness is fairly debatable, the courts will not interfere with the legislative judgment. [Citations.] Among the particular facts and circumstances to be taken into consideration in determining whether a purported exercise of the police power is so unreasonable and confiscatory as to constitute an unlawful invasion of private rights are the character of the neighborhood; the zoning classification and use of nearby properties, the extent to which property values are diminished by tire particular zoning restrictions involved, and the gain to the public compared to tire hardship imposed on the individual property owner. * * *
6 # #
In determining the validity or invalidity of a given zoning classification, the question as to whether or not it is in conformity with surrounding existing uses and the zoning classification of nearby property is considered of paramount importance.”

We find there was no room for difference of opinion as to the reasonableness of the ordinance in question as applied to plaintiffs’ property, nor was this question fairly debatable.

The trial court’s findings in this case are supported by clear and convincing evidence. The judgment of the trial court of St. Clair County is affirmed.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Spurlock et al., Defendants-Appellants.
    (No. 72-229;
    Fifth District
    May 16, 1974.
    Robert E. Farrell and Theodore A. Gottfried, both of Office of the State Appellate Defender, of Mt. Vernon, for appellants.
    W. C. Spomer, State’s Attorney, of Cairo, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from judgments entered by the circuit court of Alexander County against the defendants, Spurlock, Lyerla and Pearl, to pleas of guilty on indictment for burglary.

Each of the defendants was indicted for the offense of theft, burglary, and possession of explosives. The defendants, after originally pleading not guilty, pled guilty to burglary, and, pursuant to a plea agreement, the other charges were dismissed. Defendant Spurlock was sentenced to 1 to 2 years in the penitentiary while the other two defendants, Lyerla and Pearl, were placed on probation for 2 years. Defendants appealed, requesting that the convictions be reversed and the causes remanded to allow them to plead anew.

The defendants first contend that they did not knowingly waive their rights to remain silent and to have a jury trial. Next, the defendants assert that their guilty pleas were not voluntarily entered.

The defendants’ assertion that they did not voluntarily enter their guilty pleas will be considered first. This argument is based on the rule that a plea of guilty induced by unfulfilled promises loses its voluntary nature and shall be considered void. People v. Pier, 51 Ill.2d 96, 281 N.E.2d 289; People v. Mitchell, 46 Ill.2d 133, 262 N.E.2d 915; People v. Washington, 38 Ill.2d 446, 232 N.E.2d 738.

In the instant case the defense counsel advised the court that the guilty pleas were based in part upon the following plea bargaining agreement:

“* ° * and the State would also agree to permit the reservation for purposes of appeal, as to each defendant, all of the three motions to dismiss filed May 30, 1972, by the defense as to each defendant and argued today. And the State would expressly agree that all three are preserved for purposes of appeal whether or not they may be jurisdictional in nature.” (Emphasis added.)

It is apparent these plea negotiations were based on the premise that the pleas of guilty were to be voluntarily and understanding^ made. And, when a plea of guilty is voluntarily and understanding^ entered all errors which are not jurisdictional in nature are waived. (People v. Brown, 41 Ill.2d 503, 244 N.E.2d 159; People v. Goodwin, 5 Ill.App.3d 1091, 284 N.E.2d 430.) Since, in the negotiations the prosecution agreed to the appeal of “motions” which were not jurisdictional in nature, and the denial of such motions would be waived by the contemplated voluntary pleas understandingly entered, neither the prosecution nor the defendants are able to preserve the denial of such “motions” for the purposes of review. As a result the guilty pleas lost their voluntary nature and are deemed void. People v. Pier, 51 Ill.2d 96, 381 N.E.2d 289; People v. Mitchell, 46 Ill.2d 133, 262 N.E.2d 915; People v. Washington, 38 Ill. 2d 446, 232 N.E.2d 738.

We therefore vacate the judgments below. The causes are remanded with directions to allow each defendant to withdraw his plea of guilty and to plead anew. In view of the foregoing it is not necessary to reach defendants’ other contentions.

Judgments below are vacated; causes remanded with directions.

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


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnos Cotton, Defendant-Appellant.
    (No. 73-78;
    Fifth District
    May 16, 1974.
    CREBS, J., took no part.
    . Robert E. Farrell and Lynn Sara Frackman, both of Office of the State Appellate Defender, of Mt. Vernon, for appellant.
    ' Robert H. Rice, State’s Attorney, of Belleville (Clyde L. Kuehn, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM:

The defendant pled guilty to the charge of voluntary manslaughter and requested probation. A combined probation and sentencing hearing was held; probation was denied and the defendant was sentenced to serve 12 tó 20 years in the penitentiary. On direct appeal we affirmed the conviction and modified the sentence to a term of 8. to 20 years. People v. Cotton, 3 Ill.App.3d 706, 279 N.E.2d 62.

The defendant subsequently filed a post-conviction petition alleging that his plea was induced by his retained attorney’s promise that, if he pled guilty, he would receive probation. The petition was supported by affidavits signed by the defendant, his mother, his brother and a friend. Each affiant swore that defense counsel had indeed informed the defendant that he would be placed on probation if he pled guilty. The State filed an affidavit signed by the defense counsel denying that he had made such a promise to the defendant and it moved that the post-conviction petition be dismissed.

The circuit court of St. Clair County dismissed the petition without an evidentiary hearing, and the defendant appeals from that order.

Before the defendant pled guilty he was correctly informed of the possible penalty for the offense charged. He stated that he understood. The defendant was then admonished that the court was not bound by any promises or inducements made by any person and that it was “up to the court as to what should be done.” The defendant again stated that he understood.

In dismissing the post-conviction petition the circuit court reasoned that the admonishments made to the defendant when he pled guilty refuted the allegation made in the post-conviction petition to such an extent that an evidentiary hearing was not required. We agree.

In People v. Dodd, 6 Ill.App.3d 485, 285 N.E.2d 582, this court was faced with a factual situation nearly identical to that in the instant case. We affirmed the circuit court’s dismissal of a post-conviction petition without an evidentiary hearing and stated:

“The trial judge explained the possible sentences he could impose and the defendant unequivocally stated that he understood. Finally, the trial judge asked the defendant if he understood that he was not bound by any recommendation and that the sentence was entirely up to the trial judge. The defendant again unequivocally stated that he understood. This clearly shows that the defendant understood that any promise made to him by his counsel was not binding on the trial court and would be a worthless ground to rely upon in pleading guilty.” (6 Ill.App.3d 485, 486, 285 N.E.2d 582, 583.)

The same reasoning is applicable in the instant case.

As the Supreme Court stated in People v. Spicer, 47 Ill.2d 114, 119, 264 N.E.2d 181, 184:

“Thus, from the record itself there is no doubt that defendant acted with full understanding at every stage of the proceedings and that he was not misled, coerced, or wrongly induced to enter his guilty plea by any unfulfilled promise or otherwise.”

See also People v. Morris, 43 Ill.2d 124, 251 N.E.2d 202, and People v. Arbuckle, 42 Ill.2d 177, 246 N.E.2d 240.

We hold that the trial court did not err in dismissing defendant’s petition without an evidentiary hearing.

Judgment affirmed.

CREES, J., took no part in the consideration or decision of this case.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Otis Nelson, Defendant-Appellant.
    (No. 73-104;
    Fifth District
    May 16, 1974.
    Robert E. Farrell and Richard E. Cunningham, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Philip G. Feder, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.

CREBS, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Roddy, Defendant-Appellant.
    (No. 73-79;
    Fifth District
    May 17, 1974.
    Robert E. Farrell and Timothy F. Flynn, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahlmann, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment entered by the circuit court of St. Clair County against the defendant, Michael Roddy, on his plea of guilty on an indictment for burglary. After a combined hearing on probation and sentencing was held, the defendant was denied probation and sentenced to not less than 5 years and not more than 15 years in the penitentiaiy.

The defendant contends: first, that the trial court failed to substantially comply with the requirements of Supreme Court Rule 402 because it failed to admonish the defendant concerning the nature of the charge; secondly, that the trial court failed to substantiaUy comply with Supreme Court Rule 402 because it did not, by addressing the defendant personally in open court, inform the defendant of his right, or determine that the defendant understood his right, to plead not guilty or to persist in such a plea; and lastly, that the sentence imposed was excessive.

We shall first consider the contention that the trial court failed to inform the defendant of the nature of the charges as required by section (a)(1) of Supreme Court Rule 402. In the instant case the defendant was given a copy of the indictment at his arraignment. Approximately 8 weeks later the defendant entered a plea of guilty. Although the trial judge referred to the alleged offense by name he made no attempt to explain the nature of the offense, to read the indictment or the relevant section of the Crimial Code or even to ask the defendant if he understood the charge. The record does, however, contain a recitation of facts made by the prosecuting attorney to the trial judge whereby a factual basis for the plea was determined.

The State argues that the defendant fully understood the nature of the charge because he, the defendant, had previously been furnished with a copy of the indictment and, in addition, he had been present and he had heard the prosecuting attorney recite the. facts upon which the charge was based. A similar argument was advanced in People v. Billops, 16 Ill.App.3d 892, 307 N.E.2d 206, wherein this court held, under a similar set of facts, that the failure of the trial court “to address the defendant personally, informing him. of and determining that he understood the nature of the charge, constitutes a substantial deficiency in complying with the rule and is reversible error.”

We are, of course, well aware of our holding in People v. Witherspoon, 17 Ill.App.3d 842, 308 N.E.2d 844, which the State cites for the proposition that a reasonably clear and hard-to-misunderstand statement of the facts of the offense, which is acknowledged by the defendant as accurate, will provide substantial compliance with Supreme Court 402(a)(1). In Witherspoon we reiterated our position in Billops by distinguishing the two cases as follows: “In the present case [Witherspoon] the trial court addressed the defendant personally after the recital of the facts of the crime by the state’s attorney, while in Billops the trial court did hot.” (People v. Witherspoon, 17 Ill.App.3d 842, 847, 308 N.E.2d 844, 847.) In the instant case the trial court did not personally address the defendant with respect to the accuracy of the facts as recited by the prosecuting attorney.

Without such a personal acknowledgment by the defendant, there is no reason for not adhering to our interpretation of Supreme Court Rule 402(a) (1) as set forth in Billops. Accordingly, we find that the trial court failed to substantially comply with the requirements of Supreme Court Rule 402(a)(1); the judgment of the circuit court of St. Clair County is reversed and this cause is remanded with directions that the defendant be permitted to plead anew. In view of this conclusión it is not necessary for us to reach the defendant’s other contentions.

Reversed and remanded with directions.

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


author: Mr. PRESIDING JUSTICE EBERSPACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard L. Dovin, Defendant-Appellant.
    (No. 73-118;
    Fifth District
    May 17, 1974.
    Harris and Lambert, of Marion, for appellant.
    "Snyder Howell, Assistant State’s Attorney, of Marion, for the People.
   Opinion by

Mr. PRESIDING JUSTICE EBERSPACHER.


text:
    Elizabeth Ann Reinhardt, Plaintiff-Appellee, v. Board of Education of Alton Community Unit School District No. 11, Defendant-Appellant.
    (No. 73-189;
    Fifth District
    May 20, 1974.

      Harold G. Baker, Jr., of Belleville (John M. Ferguson, of counsel), for appellant.
    Richard Shaikewitz, of Wiseman, Shaikewitz & McGivem, of Alton, for appellee.
    Barbara O’Toole, of American Civil Liberties Union, of Chicago, for amicus curiae.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The Board of Education of Alton Community Unit School District No. 11, Madison and Jersey Counties, Illinois, hereinafter referred to as the Board, appeals from a judgment of the Circuit Court of Madison County reversing the action of the Board dismissing plaintiff-appellee from her employment as a teacher.

During the 1971-1972 school year and for 12 years prior appellee taught school in defendant Board’s district. In 1971 during the Christmas recess, when 8Vz months pregnant and married for less than 1 month, she told the administrative assistant to the superintendent in charge of elementary education that she would not be able to return to work until March 1. Arrangements were made for a temporary substitute.

A month and a half later, on February 9, 1972, the superintendent of schools called her to his office and suggested that it would be in her and the Board’s best interest if she would resign. The next day she signed a letter of resignation which 2 days later she withdrew. The effectiveness of this withdrawal is not disputed.

On February 29, 1972, the day before her anticipated return to teaching, the Board held a special meeting at which they reviewed a report concerning her and adopted a resolution discharging appellee “for the grounds of immorality and because, in the opinion of this Board of Education, the interests of the schools of this school district require such dismissal” and finding that “none of said grounds for dismissal is remedial.” At appellee’s request, a bill of particulars was furnished and a hearing held on April 20 and April 26, 1972. At the end of the hearings the Board voted that cause existed to support the dismissal. Appellee then filed a complaint for administrative review pursuant to the teacher tenure law (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 16). The Circuit Court of Madison County reversed the decision of the Board. The Board appeals.

Under the provisions of the Administrative Review Act, this court in reviewing the decision of the circuit court in this case is confronted with two questions: (1) Does the record show that the steps and procedures required by law were taken, and (2) if so, is or is not the decision of the Board or administrative agency against the manifest weight of the evidence? Waller v. Board of Education, 13 Ill.App.3d 1056, 302 N.E.2d 190.

The steps and procedures required in this case are set out in the teacher tenure law (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 1 et seq.). Appellee is a tenured teacher and thus is protected by the provisions of section 24 — 12:

“Before service of notice of charges on account of causes that are considered remediable, the teacher shall be given reasonable warning in writing, stating specifically the causes which, if not removed, may result in charges. The decision of the board as to the existence of reasons or- causes for dismissal or removal is final unless reviewed as provided in Section 24 — 16 of this Act.”

Section 24 — 16 of the teacher tenure law makes applicable the provisions of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) to decisions of school boards.

As stated in Waller, supra:

“We consider the right of a teacher to be informed about the causes that are remediable and to have an opportunity to correct such causes as extremely important and one that goes to the heart of the tenure system. We do not believe that a record which fails to show that the board took proper cognizance of this provision is sufficient. * * *
* * *
[A] record cannot be properly reviewed on appeal unless there is a showing that the Board made a determination regarding the remediability of causes and unless its reasons are expressed in such fashion that the reviewing court can pass judgment on them.” 13 m.App.3d at 1058, 1060.

The only mention of remediability in the record of this case are two conclusory findings by the Board in the resolution and accompanying report adopted on February 29, 1972, that none of the causes are remediable. There is nothing in the record to indicate that it-was considered at the April hearings and there is no statement in the record of the reasoning supporting this decision. In fact, the only difference between the record in this case and in Waller is these two findings. In Waller we reversed the action of the Board as not in accord with the obvious intent of the tenure law and prejudicial to the rights of the teacher. We must do the same here.

For the Board to have found the causes irremediable under the current interpretation of the statute, they must have found that damage had been done to the students, the faculty or the school itself, and that the damage could not have been corrected if warnings had been given by the teacher’s superiors when they learned of the cause. (Wells v. Board of Education, 85 Ill.App.2d 312, 315, 230 N.E.2d 6, 8.) The record of the hearings before the Board discloses no injury to the students, faculty or school. No parents of children in her classroom complained. No students complained. There is no evidence of any breakdown in her relationships with other teachers, no evidence that her teaching ability was' affected in any manner, and no evidence that the standing of the school as an education institution was in any manner affected by appellee’s actions. Without evidence of harm, there cannot properly be a finding of irremediability.

Even assuming that the procedures required by the teacher tenure law were properly followed, the Circuit Court acted properly in reversing the Board’s decision to discharge appellee because that decision was without support in the evidence. Section 10 — 22.4 lists as causes for which a teacher may be discharged the following: Incompetency, cruelty, negligence, immorality, not qualified to teach, other sufficient cause, whenever in the opinion of the Board the interests of the schools require it.

The teacher tenure law was enacted in 1941 to protect teachers from arbitrary Board action (Donahoo v. Board of Education, 413 Ill. 422, 425, 109 N.E.2d 787, 789; Betebenner v. Board of Education, 336 Ill.App. 448, 454, 84 N.E.2d 569, 572) and consistent with this purpose courts have uniformly, when defining sufficient cause for dismissal within the terms of 10 — 22.4, required evidence of injury to students, faculty or the school.

In Hutchison v. Board of Education, 32 Ill.App.2d 247, 177 N.E.2d 420, the Board dismissed a teacher for failure to effectively perform and carry out instructional duties and because the best interests of the school required dismissal. On appeal the court reversed because “no proof of plaintiff’s failure to do his duty or of any action or omission detrimental to the best interests of the school was offered.”

In Allione v. Board of Education, 29 Ill.App.2d 261, 173 N.E.2d 13, a teacher was discharged for insubordination, general attitude and because the best interests of the school required it. The appellate court reversed the decision of the Board and said:

“* * * [W]e find no evidence of any detrimental consequences suffered by the school as a result of plaintiff’s alleged misconduct.
* * * To sustain the Board’s conclusion that the best interests of the school required plaintiff’s dismissal in the absence of proof supporting it, would amount to sanctioning the practice of arbitrarily dismissing teachers without regard to their rights under the Tenure Law.” 29 Ill.App.2d at 267, 68.

We hold that “immorality” like the other causes. listed in section 10 — 22.4 is sufficient cause only where the record shows harm to pupils, faculty, or the school itself. Otherwise we would be subjecting teachers to infinitely variable definitions of morality and thereby interpreting the act in a manner inconsistent with its purpose. A tenured teacher “is entitled to a construction [.of the tenure law] which is consistent with the prime purpose of protecting teachers.” Hauswald v. Board of Education, 20 Ill.App.2d 49, 52, 155 N.E.2d 319, 322.

We adopt the following language of Jarvella v. Willoughby-Eastlake City School District Board of Education, 12 Ohio Misc. 288, 233 N.E.2d 143 (Ct. Common Pleas 1967):

“The private conduct of a man- who is also a teacher, is a proper concern to those who employ him only to the extent it mars him as a teacher. * * * Where his professional achievement is unaffected, where the school community is placed in no jeopardy, his private acts are his own business and may not be the basis of discipline.”

The Board raised three other issues which we find no need to consider because the situations involved were all clearly remediable had proper demand and warning been given. There is no evidence that any order or directive was given appellee concerning these three matters or that any alleged violation of such orders or directives had been called to appellee’s attention until after the Board adopted the resolution dismissing her.

Since there is in the record below no proof of harm to pupils, faculty or the school, the circuit court properly reversed the Board’s action dismissing appellee on the grounds of immorality and best interests of the school district. Such charges were unsupported by the evidence.

Judgment affirmed.

CARTER, J., concurs.

CREBS, J., dissents.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cyril A. Gravot, Defendant-Appellant.
    (No. 73-207;
    Fifth District
    May 20, 1974.

      Cyril A. Gravot, pro se.

    Robert H. Rice, State’s Attorney, of Belleville, and James W. Jerz, of Model District State’s Attorneys Office, of Elgin (Martin P. Moltz, of .counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

In 1967, following defendant’s indictment for murder in St. Clair County, a jury found him to be mentally incompetent, and he was committed to the Department of Mental Health to be confined in the Illinois Security Hospital. On motion of the State, some 6 years later while defendant was still so confined, a second competency hearing was held and it was determined by the court that he was now competent to stand trial. In February, 1973, he was convicted of murder in a jury trial and was sentenced to the penitentiary for a term of not less than 25 nor more than 50 years. In this appeal defendant contends, among other things, that the court erred in finding him competent to stand trial and that he was thereby denied due process of law.

From the record it appears that when court convened for the second competency hearing defendant’s attorney informed the court that defendant desired to waive a jury and. that he also wished to stand on the psychiatric evaluation report which had been filed in the case by the court-appointed psychiatrist. Counsel also stated that in his opinion defendant was aware of the nature of the charge pending against him and he could cooperate with counsel in his defense. The State likewise indicated its willingness to abide by the report of the psychiatrist. The report itself was then discussed and the court stated that from his reading it did not answer the question whether defendant was competent to stand trial, and that, in fact, it was replete with statements that might even indicate otherwise. Both defense counsel and the State concurred, and it was decided that the court should furnish the psychiatrist with the statutory definition of mental competency to stand trial, and request a supplemenary report covering that specific question.

In response to this request the psychiatrist submitted a letter to the court stating that its contents were intended to clarify his previous report. In the letter he states that, in his estimation, defendant knows the nature and purpose of the proceedings against him. He then states:

“As to the ability of the defendant to assist in his defense, the defendant with his behaviour, is attempting to prescribe how the court should deal with him. He is protecting himself through denials, irritations, and a statement that he is innocent. * * * He is overpowering, in his own way, the function of the court. Of course, something is preventing him from wanting to face the charges by surrendering to the rules of the court. He wants to see things from his point of view. He wants to control his destiny from his side (others must obey me).”

The letter then concludes:

“In my estimation, he possesses partial responsibility, and; as such, he could partially assist in his defense. Then it would be up to the court either to refuse to accept as satisfactory the partial indecision and resistance of the defendant to examine the charges, and return him again to the hospital up to the time that he appears more cooperative with the court.
The court could also confront him with any available hard facts and have tire defendant’s attorney assist him in the areas where he needs support (to stop him from running away from the facts he refuses to examine), and, according to his findings, change his status from indefinite to more particular in terms of the future,”

When court was reconvened after receipt of this letter, defense counsel and the State reaffirmed their stipulation that a determination of defendant’s competency should rest upon the opinion of the psychiatrist. Thereafter, specifically basing his finding on said report and supplemental letter, the court found defendant to be competent for the purpose of standing trial, and the case was continued for a trial setting.

The State contends that the proof of defendant’s competency was overwhelming and that any contention to the contrary is totally without, merit. However, other than the report of the psychiatrist, no proof was offered, so that the question is simply whether such report was adequate to.establish competency.

In view of the State’s contention, and though it may seem pedantic, it appears that first we must emphasize those fundamental rules of law providing that an accused may not be tried while he is incompetent, and that if an incompetent person is placed on trial it is a violation of due process (People v. Bender, 20 Ill.2d 45; People v. Burson, 11 Ill.2d 360); and that such protection afforded to an accused is, of course, as old as our concept of liberty. (People v. Reeves, 412 Ill. 555.) Provisions for the implementation of these rules are set forth in section 5 — 2—2 of the Uni; fied Code of Corrections (Ill. Rev. Stat. ch. 38, par. 1005 — 2—2). Subsection (a) provides that a defendant is unfit to stand trial if, because of a mental or physical condition, he is unable (1) to understand the nature and purpose of the proceedings against him, or (2) to assist in his defense. Subsection (e) sets forth the matters admissible on the question of fitness; and subsection (j) places the burden of going forward with tire evidence on the party raising the question. It is also well established that once there has been an adjudication of incompetency, the presumption of incompetency obtains and continues until disproved. People v. Sam-man, 408 Ill. 549; People ex rel. Wiseman v. Nierstheimer, 401 Ill. 260.

It is under these rules that we examine the facts of the case before us. As stated above the present hearing was instigated on motion of the State while defendant was still confined to the Illinois Security Hospital on a previous adjudication of incompetency. Thus, the burden was on the State to overcome the existing presumption of incompetence and prove competence. The only proof offered originally was the psychiatrist’s report which was rejected by the court as being insufficient, and this decision was concurred in by both defense counsel and the State. The supplemental letter, designed to clarify the report was then accepted by the court, again with the concurrence of the parties, as the basis for a declaration of competency. We find this decision most difficult to understand. In our opinion, the supplemental letter only compounds the insufficiency of the original report. It finds that defendant “possesses partial responsibility and, as such, he could partially assist in his defense.” Is this not a contradiction, to equate partial competence with competence? It would appear that even though furnished with the statutory definition of fitness to stand trial, the psychiatrist either did not understand it, or he did not choose to answer the question precisely. His concluding suggestion that the court could, presumably during the trial, return defendant to the hospital until he because cooperative, is unrealistic; and his statement that the court could change defendant’s status, “from indefinite to more particular in terms of the future”, is beyond our comprehension.

Apparently recognizing the deficiencies of the psychiatric report, the State reminds us of the fact that a competency hearing is a civil proceeding and proof of competency need only be by a preponderance of the evidence. This, it is argued, was accomplished not only by the psychiatric report, but by the fact that defendant’s counsel stated that he believed defendant to be competent, and that defendant himself stated that he was convinced that he clearly understood the nature of the charge and was confident of his own ability to cooperate with counsel. We consider this a weak argument indeed, for as stated in People v. McKinstray, 30 Ill.2d 611, to accept a defendant’s opinion that he is able to cooperate with counsel in his defense, when the purpose of the hearing is to determine that very fact, would make a sham out of any competency hearing. And especially would that be true here where by reason of defendant’s previous adjudication he was still enveloped in a presumption of incompetency. As to counsel’s stated beliefs we note that his remarks were not made under oath and could have been made in a sincere effort to satisfy an adamant client. Certainly had he spoken otherwise in front of his client his continued representation might have been of short duration.

In conclusion, we again mention the fact that the very purpose of a hearing to determine fitness for trial is to protect an individual from being placed on trial while incompetent to defend himself. It necessarily follows that a finding of competency must be supported by adequate evidence wholly apart from a defendant’s adamant demand to be placed on trial. Here, we find the record not only insufficient to overcome the continued presumption of defendant’s incompetence based on his previous adjudication, but we find it barren of any evidence of compentence.

Accordingly, we reverse the order of the Circuit Court of St. Clair County finding defendant competent, and, for the reason that he should not have been subjected to trial, we likewise reverse said court’s judgment and conviction of defendant for murder; and the cause is remanded for such further proceedings as may be consistent with this opinion.

Reversed and remanded.

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


text:
    Patricia Rutkowski Tuthill, Plaintiff-Appellant, v. State Farm Insurance Company, Defendant-Appellee.
    (No. 73-56;
    Fifth District
    May 14, 1974.

      Schooley and Hartman, of Granite City (William W. Schooley,.of counsel), for appellant.
    Reed, Armstrong, Gorman and Coffey, of Edwardsville (James E. Gorman, of counsel), for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Madison County, dismissing a complaint for arbitration filed by the plaintiff, Patricia Rutkowski Tuthill, against the defendant, State Farm Insurance Company.

The facts are not in dispute. The plaintiff was riding as a passenger in a car being driven by one Donald Patrick on May 7, 1966, in a southerly direction on Illinois Route 3, approaching the intersection with West Pontoon Road near Granite City, Illinois. As Donald Patrick approached the intersection, he began to manually operate his directional signals indicating his intention to make a left turn. Manual operation of the directional signal was necessary because it was not operating correctly. A Steve Jackson was operating his vehicle immediately to the rear of the Patrick automobile. Upon observing that the signals of the rear of the Patrick vehicle indicated a right turn at the intersection, Steve Jackson started to pass the Patrick automobile. But instead of turning right, Patrick made a left hand turn in front of Jackson who was passing on the left. A collision occurred and the plaintiff, Patricia R. Tuthill received severe facial injuries which required three operations.

At the time of the accident, Steve Jackson was uninsured. Edgar Patrick, the father of Donald Patrick, was insured with the Allstate Insurance Company. The plaintiff, Patricia R. Tuthill, was residing in the home of her father who was insured by the defendant, State Farm Mutual Automobile Insurance Company.

Plaintiff filed suit in the Circuit Court of Madison County against Donald Patrick, alleging wilful and wanton misconduct, and against Steve Jackson, alleging negligence. Plaintiff also scheduled the evidentiary deposition of Steve Jackson on August 4, 1966, and sent notice to the defendant, State Farm, inviting them to participate in the taking of the deposition. The defendant, State Farm, did not appear.

A dispute arose between Allstate and Edgar Patrick as to coverage of the car being driven by Donald Patrick that was involved in the accident. As a result of this dispute, Allstate filed a suit for declaratory judgment to determine its rights and obligations under the insurance policy issued to Edgar Patrick. On motion by the plaintiff, the Circuit Court of Madison County added, as party defendant, State Farm. Summons was served upon State Farm on July 8, 1969, and State Farm obtained an extension of time to plead until September 6, 1969. However, State Farm did not plead further in the action for declaratory judgment. On September 29, 1970, the Circuit Court of Madison County entered a judgment and opinion in the declaratory judgment suit between Patrick and Allstate, holding that the Patrick auto was insured by Allstate at the time of the accident.

Because of the uncertainty surrounding insurance coverage of the accident, plaintiff served notice of an uninsured-motorist claim upon the defendant State Farm on June 20, 1986, and on March 8, 1968.

Plaintiff’s suit against Donald Patrick and Steve Jackson was scheduled for trial several times, but it wasn’t until May 1, 1972, that a jury was selected. On May 2, 1972, the plaintiff and Donald Patrick, represented by Allstate, settled their dispute for the sum of $17,000! The cause is still pending against the uninsured Steve Jackson.

The insurance policy issued by the defendant, State Farm, to the plaintiíFs father, Michael Rutkowski, contains the following exclusionary provision with respect to uninsured-motorist coverage:

“Insuring Agreement III does not apply: (a) to bodily injury to an insured, or care or loss of services recoverable by an insured, with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor * *

The policy also contains the following provision with respect to other uninsured-motorist coverage:

“14. Other insurance.
With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.”

The Allstate insurance policy insuring the automobile in which the plaintiff was riding and its driver, Donald Patrick, contains the following provision concerning recovery by a person under the bodily injury liability coverage (Coverage A) and the uninsured-motorist coverage (Section II):

“If claim is made under this Section II and claim is also made against any person who is an insured under Coverage A of the policy on account of bodily injury sustained in an accident by a person who is an insured under this Section II:”
“2. any payment made under Coverage A to any claimant who is an insured hereunder shall be applied in reduction of any amount which he may be entitled to recover under this Section II.”

The plaintiff then filed a complaint for arbitration in the Circuit Court of Madison County seeking to have the court enter an order determining the rights of the parties under the State Farm policy and, further, requesting that the court require the defendant to appoint an arbitrator, or, in the alternative, to appoint an arbitrator on behalf of the defendant. Subsequently, the defendant filed a motion to dismiss and, after both parties filed various exhibits in support of their contentions, the circuit court entered an order granting defendant’s motion on each of two separate grounds:

“First, the plaintiff settled two independent claims which she had without the consent of the defendant and to the defendant’s prejudice; and,
Second, Condition 14 precludes the further processing of an uninsured motorist claim against State Farm because State Farm’s uninsured motorist coverage is excess to Allstate and because the State Farm uninsured motorist coverage limits do not exceed the applicable limits of the similar Allstate uninsured motorist coverage.”

It is from this order that the present appeal is taken.

Plaintiff-appellant, Patricia R. Tuthill, first contends that an application of the exclusionary provision of the State Farm uninsured-motorist coverage to tort-feasors other than the uninsured motorist places a limitation upon the statutory requirement for uninsured-motorist coverage in effect at the time of the accident (Ill. Rev. Stat. 1969, ch. 73, par. 755a) and therefore is void. That statute — section 143a of the Insurance Code — provides in part as follows:

“* * * [N]o policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued * * * unless coverage is provided therein or supplemented thereto, in limits for bodily injury or death set forth in Section 7 — 203 of the ‘Illinois Motor Vehicle Law,’ * * * for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles * * * because of bodily injury * * * resulting therefrom * * *."

The purpose of this statutory provision requiring that every automobile liability policy shall contain uninsured-motorist vehicle coverage, to at least the same extent compensation was available for injury by a motorist who was insured in compliance with the Financial Responsibility Law (Ill. Rev. Stat. 1969, ch. 95%, par. 7A — 101 et seq.), was

“* * * to place the policyholder in substantially the same position he would occupy, so far as his being injured or killed was concerned, if the wrongful driver had had the minimum liability insurance required by the Financial Responsibilty Act.” Ullman v. Wolverine Insurance Co. (1970), 48 Ill.2d 1, 269 N.E.2d 295; Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill.2d 71, 269 N.E.2d 97; Barnes v. Powell (1971), 49 Ill.2d 449, 275 N.E.2d 377.

The Illinois Supreme Court has also determined that the legislature’s intent in requiring uninsured-motorist insurance is satisfied by coverage which meets the minimum standards specified by the Financial Responsibility Laws. (Morelock v. Millers’ Mutual Insurance Association (1971), 49 Ill.2d 234, 274 N.E.2d 1.) Appellant argues that the policy of insurance issued by the defendant-appellee State Farm attempts to limit the protection provided, by requiring the policyholder to obtain the company’s permission before settlement by the insured with all persons, not merely the uninsured motorist. Citing Prosk v. Allstate Insurance Co. (1967), 82 Ill.App.2d 457, 226 N.E.2d 498, appellant concludes that this provision places a limitation upon the plain meaning of the statute and is therefore void as it applies to persons other than the uninsured motorist, because any attempt by the insurer to dilute or diminish uninsured-motorist protection is contrary to public policy. However, a reading of Prosk indicates that it does not support appeUant’s conclusion. In Prosk, the plaintiff argued that the policy provision requiring “physical contact” for the “hit- and-run” coverage to be effective was void as tending to dilute coverage and, therefore, in conflict with public policy as expressed in section 143a of the Insurance Code. The court in Prosk was not impressed with this argument, and instead chose to uphold the “physical contact” requirement by concluding “that there is no conflict between the statutory term ‘hit-and-run motor vehicle’ and the policy requirement of ‘physical contact of such automobile’ ”. (82 Ill.App.2d at 461.) Thus, Prosk stands for the proposition that the terms of a policy will be upheld, even if they tend to preclude recovery in certain cases, so long as they are clear and reasonable, and not in conflict with the legislative intent.

The fundamental issue, therefore, still remains; that is, whether a provision in an uninsured-motorist indorsement excluding coverage where the insured, without the consent of the insurer, settles his claim against a tort-feasor other than the uninsured motorist is. valid and enforceable. As the appellant has indicated, this issue is one of first impression in Illinois since there are no reported court decisions which have passed on the validity of an exclusionary provision such as is found in appellee’s policy. In support of her contention that such a provision is void and unenforceable, appellant cites several decisions in other jurisdictions which have held very similar exclusionary provisions invalid as applied to a tort-feasor other tiran the uninsured motorist (Harthcock v. State Farm Mutual Automobile Insurance Co. (S.Ct. Miss. 1971), 248 So.2d 456; Michigan Mutual Liability Co. v. Karsten (1968), 13 Mich.App. 46, 163 N.W.2d 670; Guthrie v. State Farm Mutual Automobile Insurance Co. (D.S.C. 1968), 279 F.Supp. 837 (applying Virginia law).) On the other hand, the appellee also cites decisions of other jurisdictions which are authority for the proposition that a provision in an uninsured-motorist indorsement excluding coverage where the insured, without the consent of the insurer, settles his claim with a tort-feasor other than the uninsured motorist is valid and enforceable. (Kisling v. M.F.A. Mutual Insurance Co. (Mo.App. 1966), 399 S.W.2d 245; LaBove v. American Employers Insurance Co. (La.App. 1966), 189 So.2d 315.) Thus, there appears to be a division of authority as to the validity of such exclusionary provisions in other jurisdictions. While those decisions are not binding upon this court, the arguments made in those cases are the same kind of arguments presented by the appellant and appellee in this case and form the basis of our decision.

Appellant argues that enforcement of the validity of the exclusionary provision would defeat the intent of section 143a and would permit the appellee insurance company to control appellant’s access to the courts to seek redress for her injuries. She contends that, if she had requested permission to settle with Patrick and Allstate and if State Farm refused permission, she would be forced to proceed to trial in order to protect her rights under the State Farm policy. According to the appellant, State Farm would in effect be controlling this litigation and requiring the appellant to gamble her claim against Patrick for the benefit of State Farm. This argument is without merit. The purpose of uninsured-motorist coverage was to provide bask protection to the injured insured in the event of injuries sustained in an automobile accident with an uninsured motorist to at least the same extent compensation was avafiable for injuries sustained by an accident with a motorist insured in compliance with the Financial Responsibility Law. (Ullman v. Wolverine, supra.) In the opinion of this court that means, if basic protection is available from some other source, the uninsured-motorist coverage should not come into effect. The requirement in the State Farm policy that the insured obtain written consent from the insurer, before making any settlement with anyone who may be legally liable for the accident or forfeit coverage, was not designed to control the insured’s access to the courts, but rather to protect the insurer’s right of subrogation. Under the State Farm policy there is established a trust agreement, Insuring Agreement III — Condition 16, whereby State Farm, in the event of payment to the insured, is subrogated to the rights of the insured against all wrongdoers, and the insured agrees to protect State Farm’s right of recovery. If this court were to decide as the appellant would have us decide, the foUowing result might occur. An insured could be involved in a 10-car collision with nine other drivers, all jointly liable, one of whom had no insurance. Under appellant’s theory the insured could then settle with the eight insured motorists and stiU process an uninsured-motorist claim against her own company. If the insured’s company then paid the claim, it would be unable to secure reimbursement from anyone but the uninsured motorist. Such does not appear to have been the intent of the legislature in requiring uninsured-motorist coverage as basic protection in the event of an accident with an uninsured motorist.

Balanced against appellant’s argument that the exclusionary clause would allow the insurer to control her access to the courts are those decisions which have held that an insured could not arbitrarily and without reason withhold its consent to suit or settlement with the uninsured motorist. (Levy v. American Automobile Insurance Co. (1961), 31 Ill. App.2d 157, 175 N.E.2d 607; Andeen v. Country Mutual Insurance Co. (1966), 70 Ill.App.2d 357, 217 N.E.2d 814, cert. denied, 385 U.S. 1036, rehearing denied, 386 U.S. 939.) It was also recognized in these cases that where it could be shown that an insurer did arbitrarily and without reason withhold its consent to a settlement, such action would be held to have been á waiver of the consent requirement. (Levy v. American Automobile Insurance Co., 31 Ill.App. at 164; Andeen v. Country Mutual Insurance Co., 70 Ill.App.2d at 363.) Since the exclusionary provision in question in the case at bar required written consent with any person who may be legally liable for the injury, we feel that the holding in the cases cited above apply with equal weight to insured motorists with whom the insured might wish to settle. Therefore, the appellant in the case at bar, and other persons similarly situated, are protected should tire insurer attempt to use the written consent requirement of the exclusionary provision to control her access to the courts. And thus her argument that such a clause would enable State Farm to control this litigation is untenable.

Finally it should be emphasized that the words of the exclusion are clear and unambiguous. It stated that “Insuring Agreement III does not apply: (a) to bodily injury to an insured * * * recoverable by an insured, with respect to which such insured * * * shall, without written consent of the company, make any settlement with any person * * * who may be legally liable therefor * * The exclusion means precisely that and there are no limitations or restrictions expressed or implied that would lead to an interpretation that a settlement with an insured motorist is excluded. Thus, we adhere to the general rule that where language in an insurance policy is clear and unambiguous, it must be taken in its plain, ordinary and popular sense. (Banner Insurance Co. v. Avella (1970), 128 Ill.App.2d 471, 262 N.E.2d 791; Swift & Co. v. London & Edinburgh Insurance Co. (1970), 130 Ill.App.2d 68, 264 N.E.2d 389.) Construing an insurance contract accurately and giving it the effect which its language clearly commands is not ipso facto a breach of public policy merely because it disappoints the victim of an uninsured motorist. Putnam v. New Amsterdam Casualty Co., 48 Ill.2d at 86.

In conclusion, we emphasize that in two of the cases cited by the appellant as holding an exclusionary clause like the one before us void and unenforceable (Guthrie v. State Farm Mutual Automobile Insurance Co., supra, Harthcock v. State Farm Mutual Automobile Insurance Co., supra), the courts also held the “excess” or “other insurance” provision was an attempt by the insurer to limit or dilute the statutory requirement for uninsured-motorist coverage. (279 F.Supp. at 842; 248 So.2d at 462.) However, in Illinois, tire legislative policy of providing basic coverage in cases involving accidents with uninsured motorists by requiring uninsured-motorist coverage has been held not to have been violated by “other insurance” provisions in the insurance policies. (Tindall v. Farmers Automobile Management Corp. (1967), 83 Ill.App.2d 165,168, 226 N.E.2d 397. See Putnam v. New Amsterdam Casualty Co., supra.) With that in mind, we are of the opinion that the application of the exclusionary provision to tort-feasors other than the uninsured motorist is valid and that it does not violate public policy nor place a limitation on the statutory requirement for uninsured motorist coverage in effect at that time.

Appellant next contends that even if we should determine that the exclusionary provision of State Farm’s insurance policy is valid as applied to tort-feasors other than the uninsured motorist, which we have done, the appellee State Farm has by its actions waived the application of the exclusionary provision in this case. In support of her contention, appellant points to the facts that she served notice of an uninsured-motorist claim upon State Farm; that she invited State Farm to participate in taking the evidentiary deposition she scheduled with Steve Jackson pursuant to her lawsuit filed against him and Donald Patrick, but State Farm did not appear; and, that she had State Farm joined as a party defendant in the declaratory judgment suit between the Allstate Insurance Company and Donald Patrick to determine Allstate’s rights and obligations under their insurance contract, but State Farm obtained an extension of time to plead and did not thereafter take any action in the proceedings. Based upon these factors, appellant argues that “State Farm was aware of the pendency of the suit by the plaintiff against Don-old Patrick and Steve Jackson * * * but did not place the plaintiff, Allstate or Jackson on notice of its interest in any suit or settlement,” and therefore State Farm waived the exclusionary provision. (Emphasis ours.) Appellant cites no cases to support her argument, and in light of the facts she presented, we find her argument untenable. We fail to see how notice of a pending lawsuit by the appellant against Steve Jackson and Donald Patrick would place State Farm on notice of a pending settlement between the appellant, Allstate, and Donald Patrick, such that the failure of State Farm to act would constitute a waiver of the application of the exclusionary provision. Had the plaintiff informed State Farm of the settlement negotiations or invited State Farm to participate in them and had State Farm then taken no action, we feel that appellant’s argument would form a basis for a claim of waiver.

Illinois case law dealing with waiver of the exclusionary provision by the insurer, while not directly on point, seems to substantiate our findings. In Levy v. American Automobile Insurance Co. (1961), 31 Ill.App.2d 157, 175 N.E.2d 607, plaintiffs attorney notified the defendant insurance company of the possible existence of an uninsured motorist claim. Later, the defendant insurer was sent a copy of the summons and complaint in the case of Levy v. Smith, and the parties submitted to physical examinations as requested by the defendant. But, after a series of fruitless negotiations between the plaintiff and her insurer, the defendant insurer demanded that the dispute be settled by arbitration. Plaintiffs attorney declined to submit the dispute to arbitration since, under the express terms of the policy, the defendant had no right to demand it. Judgment was then obtained against the uninsured motorist and upon receiving notice of the judgment, the defendant insurer claimed it was not obligated to pay because the judgment was obtained without its written consent as required by the policy. In a suit to enforce the judgment against the defendant insurer, the trial court held for the plaintiff. The appellate court affirmed, finding that the action of the company in arbitrarily withholding its written consent violated the terms of the policy and consequently the ex-, elusionary provision would not bar recovery. ;

In Andeen v. Country Mutual Insurance Co. (1966), 70 Ill.App.2d 357, 217 N.E.2d 814, plaintiffs gave the defendant written notice of their action against an uninsured motorist and of the trial time and dates. They requested. that the defendant insurer consent to prosecution of the action, to judgment. The insurer was given every opportunity to defend the suit or demand arbitration of the matter pursuant to the policy provisions, but it did nothing. Under these circumstances, the appellate court affirmed the trial-court judgment entered against the insurer, even though the plaintiffs had obtained judgment against the uninsured motorist without written consent of the insurer as provided in the policy.

It is important to note that in each of those cases where the Illinois courts, in effect, found a waiver of the exclusionary provision, the insurer' was given every opportunity to participate in settlement negotiations or to consent to prosecution of the action against the uninsured motorist to" judgment. However, in Levy, the'insurer arbitrarily withheld its written consent and, in Andeen, the insurer chose to ignore its insured’s attempts to have it take part in the action. Wé have none of these situations in the case at bar. Here, State Farm was merely notified of an uninsured-motorist claim, invited to participate in the taking of an evidentiary deposition, and joined in a declaratory judgment suit to determine the rights and-obligations of the parties to an insurance contract that was not even its own. However, the insurer was not notified of, or invited to participate in the settlement between the appellant, Allstate, and Donald Patrick. Under these circumstances, we are of the opinion that State Farm did not waive the written consent provision of the exclusionary clause because' it was never given an opportunity to consent to the settlement.

Thirdly, appellant argues that State Farm must show prejudice because of the settlement before, claiming the benefit of the exclusion. In support of this contention appellant cites Kaplan v. Phoenix of Hartford Insurance Co. (Fla. 1968), 215 So.2d 893; That case involved a situation where the plaintiff was riding as a passenger in an automobile insured by the defendant, which was involved in an accident with two other cars. The driver of one was insured, while the driver of the other car was uninsured, Plaintiff settled with the insured driver and then sought to recover against the defendant on an uninsured-motorist claim. The defendant sought declaratory relief as to its rights and liabilities under the policy, and alleged that plaintiff s settlement without written consent of the company as required by the policy was a breach of the policy conditions. Plaintiff raised a defense of lack of prejudice to the defendant, which was sustained by the court.

But again, there are cases in other jurisdictions which are contrary to the one cited by the appellant. In Travelers Indemnity Co. v. Kowalski (1965), 233 Cal.App.2d 607, 43 Cal. Rptr. 843, the defendant was involved in an accident with an uninsured motorist. Without written consent of the plaintiff, his insurer, he filed suit and prosecuted to judgment his claim against the uninsured motorist. Thereafter he invoked the uninsured-motorist provision of his policy and sought arbitration of his claim. The insurer brought an action seeking a declaratory judgment that the defendant had no right to assert a claim because he did not comply with the policy requirement of written consent. The trial court found that the plaintiff insurer had not been prejudiced by the defendant’s action and concluded that the defendant was entitled to arbitration of his claim. On appeal, the judgment of the trial court was reversed. The appellate court was not impressed with the defendant’s argument that tire insurer should be required to show some prejudice before it claimed the benefit of the exclusion. Pointing to the language of the exclusionary provision, which was identical to that in the case at bar, the appellate court held that .the policy must be construed according to its plain and ordinary meaning, and when it is unambiguous it must be given effect.

We adhere to the ruling of the California court and adopt its reasoning. Again we wish to emphasize that the purpose of the exclusionary provision is to protect the subrogation rights of the insurance company, and where the language of the exclusionary provision is clear and unambiguous, we will enforce its requirements.

Furthermore, it ■ surely cannot be argued that the insurer was not prejudiced by the-settlement in the case at bar. Contrary to appellant’s argument, the facts indicate that a verdict-against both Steve Jackson and Donald Patrick was entirely possible. The actions of the appellant completely foreclosed any and all rights of subrogation and reimbursement that State Farm had or would have had against Donald Patrick and' Allstate for their liability if this case was to go to arbitration and it was determined that State Farm must honor appellant’s uninsured-motorist claim. Therefore, we hold that State Farm need not show prejudice because of the settlement, before claiming the benefit of the exclusionary provision.

Finally, appellant argues that the “other insurance” provision of State Farm’s insurance policy is not applicable. The “other insurance” provision provides that:

“With respect to bodily injury to an automobile not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant and this insurance shall then apply only in an amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.”

The Allstate policy which insured the automobile in which plaintiff was riding as a passenger and its driver, Donald Patrick, contains the following provision concerning recovery by a person under the Bodily Injury Liabilty Coverage (Coverage A) and the Uninsured Motorist Coverage (Section II):

“If claim is made under this Section II and claim is also made against any person who is an insured under Coverage A of the policy on account of bodily injury sustained in an accident by a person who is an insured under this Section II:
2. any payment under Coverage A to any claimant who is an insured hereunder shall be applied in reduction of any amount which he may be entitled to recover under this Section II.”

Appellant argues that the $17,000 paid to her by Allstate on behalf of Donald Patrick was paid pursuant to Coverage A (the Bodily Injury Liability Provision) of the Allstate policy, and since that amount was in excess of the policy limit of $10,000, it precludes any payment under the uninsured-motorist provision of the Allstate policy. She therefore concludes that because there is no uninsured-motorist coverage available under the Allstate policy, the “other insurance” provision of the State Farm policy is not applicable.

We find this argument of the appellant equally untenable. The $17,000 paid to the appellant by Allstate was not paid pursuant to Coverage A, the Bodily Liability Provision of the Allstate Policy, but was paid as part of a settlement agreement whereby the appellant signed a covenant not to sue Donald Patrick and the Allstate Insurance Company in return for the money. Therefore the money was paid to release the uninsured-motorist claim under the policy, as well as the Patrick liability claim. Furthermore, the State Farm “other insurance” provision provided that uninsured-motorist coverage would apply only in the amount by which its limit exceeded the limits of the other such available insurance. Since the Allstate policy was in the amount of $10,000 and State Farm’s policy was in that same amount, there could be no further action against State Farm because the State Farm coverage did not exceed the applicable limit of the Allstate coverage.

We, therefore, hold that the findings of the circuit court were correct and the respondent’s motion to dismiss was properly allowed.

Judgment affirmed.

JONES and CREES, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John James Gratton, Jr., Defendant-Appellant.
    (No. 73-99;
    Second District
    May 17, 1974.
    William L. Balsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Thomas Sullivan, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

On July 15, 1972, the defendant in the company of Ricky Cook and Gary Newman drove to the “Minit-Mart” in Rockford. Defendant entered the store, made- a few purchases, and presented a payroll check of the AXA Construction Company in the sum of $128 to the daughter of the proprietor. She advised the defendant that she would have to wait for her father, William W. Rader, to apprové the check. Shortly thereafter Mr. Rader came to the store and asked the defendant for identification. The defendant represented himself as Charles Lane, the payee on the check. Defendant signed the check as Charles Lane in the store but did hot have any identification. When Mr. Rader went out to the car for the purpose of checking the license number he recognized the driver of the car as Ricky Cook whom he had known for 10 to 12 years. The check was then cashed in the store.

Later, the proprietor called the AXA Construction Company and discovered that a number of payroll checks had been stolen from that company. He reported the license number and description of the man to the sheriff as well as the name of Ricky Cook, one of the two cpdefendants. The proprietor further testified that in addition to the “MinitMart” grocery store he was the owner of two taverns and that the defendant was not intoxicated although dressed in work clothes.

Later that day, the three defendants were apprehended in the Lou Backrodt Chevrolet parking lot by the county sheriffs department. The arresting officer looked into the car and saw a brown paper bag on the floor containing 27 payroll checks all made out to Charles Lane., The checks were dated the 14th of July, 1972, and were in varying amounts of approximately $130. They were identical with the one cashed by the defendant at the “Minit-Mart” grocery. The defendant was taken to the Winnebago sheriff’s office where another check was found in his wallet similar to the ones found in his car and to the one that was cashed.

During the various motions at the time of defendant’s plea and in his application for probation the defendant admitted that he cashed the forged check in the “Minit-Mart” grocery store but stated that he was intoxicated, and that he found the bag full of checks in an alley.

The defendant, upon a plea of guilty, was sentenced on Count I of the indictment to the penitentiary for a period of 2-6 years. In this appeal counsel for the defendant has raised three issues: (1) the plea of guilty was accepted without substantial compliance with the provisions of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, sec. 402); (2) defendant was denied right to have counsel other than the public defender; arid (3) the sentence was excessive.

We turn first to the acceptance of the plea of guilty by the court under the provisions of Rule 402. Examination of tire record discloses that at the time the defendant withdrew his plea of not guilty the comt explained in detail the rights that the defendant was waiving before accepting his plea of guilty. As a matter of fact, the transcript discloses 15 pages wherein the court admonished the defendant of the consequence of his plea of guilty. Defendant contends that the court did not advise him of the possible penalty. Upon two separate occasions the court advised the defendant of the possible penalty that might be imposed, to-wit: 1-14 years in the penitentiary.

Defendant further contends that he did not understand the nature of the charge. As the court stated in People v. Hudson (1972), 7 Ill.App.3d 800, 288 N.E.2d 533, there is some confusion in the distinction between the factual basis for the plea and the determination that the accused understands the nature of the charge under the provisions of Supreme Court Rule 402. Of necessity, many times the two may overlap. In the instant case the defendant was supplied with a copy of the indictment charging him with forgery. At the time he sought to withdraw his plea of not guilty, the court stated to the defendant: “You are charged with Count I of this Indictment, forgery, writing a check to one William Rader * * *. This was a check they say was forged, a forged check drawn on the Stillman Valley National Bank by one James E. Banks and in fact was forged, now do you understand that?” The defendant replied in the affirmative. The State’s Attorney then stated the factual basis of the plea and the nature thereof to the court in the presence of the defendant and his counsel, “Mr. Gratton went into the store with an AXA Construction Company check drawn on Stillman Valley National Bank of Stillman Valley, Illinois, in the amount of $128 which was forged and made payable to Charles Lane, a non-existent individual. The name of the person on the check was James E. Banks and he also was non existent * * From our examination of the whole record we are satisfied that without a doubt the defendant knew the nature of the charge and the facts surrounding his cashing of the forged check. We find that there was substantial compliance with the provisions of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, sec. 402). Counsel for defendant has cited People v. Ingeneri (1972), 7 Ill.App.3d 809, 288 N.E.2d 550, relative to the explanation by the court of the nature of tire charge required under Rule 402. We do not disagree with that court’s statement of the requirement that the court state to the defendant the nature of the charge in language that the defendant can understand. Under the facts in the case before us we find that the defendant well understood the nature of the offense with which he was charged and to which he desired to plead guilty. See People v. Diaz (1973), 15 Ill.App.3d 280, 304 N.E.2d 103; People v. Hickman (1973), 9 Ill.App.3d 39, 42, 291 N.E.2d 523; People v. Harden (1966), 78 Ill.App.2d 431, 444, 222 N.E.2d 693 (adopted by reference in People v. Harden, 38 Ill.2d 559, 563).

In the presence of the defendant, the State’s Attorney described the offense in detail to the court and the defendant replied “Yes, everything he said, that’s the way I remember it. Before accepting defendant’s plea of guilty the trial judge advised the defendant in his lengthy discussion of his rights under Rule 402, that he had the right to a trial by jury; of the requirements that the State must prove him guilty beyond a reasonable doubt; of his right to have the case heard by a judge in the event he waived a jury; and that the judge would in turn have to be convinced beyond a reasonable doubt of his guilt. The court further advised the defendant that if he entered a plea of guilty, he waived his right to a trial by jury, he waived his right to a trial by the court and there would be no witnesses that would testify. As the court said “It’s just a case where you are saying ‘Yes Sir, I am guilty, and therefore there is nothing more to do then except to impose a sentence. Do you understand that?” The defendant replied “Yes, Sir.” The court further advised the defendant that his appointed counsel would represent him to the best of his ability if he wished to have a trial. The court then asked the defendant if he had any questions and the defendant answered “Yes” he did, and replied that “I was intoxicated.” He admitted to the court at this time he remembered being in the store, that he found the checks in a paper bag in an alley, and he remembered giving the check to the girl in the store. Defense counsel then advised the court that he in turn had advised the defendant that intoxication was not a defense in this case to a charge of forgery. At this time the State’s Attorney advised the court that the examination of defendant’s belongings at the time of his arrest disclosed an application made by him for a driver’s license in the name of “Charles Lane,” the payee on the stolen checks.

The court then queried the defendant as to whether he had been promised probation and the defendant replied he had not. The court advised him that probation was a matter for the court’s decision. Defendant’s contention that he was not advised of his right to persist in a plea of guilty is contrary to the evidence in the record; his contention that he was not advised of the minimum and maximum sentence is contrary to the record, and his contention that he was not advised of the elements of the offense is likewise contrary to the record.

The only element which the court failed to specifically inquire about was whether any force or threats had been used. It is obvious under the lengthy discussion of the possible effects of the plea of guilty that no force or threats were used. We have on numerous times stated that substantial compliance with Rule 402 is the test of whether the plea is in fact voluntary. Attention is directed to People v. Hickman (1973), 9 Ill.App.3d 39, 291 N.E.2d 523, and People v. Ellis (1974), 16 Ill.App.3d 282, 306 N.E.2d 53, wherein we discussed the conflict in the appellate jurisdictions as to the determination of voluntariness of a guüty plea. We adhere to our decision in Ellis and find that under the facts in this case that there was substantial compliance under Rule 402. See also People v. Shepard (1973), 10 Ill.App.3d 739, 295 N.E.2d 310; People v. Krassel (1973), 12 Ill.App.3d 64, 298 N.E.2d 384; People v. Compton (1973), 16 Ill.App.3d 196, 305 N.E.2d 582; People v. Williams (1973), 16 Ill.App.3d 199, 305 N.E.2d 544.

We turn then to the second contention of the defendant that he was improperly denied the right to have counsel other than the public defender. At the outset the public defender was appointed for the defendant. The public defender subsequently filed a motion for reduction of bail, a motion for discovery, a motion to dismiss the indictment, a motion to suppress physical evidence, and a motion to suppress identification testimony. Subsequently, on the 10th of October, 1972, the defendant appeared in court and requested the appointment of “another lawyer” on the basis that the public defender wanted the defendant to plead gufity. The court refused to appoint another attorney. Later, however, during one of the numerous hearings, the State’s Attorney pointed out that the court had previously advised the defendant that he could renew “his request for an attorney of some kind and I would like to see that taken care of at this time. I don’t want the issue to be raised on the date of trial if I can avoid it.” At this point the defendant replied, “I ain’t got nothing to say.” At no time thereafter did the defendant request other counsel.

The statutory provisions for the appointment of counsel for indigent defendants are found in section 4 of the Public Defender Act (Ill. Rev. Stat. 1971, ch. 34, sec. 5604) and section 113 — 3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 113 — 3), which provide that in the original instance, for good cause shown, where the accused shall demand the appointment of counsel other than the public defender, the court thereupon shaH appoint other counsel. That is not the situation in the case before us. As indicated above, the public defender herein had dutifully represented the defendant up until the time the defendant decided he wanted other counsel. We do not find that under the provisions of the above statutes the defendant was entitled to other counsel at the time he decided to reject the services of the public defender. When the defendant represented to the court that the public defender advised him to plead guilty, the court stated to the defendant that if he wished a trial that the public defender would represent him to the best of his ability on a not-guilty plea. In People v. Gray (1965), 33 Ill.2d 349, 211 N.E.2d 369, the defendant’s private attorney withdrew and the defendant asked for an attorney other than the public defender. In Gray the court cited with approval the opinion of the Federal court in United States v. Thompson (S.D.N.Y. 1944), 56 F.Supp. 683: “I have always believed the law. to be that the choice of counsel for indigent persons accused of crime was the court’s and not the defendant’s.” (56 F.Supp. at 688.) “It seems to me the choice must be the court’s and not the defendant’s and that such a choice should not be subject to impeachment on the ground of a claimed displeasure with the appointment or the lack of confidence in the attorney unless there is good cause why the appointment should not have been made. * * *” The supreme court in Gray went on to state at 355:

* * * “We therefore hold that section 2 of division XIII of the Criminal Code and section 4 of the act relating to public defenders require appointment of nonpublic defender counsel in the first instance when requested by an indigent defendant, but that subsequent appointments may be either of the public defender or other lawyers as the court may, in the exercise of its sound discretion, decide. No abuse of such discretion is indicated here.”

Subsequent to the Gray case section 4 of the Public Defender Act (Ill. Rev. Stat. 1971, ch. 34, sec. 5604) was amended to add “and for good cause shown” as the necessary requirement for appointment of counsel other than the Public Defender.

Under the facts in the case before us we do not find that the trial court abused its discretion in refusing to appoint counsel other than the Public Defender as requested by the defendant during the pendency of the trial.

The last contention of the defendant is that the sentence of 2-6 years is excessive. The testimony of the defendant in his application for probation disclosed he had been sentenced for burglary in 1961. In re-, sponse to his own counsel’s query “What was the burglary that you were convicted' of in 1961?” the defendant replied “A bunch of them.” The defendant was released on parole for the 1961 conviction, was re-committed to the penitentiary, was released in 1969, and less than 3 years later he was charged with the instant offense. In view-of the defendant’s record in this regard the sentence of 2-6 years was certainly not excessive.

Judgment affirmed.

T. MORAN,. P. J., and SEIDENFELD, J., concur.