author: JUSTICE SIMON

text:
    (No. 55801.

      In re ESTATE OF MARY WORRELL, Deceased (Dawson M. Cooper, Adm’r, Appellant; Dennis Barnes, Appellee).

      Opinion filed October 22, 1982.
    Rehearing denied November 24, 1982.

      John A. Farrell, of Farrell, Heil, Long & St. Peters, P.C., of Godfrey, for appellant.
    Dennis A. Brandt, of Mateyka, Hill, Hill & Armstrong, of Granite City, for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

A dramshop action filed in the circuit court of Madison County by Dennis Barnes against tavern owner Mary Worrell was a prelude to these proceedings in probate. After the filing of the dramshop action and service of summons on Mrs. Worrell, but before it was tried, she died intestate on July 19, 1978. Apparently, however, Barnes did not learn of her death until approximately nine months later. In the meantime, the following events transpired in the probate division of the Madison County circuit court:

August 22, 1978 Letters of administration were issued to Mrs. Worrell’s son-in-law, Dawson Cooper, and publication for claims of creditors was made in accordance with the Probate Act of 1975. Ill. Rev. Stat. 1977, ch. 1101/2, par. 18—3.

December 19,1978 The initial inventory of Mrs. Worrell’s property, including her tavern and a motel she owned, was filed in the probate proceeding.

February 22,1979 The statutory period for claims against the estate as originally inventoried provided for in section 18 — 12 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 18-12) expired.

April 30,1979 Mr. Barnes, now aware of Mrs. Worrell’s death, sent notice of his claim for the first time to the administrator. Apparently this was the first knowledge the administrator had of the dramshop action.

June 5,1979 Notice of Barnes’ claim to the administrator was filed in the probate proceedings.

At the same time he filed his claim in the probate proceedings, Barnes filed a motion to substitute the administrator as the party defendant in his still-pending dramshop action. In November of that year the case was tried, and a judgment was entered in favor of Barnes in the amount of $15,000. Of that amount, $5,000 was paid by the tavern’s insurance carrier. In order to satisfy the remaining balance, Barnes could look only to the estate.

Two substantive issues are presented. The first is whether Barnes’ claim against the estate was properly made within the limitations period provided for in section 18 — 12 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 18-12), and thus eligible to be satisfied from inventoried assets. The other is whether, if Barnes’ claim was not made within the proper period, profits made from operating the decedent’s motel and tavern businesses after her death can be used to satisfy the debt, since only the businesses themselves and not the income from them had been formally inventoried.

The circuit court rejected Barnes’ claim for payment of the balance of his judgment out of the estate assets, ruling that his claim was presented to the administrator too late to be satisfied from inventoried assets and that profits made from operating Mrs. Worrell’s businesses should be regarded as part of the inventoried assets that generated them. This decision was reversed by the appellate court with one judge dissenting. (100 Ill. App. 3d 566.) The appellate court held that any profits generated by the tavern and motel while operated by the administrator were the equivalent of newly discovered assets and thus subject to creditors’ claims, even if those claims were filed late. We allowed the administrator’s petition for leave to appeal.

Before considering the respective merits of the position of the parties, we deal briefly with a jurisdictional issue raised by the administrator. It concerns whether the claimant’s notice of appeal from the circuit court to the appellate court was timely.

On August 29, 1979, the probate division allowed the administrator’s motion to bar payment of Barnes’ claim out of the assets of the estate included in the original inventory because the claim was filed late. On January 17, 1980, the same court ordered that Barnes’ claim could not be satisfied out of the income from the inventoried assets and that payment of the claim was limited to assets and income from assets inventoried after the expiration of the time for claims against the assets as originally inventoried. The circuit court refused to vacate its January order on February 28, 1980, but on that date it did allow a motion by Barnes for an accounting of all funds subject to his claim. In response to that the administrator on April 1, 1980, filed his final report of assets inventoried after the original claim period. The assets so inventoried were sufficient to satisfy only $1,000 of the balance of the dramshop judgment, leaving $9,000 unsatisfied. That report was approved by the court on May 16, 1980, by an order that also approved the sale of certain of the late-inventoried assets, so that Mr. Barnes could be given his partial satisfaction in cash. He appealed that order.

Supreme Court Rule 304(b)(1) states that “[a] judgment or order entered in the administration of an estate, guardianship, conservatorship, or similar proceeding which finally determines a right or status of a party” is appealable. (73 Ill. 2d R. 304(b)(1).) None of the orders of the probate division until its May 16 order finally determined the claimant’s position. Mr. Barnes wanted one thing from the estate of Mary Worrell: He wanted his judgment against it paid. He did not care which fund the money was paid from so long as it was fully paid. The August 1979 order stated only that he could not be paid from inventoried assets. There was still the possibility his claim could be satisfied out of the profits generated by the motel and tavern businesses or out of assets inventoried after the six-month period. The January 1980 order eliminated the profits as a source of satisfying the claim, but still there were the assets inventoried after the end of the claims period to be reckoned with. The value and extent of these assets were unclear. Although one supplemental inventory had been filed in July of 1979, no final inventory had been filed. Some of the assets inventoried in July were causes of action, and therefore subject to changes in value between July and January. Moreover, there was the possibility that other assets had been discovered since. The probate division had by no means ended the proceedings with regard to Barnes’ claim.

If the assets inventoried after the original inventory turned out to be large enough to satisfy the judgment, any appeal from the January 1980 order or the February 1980 order that upheld the January order would have been mooted. Only the May 1980 order which approved the final inventory of the estate and approved payment of the value of late inventoried assets to Barnes was a final adjudication of the claim. It was not until that order that the right or status of Barnes as a creditor was finally determined, and for that reason his notice of appeal was timely filed and properly heard by the appellate court.

Barnes advances two reasons for his prevailing on the merits, but we find neither persuasive. First, he contends his claim should be considered timely presented because the dramshop suit against the then-living Mrs. Worrell was filed before the six-month period for claims had expired (in fact before it had even begun) and was pending during the entire six-month period.

Under the law in effect at the time the estate was opened, there were two ways to file a claim against a decedent’s estate: filing it in the probate proceeding so that it became part of the estate file or suing the estate representative directly, thus serving process upon him. (See Ill. Rev. Stat. 1977, ch. 1101/2, par. 18—1; Berke v. First National Bank & Trust Co. (1979), 77 Ill. 2d 452.) In Morse v. Pacific Ry. Co. (1901), 191 Ill. 356, 361, this court observed: “[T]he fact that [a suit] was pending against [the decedent] at his death does not amount to an exhibition of the claim or demand made against the estate. That can only be done by filing the claim in [the court] having jurisdiction of the estate, or by bringing suit against the executors in some court of competent jurisdiction.” (Accord, Tinker v. Babcock (1903), 107 Ill. App. 78, 82.) Had Barnes done either of these things on or before February 22, 1979, his claim would have been timely, but he did not.

Barnes argues, however, that after the merger in 1964 of the probate court an,d the circuit court, a suit pending against the deceased person in the circuit court should be sufficient presentment of the claim. We do not agree. Before the consolidation of all courts of original jurisdiction in Illinois into one circuit court, it was incumbent upon creditors to bring their claims to the attention of the representative of the estate. The representative had no obligation to go out and look for claims. In fact, even if he knew of a claim, the law did not require him to pay it unless he was formally notified as described above. (See Morse v. Pacific Ry. Co. (1901), 191 Ill. 356; In re Estate of Newcomb (1972), 6 Ill. App. 3d 1094; Bosnak v. Murphy (1960), 28 Ill. App. 2d 110.) If the fact that the probate court is now part of the circuit court were allowed to change what is required of a claimant, that would no longer be so. The estate representative would be required to pore over the circuit court docket, rather than simply wait to be sued or wait for notice that a claim has been placed in the estate’s file in the probate division.

Such a change is unwarranted; requiring the creditor to keep track of his debtors rather than relying on the estate representative to dig up creditors is the more sensible practice. After all, we see no good reason to require an administrator to search the circuit court for claims against the deceased but not search the Federal court, other circuits, or for that matter contact possible creditors such as local utilities or retail stores and ask them if any debts are outstanding.

A leading Illinois authority agrees that a suit filed in a different division of the circuit court is not the equivalent of filing in the probate proceeding:

“[I]n certain instances claims are asserted against the estate of a deceased person in a forum other than that in which the proceedings for the administration of the decedent’s estate are pending. Examples would include an action on a claim commenced against an executor in a federal court ***, or an action brought in another circuit court, or another division of the same court ***. In such case it is held that the claim is ‘filed’ when the action is instituted in a court of competent jurisdiction and service of summons is made on the executor or administrator. However, it is not enough merely to commence suit within the limitation period; it is also necessary to effect service of summons within that time in order to constitute a sufficient exhibition of the claim. If the rule were otherwise, the purpose of the non-claim statute would be frustrated.” (Emphasis added.) 4 W. James, Illinois Probate Law & Practice sec. 204.9 (Supp. 1975).

Moreover, recent amendments to the Probate Act of 1975 indicate the importance the legislature continues to place on ensuring that estate representatives receive notice of all claims without having to go hunting for them. Section 18 — 1 states that a claim may be filed either with the court or with the estate representative. When a claim is filed in court, however, notice must be served upon the representative within 10 days. If a claim sent only to the representative is rejected by him, it is to be filed in the probate proceedings within 60 days. (Ill. Rev. Stat. 1981, ch. 1101/2, par. 18—11.) This statute is more liberal than that in effect at the time this case arose; yet it is just as insistent that the creditor should formally notify the estate representative of his claim. It is indicative of a policy that has existed in Illinois for many years.

Barnes’ second contention is that, as the appellate court held, even if his claim was filed late, he can still satisfy his claim out of the profits earned by the decedent’s motel and tavern businesses, because, although the businesses themselves were inventoried, their income had not been separately inventoried.

Section 18 — 12 of the Probate Act of 1975 stated at the time:

“All claims against the estate of a decedent *** not filed within 6 months from the issuance of letters of office are barred as to the estate which has been inventoried within 6 months from the issuance of letters. ***.” (Ill. Rev. Stat. 1977, ch. 1101/2, par. 18—12.)

It should be noted that this part of the statute is no longer in effect and has been replaced by a statute that bars late claims altogether. (Ill. Rev. Stat. 1981, ch. 1101/2, par. 18—12.) Thus this question is not likely to reoccur in the future.

Barnes argues that income from inventoried assets must be separately inventoried and that it cannot be considered part of the already inventoried asset that generated it. In our opinion, however, section 18 — 12 was meant to draw a distinction between known (and thus inventoried) assets and newly discovered assets. From 1829 until 1933, in fact, the statute read, “[A]U demands not exhibited within [the proper period] shall be forever barred unless such creditor shall find other estate of the deceased not inventoried ***; in which case his claim shall be paid * * * out of such subsequently discovered estate ***.” (Emphasis added.) (1833 Rev. Laws 648; Ill. Rev. Stat. 1929, ch. 3, par. 71.) The section allowed heirs and creditors of an estate to know and rely on the size of the estate. That way they would know whether and to what extent their claim would be paid, and quick payment was facilitated. Newly discovered assets, however, were considered a windfall, and therefore subject to late claims. It was a minor accommodation for late filers, one that was unknown in most other States. Most States bar such claims altogether. See, e.g., Del. Code Ann. tit. 12, sec. 2102 (1974); Hawaii Rev. Stat. sec. 560:3-803 (1976); Idaho Code sec. 15-3-803 (1979); Or. Rev. Stat. sec. 115.005 (1981).

It would be error to classify income from inventoried assets as newly discovered assets. Income from assets does not carry with it the element of surprise one might encounter in discovering property of the decedent of which the parties in interest were not previously aware. One expects one’s motel business will make money; that’s what it’s for. On the other hand, one does not expect to find a roll of hundred-dollar bills hidden in the attic. A more sensible approach is to consider profits to be part of the inventoried asset that produced them, and thus protected from late filers.

The case of In re Estate of Garawany (1980), 80 Ill. App. 3d 401, provides some support for this conclusion. In that case, a late-filing creditor attempted to satisfy his debt out of proceeds from a medical insurance policy. The policy itself had been inventoried, but not the proceeds from the claim. The appellate court held that the proceeds from the policy should be considered inventoried at the time the policy itself was inventoried.

It seems unlikely that the legislature was attempting to devise a rule that would penalize heirs for operating profit-making businesses while the estate is being probated. Why continue to operate a motel if any profit that might be made will be taken? It would be better to prevent the risk of loss and the wear and tear on the capital assets by selling the motel. Barnes almost concedes this point by strenuously arguing that because the administrator failed to secure leave of court to run the decedent’s businesses as required by section 19 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 1101/2, par. 19—6), the profits he earned should be subject to late claims even if under usual circumstances profits from inventoried assets would not be available to satisfy late claims. He points out that when an administrator fails to get court permission to run the decedent’s business for more than a month and the business suffers a loss, the administrator is held liable for the loss. But this rule is meant to protect heirs from imprudent administrators. It should not be converted into a penalty against heirs for having administrators who act without proper authority.

The appellate court reasoned that because the purpose of the claims-period cutoff is to promote the speedy settlement of estates, profits should be considered uninventoried assets as that will encourage estate representatives to wrap up estates and distribute assets early, so as to avoid claims. Its analysis assumes the only concern of section 18 — 12’s exception for uninventoried assets is to speed up probate, and that it is not meant to be a limited accommodation to late filers at all, but only a means to frighten estate representatives into early distribution of assets. Such an interpretation penalizes heirs of complex estates and encourages estates to be rushed into distribution when this may not be in the best interest of those inheriting the estate. It is not persuasive.

For the foregoing reasons, we reverse the appellate court and affirm the circuit court.

Appellate court reversed; circuit court affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    (No. 54805.
    (No. 55592.

      In re R.R., a Minor, Appellant (The People of the State of Illinois, Appellee).—In re M.J.F., a Minor, Appellee (The People of the State of Illinois, Appellant).

      Opinion filed October 22, 1982.

      Robert Agostinelli and Steven Clark, Deputy Defenders, and Elizabeth Clarke, Assistant Defender, of the Office of the State Appellate Defender, of Chicago (Dan Yuhas, Deputy Defender, and James Woodward, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, of counsel), for appellant R.R.
    Tyrone C. Fahner, Attorney General, of Springfield, and John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Tyrone C. Fahner, Attorney General, of Springfield, and James T. Teros, State’s Attorney, of Rock Island (John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission of Ottawa, of counsel), for the People.
    Steven Clark, Deputy Defender, and Elizabeth Clarke, Assistant Defender, of the Office of the State Appellate Defender, of Chicago (Dan Yuhas, Deputy Defender, and James Woodward, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, of counsel), for appellee M.J.F.
   JUSTICE SIMON

delivered the opinion of the court:

In this consolidated cause we are called upon to decide whether a minor’s contempt-of-court citation based on violation of a supervision order may stand when the order providing for supervision failed to specify a definite period of time. In view of our recent holding in In re T.E. (1981), 85 Ill. 2d 326, we conclude that it may not.

In cause No. 54805, R.R., who had tried to poison her mother and was beyond the control of her parents, was adjudicated a minor otherwise in need of supervision by the Peoria County juvenile court. Subsequently she was held in contempt of court and sentenced to 15 days’ confinement in the Peoria County Juvenile Detention Center. The basis for the contempt citation was that she had without good reason failed to keep several appointments with a therapist, had failed to make any appointment to see another therapist to whom she had been assigned pursuant to the court’s supervision order, and had been absent for three nights from the foster home in which she had been placed. She appealed the contempt sentence, one of the grounds being that the underlying supervisory order on which the contempt charge was based was void ab initio for failure to specify a term. The appellate court held that the indefiniteness of the supervisory period rendered the underlying order merely voidable rather than void; it remanded the cause to the juvenile court for specification of a term of supervision and held that the defect in the original order did not divest the court of its power to issue a contempt citation based on it. (93 Ill. App. 3d 327.) R.R. sought leave to appeal to this court, which we granted.

In cause No. 55592, M.J.F. was adjudicated a minor otherwise in need of supervision by the Rock Island County circuit court, which found that she had run away from home on many occasions. She was made a ward of that court and placed on probation-supervision for an unspecified period of time at a group home, on condition that she attend school regularly and not run away from the home. Subsequently the State filed a motion alleging that M.J.F. had been “on run” and truant. After a hearing she was held in contempt and sentenced to serve 30 days in the Rock Island Juvenile Detention Center. The appellate court in the same district that decided R.R. held, in an unpublished order (98 Ill. App. 3d 1205), that the failure of the original probation-supervision order to specify a term rendered it void and incapable of forming the basis for a contempt citation. The State sought leave to appeal this ruling to this court. We granted leave to appeal and consolidated this appeal with cause No. 54805.

It is established in this State that an order placing a minor on probation must be for a definite term to be enforceable (In re Sneed (1978), 72 Ill. 2d 326, interpreting section 5 — 3 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 705—3)) and that probation orders are void if they do not state such a term (In re T.E. (1981), 85 Ill. 2d 326). The State argues that supervision intrudes less upon a minor’s liberty than does probation and was intended by the statute to be a more flexible disposition, particularly with regard to modification and revocation, and thus should not be held to the same standard of definiteness.

The State correctly points out that the Juvenile Court Act requires notice and a hearing before probation may be revoked or extended (Ill. Rev. Stat. 1979, ch. 37, pars. 705—3(6), (7)), while it places no such limitations on extension of supervision (e.g., Ill. Rev. Stat. 1979, ch. 37, pars. 705—3(9), 705—4). Nor is supervision subject to the maximum period of five years which governs probation. (Ill. Rev. Stat. 1979, ch. 37, par. 705—3(1); see In re Sneed (1978), 72 Ill. 2d 326, 334.) However, these differences alone should not determine how definite a binding order of supervision must be. Section 5 — 3(9) of the Act provides that “[rjules or orders of court must specify the term and conditions of supervision ordered under this Act” (Ill. Rev. Stat. 1979, ch. 37, par. 705—3(9)) and allows the court to “modify or terminate the order of supervision” when it finds that the interests of the minor and the public would be best served by so doing. Thus the statute contemplates that orders of supervision are to be “flexible,” as the State maintains, but only in the sense that they be subject to modification should the need arise. Probation orders, too, are subject to modification, although this would require notice and a hearing, as we have' noted. Moreover, supervision cannot be meaningfully “modified” if its original time terms are unstated, as in the instant cases. It is only when the period of supervision is defined that it is susceptible to “modification” in the best interests of the minor and the public; an indefinite period can arguably be tailored at a judge’s will to meet his evolving perception of the interests of the minor and the public, but that would be giving definition to the period of supervision, not a modification or a changing of it. The provision of section 5 — 3(9) requiring supervision orders to “specify the term” must be read literally if the provision allowing courts to “modify” the orders is to be meaningful as written.

Further support for according supervision orders the same treatment that is given to probation orders emerges from analysis of the State’s contention that supervision intrudes less on a minor’s liberty than does probation. We acknowledge that only those minors who have been adjudged delinquent under the Juvenile Court Act may be placed on probation (Ill. Rev. Stat. 1979, ch. 37, par. 705—2(a)) and that probation can thus be viewed as a substitute for detention, which may still be imposed should the minor violate the conditions of probation (Ill. Rev. Stat. 1979, ch. 37, pars. 705-2(a)(5), 705-3(6)). In contrast, supervision orders may issue merely on a showing that the minor is habitually truant or beyond the control of his parents, without any finding of delinquency, and thus cannot be viewed as a substitute for criminal punishment. (See, e.g., Ill. Rev. Stat. 1979, ch. 37, pars. 705—2(b), 705—3(9).) This does not mean, however, that supervision does not have the effect or intent of restricting the minor’s liberty, or that the difference between probation and supervision in this regard is significant enough to merit different legal treatment. It is incorrect, for one thing, to treat supervision in all cases as something that is imposed to protect the minor rather than to protect society from the minor, as the State invites us to do. As explained above, section 5 — 3(9) of the Juvenile Court Act provides for modification or termination of supervision orders when it is in “the best interests of the minor and the public” to do so (emphasis added) (Ill. Rev. Stat. 1979, ch. 37, par. 705—3(9)). Clearly the statute intends, at least in part, that judges consider the impact on society of releasing a minor with a given background and a given set of propensities; the most one can say for the State’s contention that supervision is aimed at protecting minors is that this is one of the purposes of supervision.

Nor is it proper to conclude that because supervision is not a substitute for physical incarceration it may not have consequences resulting in physical incarceration. The instant cases illustrate this. Detention for contempt of court has recently been held to be a remedy for violation of the conditions of supervision, just as it is for violation of probation. (In re G.B. (1981), 88 Ill. 2d 36.) The loss of liberty is as significant whether imposed for the one or for the other, and in many cases it may not be substantially less of a penalty than the sentence which a minor who violates probation might receive when his probation is revoked. Inasmuch as it is improper to give no notice as to the length of a probation order whose violation can lead to incarceration and a contempt-of-court record, failure to give such notice as to a supervision order should be similarly condemned, particularly because the statute requires notice in so many words.

The State next argues that even if duration must be specified in supervision orders, lack of such specification renders them voidable, rather than void. Thus, the State argues, failure on the part of R.R. and M.J.F. to attack the orders when they were newly issued and subject to direct challenge should prevent them from doing so collaterally here. Again, we see no distinction between probation and supervision which would justify different treatment. In In re T.E., we said:

“[T]he trial courts lacked the statutory authority under the Juvenile Court Act to place the minors on an indefinite term of probation. Those portions of the judgment granting probation for an indefinite term were consequently void and of no effect.” (85 Ill. 2d 326, 336.)

The same considerations apply here. We see no reason to depart from the pronouncement of TE. that an unauthorized order is void.

In view of our holding that the underlying orders of supervision were void, the contempt citations and sentences of detention based on the orders were without foundation and must be overturned. (People v. Williams (1981), 87 Ill. 2d 161, 167.) It is thus unnecessary to consider the other issues urged by the minors in these cases. The appellate and circuit court judgments in the case of R.R. are reversed, and the appellate court judgment in the case of M.J.F. is affirmed. The causes are remanded to the respective circuit courts for proper assessment of a term of supervision.

51805 — Judgments reversed; cause remanded, with directions.

55592 Appellate court affirmed;

circuit court reversed; cause remanded, with directions.


author: JUSTICE UNDERWOOD

text:
    (No. 55675.

      In re ARCHIE BENJAMIN WESTON, Attorney, Respondent.

      Opinion filed October 22, 1982.
    Rehearing denied November 24, 1982.

      David Beckerman, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Harte, Ltd., of Chicago (William J. Harte and David J. Walker, of counsel), for respondent.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

In this disciplinary proceeding the Hearing Board and Review Board of our Attorney Registration and Disciplinary Commission (73 Ill. 2d Rules 751 through 771) have recommended that respondent, Archie Benjamin Weston, Sr., be disbarred. Respondent filed no answer to the Administrator’s complaint, nor did he appear before either of those bodies. He did, however, file in this court a petition to remand the cause to the hearing panel for an evidentiary hearing which we treated as exceptions to the Review Board’s report and recommendations (73 Ill. 2d R. 753(e)). Respondent’s brief included his affidavit purporting to set forth the matters in defense or mitigation upon which he would rely if the cause were to be remanded for an evidentiary hearing. The Administrator, viewing our action regarding the petition for a remand as its denial, and the affidavit as incorporating matters dehors the record, has moved to strike respondent’s brief. That motion was taken with the case and is now denied.

The complaint against respondent concerns his handling of the estate of Ella C. Graham, who died intestate in January 1974, leaving two elderly sisters, both living in South Carolina, as her only heirs at law. Respondent, who petitioned for letters of administration in June 1975, was charged with neglect of his duties as administrator of the estate, with commingling and converting assets of the estate, and with failure to comply with various orders of the probate court. The estate, as indicated by respondent’s application for inheritance tax consents and the petition for letters, consisted of a two-flat building on Chicago’s south side, valued by respondent at $12,000, and personal property valued at $11,148.19. The latter figure, which is disputed by respondent, appears in typed form on the application for inheritance tax consents signed and sworn to by respondent. Paragraph 15 of respondent’s affidavit attached as an appendix to his brief states in part:

“15. Respondent did not complete the Application For Inheritance Tax Consents for Resident Decedent (made part of this record as the Administrator’s Group Exhibit No. 1 before the Hearing Panel) in its present form. The handwritten portions of the application appear to respondent to be his own. He does not know who added the typed information.”

The final sentence of the quoted material implies that the typed portion of the application was added after respondent had completed the handwritten portion. The falsity of that implication, at least as to a part of the application, seems rather clearly demonstrated by the manner in which respondent wrote around the typed portion as illustrated below:

Respondent’s bond as administrator was in the amount of $16,722. The real estate was subsequently valued by the administrator de bonis non at $40,000.

During the 3V2 years respondent served as administrator of the estate no inventory or current accounts were filed, nor was any rent collected on the building, title to which was held in the name of a bank as trustee. The taxes on the building were not paid by respondent, and it was sold in 1976 for nonpayment of the 1974 taxes. When no redemption was made during the extended redemption period, a tax deed issued to the new owner.

In April 1978 a son of one of the heirs, whose attorney had unsuccessfully prodded respondent, complained to the Attorney Registration and Disciplinary Commission regarding respondent’s handling of the estate. Pursuant to instructions of the Inquiry Board (73 Ill. 2d R. 753(a)) the Administrator forwarded to the judge of the probate division of the circuit court of Cook County a copy of the complaint. Thereafter, a rule was issued by that court commanding respondent to show cause why he should not be held in contempt. He requested and secured a continuance but failed to appear on November 3, 1978, the date to which the hearing had been continued, and was removed as administrator. His affidavit states he understood the hearing was continued to December 7, the date originally appearing in the court order but which had been crossed out and the November date written in. An administrator de bonis non was appointed on November 3, and respondent was directed to deliver to him the assets of the estate. Subsequently the court restrained respondent from withdrawing funds from his Client Trust Account, and, on March 7, 1979, the court adjudged him in contempt for failure to turn over the estate assets and entered judgment against the surety for the full amount of the bond. By March 19, however, respondent had turned over $5,000, and the previously issued writ of attachment for contempt was quashed in an order which again directed respondent to turn over the balance of the assets. In May the administrator de bonis non filed a petition to surcharge respondent for waste and neglect, and a consent judgment for $23,000 was subsequently entered against him.

When respondent neither answered the disciplinary complaint against him which had been filed with the Hearing Board nor appeared to defend himself, that board allowed the administrator’s request to consider the charges admitted. The Board did require additional proof of the charges, however, and that proof consisted largely of the court and bank records.

The Hearing Board found that respondent neglected legal matters entrusted to him in violation of Disciplinary Rule 6 — 101(A)(3) of the Illinois Code of Professional Responsibility; that he committed acts prejudicial to the administration of justice and acts which intentionally caused damage and prejudice to his client in violation of Disciplinary Rules 1— 102(AX5) and 7 — 101(AX3); and that he commingled and converted a client’s funds in violation of Disciplinary Rules 9— 102(BX4) and 9 — 102(BX3) (Illinois State Bar Association (1977)).

Respondent now contends that “in the interest of justice” the cause should be remanded because he has a defense to the charges. He acknowledges that he should have responded earlier but claims that he was without funds to hire counsel and was under such emotional stress that he “did not feel mentally or physically capable of presenting his case before the Hearing Panel or Review Board.” The thrust of his proposed defense, as set out in the affidavit attached to the brief, is that after letters of administration were issued to him he turned the matter over to an associate in his office whom he considered competent but who, in July 1978, became mentally ill, was arrested, hospitalized and subsequently left the State. Respondent asserts that he became aware that the associate was having “difficulties in both his personal and professional life” in late 1977, but was not aware of problems in the estate until shortly before he was removed as administrator and that he was unaware of the tax sale of the building until after the redemption period had expired. He argues that although he may be legally responsible for the losses that occurred, he is not “personally or ethically responsible.” He also disputes the amount of personal property which was said to be in the estate and that rent was ever due or owing from the tenants of the building.

We cannot agree that a remand in these circumstances would be appropriate. To, in effect, recommence these proceedings and afford respondent another opportunity to defend the charges because of his claim that he could not cope with the strain in the first place would, it seems to us, be tantamount to condoning unprofessional, indifferent and dilatory behavior by one charged with professional misconduct. It would, we believe, tend to discourage attorneys from cooperating in disciplinary proceedings and could significantly increase the problems of the Attorney Registration and Disciplinary Commission. We never have and will not now encourage indifference to, or inaction regarding charges of, professional misconduct. See In re Levenson (1978), 71 Ill. 2d 486, 490-92; In re Brody (1976), 65 Ill. 2d 152, 156; In re Simpson (1971), 47 Ill. 2d 562, 566; cf. In re Czachorski (1969), 41 Ill. 2d 549, 553 (motion for continuance denied by Commission).

There are additional reasons for our refusal to remand. Respondent’s defense that he did not know of the problems until it was too late simply is not supportable. This court has held that “[a]n attorney cannot avoid his professional obligations to a client by the simple device of delegating work to others.” (In re Ashbach (1958), 13 Ill. 2d 411, 415.) Thus, respondent’s contentions that his associate was responsible for the estate, and that respondent never came into personal possession of its assets, would at most serve as arguments in mitigation. But, even if we were to allow him to argue that his associate, not he, was responsible for the estate, the facts in the record and in his own affidavit do not aid him. According to that affidavit respondent began giving his “close personal attention to the administration of the estate” in late 1977 when he became aware of his associate’s mental problems. The record indicates that in February and March of 1978 respondent was contacted about his neglect of the estate by an attorney representing Ella Graham’s nephew, the son of the one of the surviving sisters, who later complained to the Attorney Registration and Disciplinary Commission. In April and again in May the inquiry panel contacted respondent by letter but he did not reply. In July his associate was hospitalized and soon left the State. In August the inquiry panel notified the probate judge of the nephew’s complaint and respondent was ordered to appear and show cause why he should not be held in contempt for his neglect of the estate. Respondent did appear, by counsel, on September 21 to request a continuance. He failed to appear at the November 3 hearing and was removed as administrator of the estate.

There is no doubt that well in advance of his removal respondent knew the estate was not being properly administered by his associate. Had he acted then, the real estate could have been redeemed, and a major part of the loss avoided. A simple inquiry of the land trustee would have disclosed the problem, since notice of the expiration date of the redemption period was served on both the bank and a tenant in the building in July 1978.

Respondent’s contention that his duties and extensive travels as president of a national association during the 1975-78 period left him little time to supervise the attorneys in his office is not persuasive. Even though respondent considered his associate competent, he knew there were problems more than a year before the tax deed issued, and knew of some of the estate problems at least six months before the deed issued. A lawyer’s primary obligation is to his clients, and neither organizational duties nor a belief in the competency of subordinates is sufficient to justify inadequate supervision, particularly after knowledge of the existence of problems is acquired.

Nor do we regard the fact that respondent was experiencing financial difficulties as relieving him of the obligation to defend the charges against him. We suspended respondent in December 1980 because of his refusal to honor subpoenas which were served upon him in connection with other disciplinary complaints. As a result of that suspension respondent’s principal source of income was terminated, and, he states, he could not afford to retain counsel to represent him in this proceeding. Despite this fact, and respondent’s related argument that because of the psychological strain and pressure he did not feel mentally or physically capable of presenting his case to the hearing or review boards, we are not persuaded that a remand for an evidentiary hearing is either necessary or appropriate.

Subsequent to the briefing and argument of this case and the preparation, except for this paragraph, of this opinion, a motion was filed by respondent to strike his name from the roll of attorneys licensed to practice in this State. When presented in the earlier stages of disciplinary proceedings, such motions generally receive favorable consideration. However, because of the serious nature of the unprofessional conduct involved and the untimeliness of the motion in this case, we have concluded it should be denied.

The allegations of the complaint stand admitted and are also adequately supported by the evidence. (See In re Czachorski (1969), 41 Ill. 2d 549, 552-53; In re Burns (1962), 25 Ill. 2d 56, 58-59.) Under the circumstances the recommendations of the hearing and review boards that respondent be disbarred are warranted. From their inception respondent appears to have largely ignored the disciplinary complaint and proceedings, as he did the complaints and inquiries regarding the handling of the estate. As was said in In re Snitoff (1972), 53 Ill. 2d 50, 55: “That the respondent continued to engage in the misconduct which was the basis of the charges against him after the disciplinary proceeding had commenced well may have reflected to the Committee and Board a completeness of insensitivity to professional responsibilities and an indifference to or contempt for the proceeding.” The primary purpose of disciplinary proceedings is “ ‘to protect members of the public, to maintain the integrity of the legal profession and to safeguard the administration of justice from reproach. [Citations.]' ” (In re March (1978), 71 Ill. 2d 382, 395.) “[I]t is the obligation of this court to strike from the rolls the names of those lawyers who are unable or unwilling to meet the high standards and traditions by which we govern the conduct of the legal profession.” In re Ashbach (1958), 13 Ill. 2d 411, 419-20; see also In re Feldman (1982), 89 Ill. 2d 7; In re Snitoff (1972), 53 Ill. 2d 50.

Accordingly, it is ordered that respondent be disbarred.

Respondent disbarred.


author: JUSTICE CLARK JUSTICE GOLDENHERSH,

text:
    (No. 55563.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RICH CARLSON, Appellant.

      Opinion filed October 22, 1982.

      GOLDENHERSH and SIMON, JJ., dissenting.
    Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield and James R. May, State’s Attorney, of Princeton (John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   JUSTICE CLARK

delivered the opinion of the court:

Following a jury trial in the circuit court of Bureau County, the defendant, Rick Carlson, was convicted of unlawful delivery of a controlled substance and sentenced to four years’ imprisonment. As a consequence of his conviction, the circuit court of Henry County revoked Carlson’s sentenc^ of probation for a prior unrelated conviction and sentenced him to a concurrent four-year term of imprisonment. Carlson filed separate appeals from the Bureau County conviction and from the Henry County probation revocation. Since the sole basis for the probation revocation was the unlawful-delivery conviction, Carlson then moved to consolidate the appeals. The appellate court granted the motion and in a split decision affirmed both the judgment of conviction entered by the circuit court of Bureau County and the order of the circuit court of Henry County revoking defendant’s probation. 98 Ill. App. 3d 873.

Carlson’s defense was alibi. Witnesses for Carlson and for the State gave sharply differing accounts of Carlson’s whereabouts on the evening of September 14, 1979, when the unlawful delivery occurred.

The State’s case in chief consisted of the testimony of Department of Law Enforcement agent Robert Babczak and forensic chemist Susan Hart Johns. Babczak, an officer with five years’ experience as an undercover narcotics agent, testified that he had arranged a controlled purchase of illegal drugs from a person other than Carlson for the evening of September 14, at the Crown Bowling Lanes in Princeton.

Arriving at the Crown Lanes at about 10 p.m., Babczak sat drinking beer in the bowling alley bar, awaiting his prearranged seller. At about 10:45 p.m., Babczak noticed Carlson in the bar area. According to Babczak, Carlson approached him and asked whether he wanted to buy some “downers or acid.” After discussing the price, Babczak agreed to purchase 10 tablets, for which he gave Carlson $30 in advance. Carlson then left the bar area. Approximately 15 minutes later, Babczak also left the bar area to look for Carlson. He found Carlson and a third person, later identified to him as Dan Johnson, in the bowling alley game room. With Carlson looking on, Johnson removed 10 reddish-btown pinhead-sized tablets from a plastic bag, placed them in a second bag, and handed them to Babczak. Nothing was said by any of the three men during this transaction, and no money changed hands. Babczak then returned to the bar to continue waiting for his previously arranged seller.'

Ms. Johns, a forensic chemist at the Morton Crime Laboratory, testified that she had examined the tablets given to Babczak and found them to contain lysergic acid diethylamide (LSD).

Five witnesses (Ray Cork, Donald Lewis, Gary Fisher, Greg Jones, and Tammy Wesner), all of whom were acquaintances or friends of Rick Carlson and of each other, testified in his behalf. Their accounts of Carlson’s whereabouts on the evening of September 14, 1979, were substantially the same, and differed completely from the State’s witnesses’.

On September 12, 1979, a high school classmate and friend of the witnesses and Carlson, Alice McElhinney, had been killed in an automobile accident. After her funeral on Friday, September 14, 'the parents of the deceased teenager had invited some 50 of their daughter’s friends to a gathering at their home. According to the testimony of the defense witnesses, Carlson was with them, at the McElhinney residence all evening and was never out of their presence for more than a short period of time (estimates ranged from 10 minutes to half an hour). The McElhinneys themselves did not testify as they were out of the State at the time of trial.

At the McElhinney’s, the witnesses testified, they drank beer and visited with one another and with the McElhinney family. The young people were gathered in the basement den and recreation room and throughout the evening circulated between these two rooms and the beer keg on the patio. “Joints” of marijuana were being passed around, and each of the witnesses admitted smoking from one to three “joints” in the course of the evening. They testified, however, that they were not so affected by the drug as to be unable to perceive what was going on around them.

The five witnesses all testified that Carlson arrived at the McElhinney home between 7:15 and 7:30 p.m., as did most of the guests. Carlson had driven with his girlfriend, Tammy Wesner, in her car, since he did not have an automobile. One witness, Ray Cork, testified that Carlson and Wesner were at the McElhinney’s when she (Ray Cork) left the gathering at 11:30 p.m. Other witnesses left at various times between 1:30 and 3 a.m. Their testimony was that the friends, including Carlson, were in each other’s company all evening and that Carlson did not leave the McElhinney’s. Tammy Wesner testified that Carlson left the gathering at 2:30 a.m.

The State then called witnesses to rebut defense testimony that Carlson was at the gathering at the McElhinney’s and therefore could not have been at the Crown Lanes at the time of the unlawful delivery. Agent Babczak testified on rebuttal that 15 to 20 minutes after the drug transaction, which took place at 11:05 p.m., a fight broke out at the bowling alley. Several people, including Babczak and Carlson, attempted to break up the fight. Bureau County deputies arrived some 10 to 15 minutes later and removed one of the disputants, identified as Mike Walters. Carlson followed Walters and the deputies outside, where Walters was put into a squad car. Babczak stated that he observed Carlson speaking to Walters, and that Carlson then told him (Babczak) that he was going to the jail to see about bond for Walters. Carlson then left, and Babczak returned to his original assignment. Later, some time after midnight, Babczak again saw and spoke to Carlson at the bowling alley.

Bureau County deputies Duane Mechling, Larry Floyd, and Greg Johnson also testified concerning the fight incident. Mechling and Floyd responded to a radio call regarding a fight at the Crown Lanes and took Mike Walters into custody at around 11:30 p.m. The deputies were personally acquainted with Carlson and Walters, and identified them and a number of other persons as having been present at the Crown Lanes or the Bureau County jail, where Mechling took Walters to cool off. Mechling testified that Carlson and another person, Barry Paxton, came to the jail and that Carlson spoke with Walters in the booking room. Mechling released Walters after approximately 30 minutes, and Walters, Paxton, and Carlson left the jail together. Later on his way home Mechling saw Carlson and Walters walking west on Peru Street in the direction of the Crown Lanes.

Deputy Johnson, who had been engaged in surveillance of Agent Babczak from outside the Crown Lanes, similarly testified to Carlson’s presence at the bowling alley at the time Walters was taken into custody, and to Carlson’s presence at the county jail. He also testified that after he returned to the Crown Lanes shortly after midnight, he observed Carlson and Walters returning there on foot.

There was testimony that it took 5 to 7 minutes to drive the approximately three-mile distance from the McElhinney residence to the Crown Lanes, and approximately 10 minutes to drive from the Crown Lanes to the Bureau County jail.

Since Walters was not formally charged, there was no written police record of the September 14 fight incident. All three deputies testified that fights at the Crown Lanes were a regular occurrence. Although deputies Mechling and Floyd testified in detail as to the number and the identity of the people present at the fight on September 14, they were unable to recall who had been involved in any of the other incidents, including a fight that occurred the following weekend.

On appeal, Carlson raised three issues. First, he contended that the circuit court committed prejudicial error in permitting the State, over defense counsel’s objections, to elicit testimony from a defense witness concerning Carlson’s use of marijuana. This occurred when the prosecutor was cross-examining witness Greg Jones about marijuana smoking at the gathering at the McElhinney’s, and asked whether Carlson had also smoked marijuana that night. The witness answered, “Yes.” An objection by defense counsel was overruled. The State’s Attorney then repeated the question, and the witness this time answered, “Probably.” Defense counsel again objected and was overruled. Over defense counsel’s repeated objection, the prosecutor asked the same question a third time and the witness responded, “No, not really.”

The second error asserted was the prosecutor’s reference, in closing argument, to other drug transactions supposedly engaged in by the defendant, when no evidence of such offenses had been admitted. On direct examination, Agent Babczak had testified that he had met Carlson on previous occasions and had had discussions with him. The State’s Attorney then asked Babczak about the "subject matter of the discussions. Defense counsel’s objection to the question was sustained. In closing argument the State’s Attorney, referring to Babczak’s direct testimony, said, “Now Mr. Babczak testified that he had talked to the defendant on previous occasions, that they discussed drugs on previous occasions, and that the defendant approached him to make the sale.” Defense counsel objected, stating that that was not the evidence. The court responded, “The jury heard the evidence.”

The third issue raised on appeal was whether the circuit court erred in explaining to the jury its ruling on the inadmissibility into evidence of a letter written by Carlson to a witness while Carlson was in pretrial custody. The letter requested the witness to arrange for another person to testify in Carlson’s behalf. In refusing to allow the State’s Attorney to question the recipient, Tammy Wesner, about the contents of the letter, the court stated:

“Quite simply, so the jury will understand, we’re not going to get into the constitutional argument here on using of the letter with the U.S. Mail and sensor [sic] of the mail and that sort of thing. So that is why we’re doing it.”

The appellate court majority agreed with the defendant that the admission of evidence of his unrelated criminal actions was erroneous, and that the prosecutor’s misstatement of the evidence in closing argument also was error, but held that the errors were harmless. It did not believe that the circuit court’s explanation of its ruling regarding the letter constituted error, but held that even if it were, it too was harmless. We agree with the appellate court that while errors did occur, they were harmless, and we affirm.

As the appellate court correctly held, it was error to allow the prosecutor to elicit testimony concerning unrelated criminal activity of the defendant. Evidence of collateral crimes is inadmissible if relevant only to establish the defendant’s propensity to commit crimes. (People v. Lindgren (1980), 79 Ill. 2d 129, 137; People v. Romero (1977), 66 Ill. 2d 325, 330.) Such evidence may be admissible if relevant to show knowledge, intent, motive, design, plan, or identification (People v. McDonald (1975), 62 Ill. 2d 448, 455); but the testimony that Carlson had smoked marijuana at the gathering clearly was not relevant to any of these legitimate purposes.

We also agree that the prosecutor’s misstatement of the evidence in closing argument constituted error. It is axiomatic that , statements of fact not based on the evidence may not be argued to the jury. (People v. Beier (1963), 29 Ill. 2d 511, 517.)

We do believe, however, that any prejudice that might have ensued to the defendant from the prosecutor’s misstatement in his closing argument was cured by the court’s response that “the jury heard the evidence,” together with a later general admonition by the court in the course of the jury instructions that arguments are not evidence.

While Greg Jones was improperly cross-examined concerning Carlson’s use of marijuana, we do not think that the jury was prejudiced in view of the witness’ equivocation and apparent retraction.

Evidentiary errors like those that have occurred in this case can be labeled harmless only if properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant (People v. Lindgren (1980), 79 Ill. 2d 129, 141; People v. Tranowski (1960), 20 Ill. 2d 11, 17, cert. denied (1960), 364 U.S. 923, 5 L. Ed. 2d 262, 81 S. Ct. 290); or as other cases have put it, only if the record affirmatively shows that the error was not prejudicial (People v. Romero (1977), 66 Ill. 2d 325, 332).

Positive identification of Carlson was given by undercover narcotics agent Robert Babczak. Babczak testified that Carlson arranged the delivery of lysergic acid diethlyamide (LSD) and received payment for the sale. The alibi witnesses’ testimony that Carlson was with them on the night in question was rebutted by several police officers who testified that Carlson was at the scene of the sale after the transaction took place. We find that the properly admitted evidence is so overwhelming that no fair-minded jury would reasonably have voted to acquit. People v. Lindgren (1980), 79 Ill. 2d 129, 141.

Concerning the third alleged error, we note that the correctness of the circuit court’s ruling — involving the issue whether the State may introduce, either as substantial evidence or to impeach, a letter written by defendant while in pretrial custody and obtained by the State through censorship by prison officials — was not argued in this or the appellate court, and is not before us. Rather, defendant contends that he was prejudiced by the court’s remarks to the jury in excluding the letter, which defendant argues might have tended to lead the jury to believe that evidence probative of defendant’s guilt was being withheld from them. At the outset of his attempt to introduce the letter, the State’s Attorney stated before the jury that the letter related to Tammy Wesner’s motive in arranging for other witnesses to testify for the defendant. In the context of the examination, we do not think the jury could have been misled by the court’s comment.

The judgment of the appellate court is affirmed. The judgments of conviction entered by the circuit court of Bureau County and the order of the circuit court of Henry County revoking the defendant’s probation are also affirmed.

Judgment affirmed.

JUSTICE GOLDENHERSH,

dissenting:

I dissent. I do not agree with the majority that the errors here were harmless, and in my opinion the defendant did not receive a fair trial.

It should be noted that only the testimony of Robert Babczak connected the defendant with the sale of LSD. The forensic chemist who testified knew nothing concerning the alleged sale, and the other rebuttal witnesses testified only that defendant was present at the time that a fight occurred. Opposed to this was the alibi testimony of a number of witnesses who had attended the gathering at the McElhinney residence. This record does not support the conclusion of the majority that the evidence of guilt was overwhelming.

The charge here was possession and delivery of a controlled substance. Although the testimony erroneously admitted concerning defendant’s having smoked marijuana might have been harmless under some circumstances, it was extremely harmful in a case involving a controlled substance. The error was exacerbated by the State’s Attorney’s improper argument and further aggravated by the fact that the court’s noncommittal comment could be interpreted to mean that there was evidence to support the prosecutor’s comment. Not as important as the other two matters, but notable because of its cumulative effect, is the manner in which the court ruled on the matter of the letter.

In Duffy v. Cortesi (1954), 2 Ill. 2d 511, 517, this court said:

“Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial.”

This record fails to make that affirmative showing, and I would reverse the judgment and remand the cause for a new trial.

JUSTICE SIMON joins in this dissent.


author: JUSTICE MORAN

text:
    (No. 55681.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. AMERICO NIEVES, Appellee.

      Opinion filed October 22, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Edward F. Petka, State’s Attorney, of Joliet (Herbert Lee Caplan, Melbourne A. Noel, Jr., Thomas E. Holum, Kenneth A. Fedinets, and Marcia L. Friedl, Assistant Attorneys General, of Chicago, and John X. Breslin and Kenneth A. Wilhelm, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli and Stephen H. Omolecki, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Will County, Americo Nieves was convicted of the unlawful delivery of more than 15 grams of a substance containing heroin and sentenced to 30 years in prison. The appellate court held that the admission into evidence of tape-recorded phone conversations was error, due to the State’s failure to comply with section 108A — 7(b) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1977, ch. 38, par. 108A—7(b)). The court, therefore, reversed defendant’s conviction and remanded the cause for a new trial. (99 Ill. App. 3d 447.) We granted leave to appeal.

The issues are: (1) Was suppression of recorded conversations between an undercover officer and defendant required by article 108A of the Code (Ill. Rev. Stat. 1977, ch. 38, pars. 108A—1 to 108A—11)? (2) Did defendant knowingly waive his right to counsel in the absence of a proper admonishment?

The facts are uncontroverted. On January 12, 1978, the trial court granted the State’s request for an order allowing the use of an eavesdropping device pursuant to article 108A. The order permitted eavesdropping from 6 p.m., January 12, to 6 p.m., January 22, 1978. On January 12, the consenting party to the eavesdrop, undercover narcotics officer Joseph Andalina, tape recorded a telephone conversation with defendant relating to a purchase of five to eight ounces of heroin. Andalina also recorded a telephone conversation with defendant at noon on the following day, at which time they agreed to a delivery at 3 p.m. that day. At approximately 4:30 p.m., defendant arrived at a prearranged parking lot and delivered several plastic bags of a brown powder, for which the officer paid defendant $1,300 in marked currency. Defendant was arrested at the scene by other officers who also recovered approximately 99.5 grams of additional heroin in bags found near a garbage can.

Prior to trial, defendant filed a motion to suppress the recordings of the telephone conversations. At the hearing on the motion, the State stipulated to the facts contained in the first five paragraphs of defendant’s motion, which were as follows:

“1. That the Illinois Revised Statutes, Chapter 38, Section 108A — 7(b) states that immediately after the expiration of the period of an Order allowing eavesdropping all recordings shall be made available to the Judge issuing the order.
2. That the Order issued by Judge Robert Buchar on January 12, 1978 allowed eavesdropping from that date until January 22, 1978.
3. That the recordings made pursuant to said order were not immediately made available to Judge Buchar and in fact were not reviewed by him until February 8, 1978.
4. That the passage of 16 days from the termination of the date of the order of January 12, 1978 is a period of time of such duration as to fall outside of the immediacy requirement of Chapter 38, Section 108A — 7(b).
5. That the order entered January 12, 1978 by Judge Robert Buchar was improperly granted and that it contains no specific statements as to whether or not the use shall automatically terminate when the described conversations have been first obtained as is required under Chapter 38, Section 108A — 5(a)(3).”

Also at the hearing, Andalina testified that only the conversations of January 12 and 13, 1978, were recorded, and that the eavesdrop was discontinued after the second day of the 10-day authorized period. Andalina also testified that he retained custody of the tape recordings from January 13 to the time they were turned over to the State’s Attorney’s office and to Judge Buchar. On February 8, the recordings were brought before the trial judge for review and sealing. The trial court denied the motion to suppress and, at trial, the tapes were admitted into evidence and played to the jury.

The State argues that where, as here, the tapes were judicially sealed 16 days after expiration of the order, article 108A does not require the tapes to be suppressed. Defendant argues that the State’s admitted failure to “immediately” turn over the tapes for sealing under section 108A — 7(b) prevents disclosure of the recordings.

Section 108A — 7 provides:

“Retention and Review of Recordings.
(a) The contents of any conversation overheard by any eavesdropping device shall, if possible, be recorded on tape or a comparable device. The recording of the contents of a conversation under this Article shall be done in such a way as will protect the recording from editing or other alterations.
(b) Immediately after the expiration of the period of the order or extension or, where the recording was made in an emergency situation as defined in Section 108A — 6, at the time of the request for approval subsequent to the emergency, all such recordings shall be made available to the judge issuing the order or hearing the application for approval of an emergency application.
The judge shall listen to the tapes, determine if the conversations thereon are within his order or were appropriately made in emergency situations, and make a record of such determination to be retained with the tapes.
The recordings shall be sealed under the instructions of the judge and custody shall be where he orders. Such recordings shall not be destroyed except upon order of the judge hearing the application and in any event shall be kept for 10 years if not destroyed upon his order.
Duplicate recordings may be made for any use or disclosure authorized by this Article. The presence of the seal provided for in this Section or a satisfactory explanation for the absence thereof shall be a pre-requisite for the use or disclosure of the contents of the recordings or any evidence derived therefrom.” (Ill. Rev. Stat. 1977, ch. 38, par. 108A—7.)

Section 108A — 9 provides:

“Motion to Suppress Contents of Recording, etc.
(a) Any aggrieved person in any judicial or administrative proceeding may move to suppress the contents of any recorded conversation or evidence derived therefrom on the grounds that:
(1) the conversation was unlawfully overheard and recorded;
(2) the order of authorization or approval under which the device was used or a recording made was improperly granted; or
(3) the recording or interception was not made in conformity with the order of authorization.” (Ill. Rev. Stat. 1977, ch. 38, par. 108A—9.)

The State contends that the failure to “immediately” turn over the tapes to the issuing judge under section 108A — 7(b) does not require suppression under section 108A — 9. Thus, although the State concedes it failed to adhere to the immediacy requirement, it argues that, in this case, the 16-day delay following expiration of the order was a “technical violation” that did not merit suppression.

This issue has not been addressed previously by this court. However, the effect of failure to adhere to the immediacy requirement of the similarly worded Federal counterpart to the Illinois act has been the subject of considerable analysis in the Federal circuit courts of appeal. Section 2518(8Xa) in title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. sec. 2518(8Xa) (1976)) provides:

“The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents *** shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. *** The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom.”

Section 2518(10)(a) in title III provides in part:

“Any aggrieved person in any trial, hearing, or proceeding in or before any court *** may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
(i) the communication was unlawfully intercepted;” (18 U.S.C. sec. 2518(10)(a)(1976).)

As noted above, the wording in the Federal and Illinois statute is virtually identical in all pertinent respects.

The United States Supreme Court in United States v. Chavez (1974), 416 U.S. 562, 574-75, 40 L. Ed. 2d 380, 392, 94 S. Ct. 1849, 1856, made clear that not every failure to comply fully with any requirement in title III would render the communication unlawful under 2518(10XaXi). That section has been interpreted by the Supreme Court to require suppression “where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” (United States v. Giordano (1974), 416 U.S. 505, 527, 40 L. Ed. 2d 341, 360, 94 S. Ct. 1820, 1832.) The Ninth Circuit Court of Appeals in United States v. Chun (9th Cir. 1974) 503 F.2d 533, 541-42, interpreted Chavez and Giordano as setting forth the following test in resolving whether failure to adhere to a statutory eavesdropping requirement falls within the proscriptive language of section 2518(10)(a)(i). That test requires suppression for a post-interception failure to comply with statutory requirements based on a determination of whether (1) the particular safeguard is a central or functional safeguard in the congressional scheme to prevent abuses, (2) the purpose that the particular procedure was designed to accomplish has been satisfied in spite of the error, and (3) the statutory requirement was deliberately ignored and, if so, whether there was any tactical advantage to be gained by the government. In determining if failure to meet the immediacy requirement falls within the proscription of section 2518(10XaXi), the Seventh Circuit Court of Appeals has advanced the test advocated in Chun. United States v. Lawson (7th Cir. 1975), 545 F.2d 557, 564. Accord, United States v. Angelini (7th Cir. 1977), 565 F.2d 469, 471, cert. denied (1978), 435 U.S. 923, 55 L. Ed. 2d 517, 98 S. Ct. 1487.

With respect to the above criteria, it has been consistently held that the immediate-sealing requirement is a primary safeguard in the legislative scheme (factor 1) and that the function of the post-interception procedural requirement is to preserve the integrity of the intercepted conversations and to prevent any tampering or editing of the tapes (factor 2). (E.g., United States v. Angelini (7th Cir. 1977), 565 F.2d 469, 471, cert. denied (1978), 435 U.S. 923, 55 L. Ed. 2d 517, 98 S. Ct. 1487; United States v. Lawson (7th Cir. 1975), 545 F.2d 557, 564.) The inquiry under factor (2) of the test thus becomes whether that purpose has been fulfilled despite failure to adhere to the immediacy requirement.

In Lawson, there was a virtually unexplained delay of 57 days from expiration of the interception order to presentation of the tapes to a judge for sealing. The court held that because the purpose of the immediate-sealing requirement (the integrity of the tapes) was not challenged, the wiretap evidence should not be suppressed. (545 F.2d 557, 564.) However, the same court expanded its approach when it again addressed the issue in Angelini. There, the court held that the initial inquiry is whether a satisfactory explanation is given for failure to adhere to the immediacy requirement. If so, the evidence is admissible. If not, the test described in Chun and Lawson is applied to determine if section 2518(10XaXi) is violated. Thus, either a sufficient excuse or compliance with the three-step test of Chun is sufficient for admission of the evidence, despite a violation of the immediate-sealing requirement. (United States v. Diana (4th Cir. 1979), 605 F.2d 1307, 1313, cert. denied (1980), 444 U.S. 1102, 62 L. Ed. 2d 787, 100 S. Ct. 1067.) In Angelini, the court found that despite delays of nine to 26 days, the tapes should not be suppressed. It found that there was a satisfactory explanation for the delay. The court also concluded that the congressional purpose underlying the sealing requirement was satisfied inasmuch as there was no substantial question raised about the integrity of the tapes. The court stated:

“The district court’s unchallenged finding was that there was ‘no tampering whatsoever.’ That conclusion goes a long way towards satisfying the Lawson inquiry referred . to above. As we have noted, Lawson approved a refusal to suppress, even in the face of an inadequate explanation for a sealing delay longer than those before us here, because the integrity of the tapes was not challenged.” United States v. Angelini (7th Cir. 1977), 565 F.2d 469, 473.

The Third, Fourth, Fifth, and Eighth Circuits have also held that a dispositive, or at least an important, factor in overcoming an “immediacy” violation is the absence of a challenge to the integrity of the tapes or the absence of any showing that the integrity was violated. (United States v. Falcone (3d Cir. 1974), 505 F.2d 478, cert. denied (1975), 420 U.S. 955, 43 L. Ed. 2d 432, 95 S. Ct. 1338; United States v. Diana (4th Cir. 1979), 605 F.2d 1307, cert. denied (1980), 444 U.S. 1102, 62 L. Ed. 2d 787, 100 S. Ct. 1067; United States v. Diadone (5th Cir. 1977), 558 F.2d 775, cert. denied (1978), 434 U.S. 1064, 55 L. Ed. 2d 765, 98 S. Ct. 1239; United States v. Sklaroff (5th Cir. 1975), 506 F.2d 837, cert. denied (1975), 423 U.S. 874, 46 L. Ed. 2d 105, 96 S. Ct. 142; McMillan v. United States (8th Cir. 1977), 558 F.2d 877.) The courts in these circuits held that although the defendant does not carry the burden of proving the tapes have been tampered with, the lack of any indication that the integrity has been disturbed would play a major role in preventing suppression. Their underlying rationale is that if the integrity of the tapes is not in question, the congressional purpose behind the immediate-sealing provision (maintaining the integrity of the tapes) is fulfilled.

The Second Circuit and some State courts have adopted a more restrictive approach, in that they require the prosecution to establish a satisfactory explanation for delay in sealing. (United States v. McGrath (2d Cir. 1980), 622 F.2d 36; United States v. Vazquez (2d Cir. 1979), 605 F.2d 1269, cert. denied (1979), 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484; United States v. Gigante (2d Cir. 1976), 538 F.2d 502; State v. Cerbo (1979), 78 N.J. 595, 397 A.2d 671; People v. Washington (1978), 46 N.Y. 2d 116, 385 N.E. 2d 593.) These courts reason that a delay in sealing is tantamount to the absence of a seal, which is permitted only in the presence of a satisfactory explanation. They have held that the question of the integrity of the tapes, in and of itself, is not sufficient to allow admission of wiretap evidence where the immediacy requirement has been violated. The underlying rationale on which this conclusion is premised is the susceptibility of recorded evidence to manipulation and the difficulty of detecting alterations. United States v. Gigante (2d Cir. 1976), 538 F.2d 502, 505; People v. Washington (1978), 46 N.Y. 2d 116, 123-24 n.7, 385 N.E.2d 593, 597 n.7. See People v. Nicoletti (1974), 34 N.Y.2d 249, 253, 313 N.E.2d 336, 338.

After thorough review of the literature, we believe the test promulgated in Chun and advanced by the Seventh Circuit in Lawson and Angelini with respect to title III is an appropriate test when applied to the corresponding sections of the Illinois act, (Ill. Rev. Stat. 1977, ch. 38, pars. 108A—7(b), 108A—9(a)(1)). With respect to the first factor of the test, we conclude at the outset, as the Federal courts have done with respect to title III, that the immediate-sealing requirement is one of the prime features of the legislative scheme for preventing wiretapping abuses.

With respect to factor (2), we note that even the courts requiring a satisfactory explanation acknowledge that the statutory purpose of the immediate-sealing requirement is to prevent tampering, alteration or editing and to preserve the integrity of the tapes. Where the issue is immediacy, we believe that if a defendant challenges the integrity and presents some evidence to support the challenge, the burden should shift to the State, similarly to when suppression of a confession is sought, and the State must show that the tapes have not been altered. Like the majority of Federal circuit courts that have addressed this issue, we conclude that the absence of any challenge to the integrity of the tapes, combined with the lack of any indication that tampering has occurred, goes a long way toward fulfilling the legislative objective. Another consideration we deem germane in determining if the legislative purpose is achieved is the length of the delay. Accord, United States v. Diana (4th Cir. 1979), 605 F.2d 1307, 1315, cert. denied (1980), 444 U.S. 1102, 62 L. Ed. 2d 787, 100 S. Ct. 1067.

In the instant case with regard to factor (2), defendant did not allege that the tapes admitted at trial were edited, altered, or constituted an inaccurate representation of the two conversations. The undercover officer testified that the tapes were in his custody until they were taken to the State’s Attorney and to the issuing judge on February 8, 1978. He also testified at trial that the tapes, accurately represented the entire conversations between defendant and him on January 12 and 13. There was no evidence whatsoever that any tampering had occurred, nor was there any indication that the tapes had been played for transcription, duplicated, or used in any way where there would have been an opportunity for an alteration to occur. (See United States v. Angelini (7th Cir. 1977), 565 F.2d 469, 474. Compare People v. Washington (1978), 46 N.Y. 2d 116, 385 N.E.2d 593 (technical problems with recording equipment and time spent transcribing did not suffice as reasonable explanation for sealing delay).) Under the circumstances of this case, we conclude that, despite the delay, the legislative purpose of preserving the integrity of the tapes was achieved.

With respect to factor (3) of the test, we discern neither bad faith nor any attempt to gain an advantage over defendant on the part of the State. Moreover, at the conclusion of the suppression hearing, the judge specifically found that the tapes were returned in sufficient time to be reviewed by the court and that defendant was not prejudiced in any way by the sealing delay. For all the above reasons, we hold that the tapes were properly admitted at trial.

We stress that admissibility here is premised on the facts and circumstances of this case. We asseverate that this opinion should not be interpreted as an invitation to violate the post-interception requirements in section 108A— 7(b) of the Code. We realize that situations may arise where the State will argue it was unable to turn over tapes “immediately,” due to the need for transcription in preparation of trial, which will raise the inquiry of whether the purpose of the statute has been fulfilled. However, with modem technology, the State should be able to make a simultaneous duplicate original recording. This should enable the State to turn over the original tape immediately following expiration of the order, thereby eliminating the need for the inquiry undertaken in this case.

Defendant next contends that he did not knowingly and intelligently waive his right to counsel where he was not properly admonished in accordance with our Rule 401(a) (73 Ill. 2d R. 401(a)). The State responds that Rule 401(a) admonishments were unnecessary because defendant did not actually waive his right to counsel.

After reviewing the record, we conclude that the total admonishments required by Rule 401(a) were not necessary in the instant case. The record discloses that at a hearing on June 26, 1978, defendant indicated he wished to represent himself. However, at a hearing on August 22, prior to the start of trial, a lengthy colloquy ensued among defendant, his appointed counsel, and the judge.

At one point, the following exchange occurred:

“THE COURT: My plans were for [Mr. Kielian, defendant’s appointed counsel,] to be stand-by counsel in this case to take over in the event that you are unable to continue with the trial.
DEFENDANT: Is he going to be stand-by?
THE COURT: That is right.
* * *
DEFENDANT: He is going to assist me, in other words, Mr. Kielian?
THE COURT: Whatever you want him to do, Mr. Nieves. I have offered him to you for technical assistance, if you wish. You would like to be your own counsel and now I have watched you in these other trials. You seem to be very knowledgeable of how to conduct the trial of a case.
DEFENDANT: Yes.
THE COURT: I nevertheless always recommend a person have counsel.
DEFENDANT: Thank you.
THE COURT: Because he is disinterested, also objective. He looks at things in different ways and he is more knowledgeable of the rules of court. Things do flow smoother with Mr. Kielian rather than yourself, or some other public defender.
DEFENDANT: Well, then, at this moment, your Honor, I would like to withdraw Mr. Gerald Kielian’s name as the defense witness.
THE COURT: Okay.
DEFENDANT: That means he doesn’t have to be subpoenaed and I would like him to sit by me as my assistant in this case, if it is allowable by the State, Mr. Mueller.
THE COURT: Perfectly all right, Mr. Nieves.”

The court then went on to explain that an unlicensed defendant cannot be “co-counseled” with a licensed member of the bar and that defendant would be the sole attorney in the case. After considerable discussion in which defendant stated he wished to represent himself, but that he wanted Mr. Kielian’s assistance, the following dialogue took place toward the end of the hearing:

“THE COURT: Let me ask you this question, Mr. Nieves. Do you want Mr. Kielian to sit in the back of the courtroom as stand-by, before the Court or do you want him to sit at your counsel table?
DEFENDANT: I want him to sit at my counsel table, a technical advisor.
THE COURT: And you want to ask him some technical questions?
DEFENDANT: On and off, yes, your Honor.
THE COURT: Mr. Kielian, as I interpret the cases I think the Court has an obligation to furnish the defendant technical advice if he wishes it. This does not make you co-counsel, it doesn’t give you responsibility for the case. He is making all the decisions.
However, he has a right to say to the Court, T would like to have somebody that I can get some advice and counsel from.’ And I think I have the obligation to furnish it.
MR. KIELIAN: Fine.
THE COURT: So, you are saying that that expels you— I don’t know how we are ever going to immunize anybody.
MR. KIELIAN: Judge, I don’t see any distinction between being a technical advisor and co-counsel, other than I am not on the record. But he can say, you know, look on the record. He was sitting here. I asked him' advice; he gave me wrong advice. I am dissatisfied with him as counsel; I am dissatisfied with him as technical advisor. They forced this technical advisor on me.
DEFENDANT: No, it is not forced. I am asking you. You are not — I am asking you *** to be my technical ad-visor.
THE COURT: He is requesting.
DEFENDANT: It isn’t forced. I am requesting this.”

Thus, defendant wished to defend himself, but at the same time sought the presence of an attorney at his counsel table who would render him assistance. We hold that under the circumstances of this case, where defendant sought and was granted the “technical assistance” of an attorney, who was present during trial, defendant need not be given all of the required admonishments under Rule 401(a). See People v. Pittman (1979), 75 Ill. App. 3d 683, 687-88; People v. Lindsey (1974), 17 Ill. App. 3d 137, 140-41.

In reaching this conclusion, we note that the record discloses defendant’s awareness of the nature of the charge and the potential sentence he could receive. This was the last in a series of several related trials against defendant. In one of the other cases, defendant was charged and convicted on April 26, 1978, of unlawful delivery of less than 15 grams of a substance containing heroin (a Class 2 felony). In another case, defendant was charged and convicted on May 11, 1978, of unlawful delivery of more than 15 grams of a substance containing heroin (a Class 1 felony), the same type of offense as in the instant case. (Ill. Rev. Stat. 1977, ch. 561/2, pars. 1401(a)(1), (b).) On June 26, 1978, following the above convictions, prior to sentencing, defendant sought to represent himself in those cases as well as in the instant case. Then, on July 31, before the August 22 hearing in this case, the minimum and maximum sentencing possibilities for the other two convictions, including the applicability of the extended-term provisions, and the old and new sentencing alternatives, were fully explained to defendant by the same trial judge. In addition, the record reveals defendant did not lack legal sophistication, an observation that was made by the trial court at both the June 26 and August 22 hearings. Accordingly, we find that defendant was fully cognizant of the charge, the possible penalties to be imposed, and the right to counsel. We conclude that, under the facts and circumstances of this case, it was unnecessary for the trial court to give the specific admonishments set forth in Rule 401(a).

For the above-stated reasons, the judgment of the appellate court is reversed and the judgment of the circuit court of Will County is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE WARD

text:
    (No. 55263.
    LAKI RHODES, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Arlington Park Towers Hotel, Appellee).

      Opinion filed October 22, 1982.

      Robert W. Cushing, of Chicago (Ambrose & Cushing, P.C., of counsel), for appellant.
    Anthony J. Caruso, Jr., of Discipio, Martay & Caruse, of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

On September 23, 1974, Laki Rhodes filed a claim against the Arlington Park Towers Hotel under the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) for injuries he claimed he received when he fell down a stairwell while employed at the hotel. On April 14, 1975, an Industrial Commission arbitrator found that the respondent was operating subject to the provisions of the Workmen’s Compensation Act, that the relationship of employee and employer existed between the claimant and the respondent, and that the claimant failed to prove that he sustained accidental injuries arising out of and in the course of employment. On January 24, 1978, the Industrial Commission affirmed the arbitrator’s denial of an award. On December 21, 1978, the circuit court of Cook County set aside the Commission’s finding and remanded the cause to the Industrial Commission for a hearing de novo. On November 14, 1980, the Industrial Commission found that an employer-employee relationship did not exist between the claimant and the respondent and that the claimant failed to prove that he sustained accidental injuries arising out of and in the course of his employment. The circuit court of Cook County then confirmed the Industrial Commission’s finding. The claimant appealed directly to this court pursuant to Rule 302(a)(2). 73 Ill. 2d R. 302(a)(2).

Rhodes, maintaining that he was an employee of the respondent at the time of the accident and that the accident arose out of and in the course of his employment, urges us to reverse the circuit court. We consider that any recovery under the Workmen’s Compensation Act was barred under the circumstances by his acceptance of payments made in settlement of a negligence action he filed.

On October 22, 1975, Rhodes filed a common law negligence action against Madison Square Garden Hotels, Inc., and the respondent, Arlington Park Towers Hotel Corporation, seeking damages for injuries in the accident described here. The Arlington Park Towers Hotel was owned, operated, and maintained by the Arlington Park Towers Hotel Corporation, a subsidiary of Madison Square Gardens Hotels, Inc., on the date of the accident. (The parties agree that the Arlington Park Towers Hotel and the Arlington Park Towers Hotel Corporation are the same legal entity for purposes of this suit.) The complaint stated that the plaintiff, Rhodes, was a business invitee of the defendants. Service was had upon the defendants’ agent, CT Corporation Systems, but the defendants apparently were not notified of the suit and no appearance was filed. On March 29, 1976, a default judgment was entered in favor of the plaintiff for $75,000. A citation to discover assets was served upon CT Corporation Systems on July 5, 1979, and the defendants filed a motion to vacate the default judgment. Before the motion was acted upon, the parties entered into a settlement whereby Rhodes accepted $50,000, but the release he gave was not to affect his pending workmen’s compensation claim. The release purported to discharge the defendants “from any and all actions, causes of action, suits, damages, claims, and demands whatsoever, whether known or unknown, excepting only that claim set forth and described fully below in paragraph ‘(C)’ of this general release.” Paragraph (C) states that the release “shall not act as a release or waiver of my claim under the Illinois Workmen’s Compensation Act.” Rhodes’ attempt to preserve a workmen’s compensation claim was ineffectual.

Section 5 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5) provides that “[n]o common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.” The Workmen’s Compensation Act replaced all previously existing common law rights and liabilities between employees and employers subject to the Act with a new system of rights, remedies, and procedure for accidental injuries or deaths of employees. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.) Thus, where the injury was to an employee of the respondent and arose out of and in the course of employment, the Workmen’s Compensation Act represented the employee’s exclusive remedy.

Although there is nothing to prevent a cautious employee who has a pending workmen’s compensation claim from also filing a common law action, if he is uncertain of his ground for recovery, so as to toll the statute of limitations, he cannot recover payments from the employer under both actions. The legislative intention underlying section 5 of the Workmen’s Compensation Act would obviously be frustrated if an injured employee could recover damages in a common law action and workmen’s compensation benefits as well. If an employee initiates a common law action for his injury and receives payment from his employer as a result of such suit he is disqualified from obtaining an award under the Workmen’s Compensation Act. The statute’s design was to serve as a substitute for an employee’s common law right of action and not as a supplement to it.

In Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 241, this court stated: “[Wjhere an employee *** has collected compensation on the basis that his injuries were compensable under the Act, the injured employee cannot then allege that those injuries fall outside the Act’s provisions. We base this conclusion not only upon a fear of double recovery [citation], but also upon our desire to prevent the proliferation of litigation. [Citation.] Since this plaintiff has collected compensation pursuant to an agreement executed in lieu of a claim and approved by the Industrial Commission, giving that settlement the status of an award [citations], he is now precluded from suing for civil damages.” This reasoning is applicable to the situation here. Where an employee has been compensated by the employer through a common law action, further recovery under the Workmen’s Compensation Act is barred under the legislative intendment. See Martin v. C.A. Produc tions Co. (1960), 8 N.Y.2d 226, 168 N.E.2d 666, 203 N.Y.S.2d 845; Russell v. 231 Lexington Avenue Corp. (1935), 266 N.Y. 391, 195 N.E. 23; 2A A. Larson, Workmen’s Compensation sec. 67.22 (1982).

The judgment of the circuit court of Cook County is affirmed, not on the ground that an employer-employee relationship did not exist, but for the reasons set out in this opinion.

Judgment affirmed.