text:
    (No. 55274.
    LAKE COUNTY FOREST PRESERVE DISTRICT, Appellant, v. VERNON HILLS DEVELOPMENT CORPORATION, Appellee.

      Opinion filed September 17, 1982.

      Donald T. Morrison & Associates, P.C., of Waukegan (Donald T. Morrison, of counsel), for appellant.
    Rothschild, Barry & Myers, of Chicago (William G. Myers, of counsel), for appellee.
   JUSTICE WARD

delivered the opinion of the court:

On July 5, 1974, the Lake County Forest Preserve District (District) filed a condemnation action against real property owned by the defendant, Vernon Hills Development Corporation (corporation). A jury returned a verdict on December 1, 1978, finding just compensation for the taking of the property to be $450,000, and the circuit court of Lake County entered judgment on the verdict on December 6, 1978. Under the judgment order, fee simple title was to vest in the District upon payment, within 90 days, of the judgment award, plus the defendant’s costs of $13 and interest pursuant to section 3 of the Interest Act (Ill. Rev. Stat., 1978 Supp., ch. 74, par. 3) until the date of deposit of the award with the Lake County treasurer. On December 26, 1978, the corporation filed a post-trial motion for a new trial. The motion was denied, and on February 13, 1979, the corporation filed a notice of appeal claiming the award was inadequate. The appellate court affirmed the judgment of the circuit court of Lake County on June 17, 1980. Lake County Forest Preserve District v. Vernon Hills Devel opment Corp. (1980), 85 Ill. App. 3d 241.

On July 30, 1980, the District deposited with the treasurer of Lake County the sum of $455,560.75, representing the judgment amount plus interest from the date of the verdict to the date the notice of appeal was filed, plus the defendant’s costs of $13. The corporation, on September 3, 1980, filed an “Application for Withdrawal of Condemnation Award and Motion for Order Directing Plaintiff to Pay Additional Interest.” The motion requested $38,822.81 of additional interest to cover the period from the filing of the notice of appeal until the date the District made the deposit. (It was later agreed that, if interest had accrued during this period, the correct amount of interest would be $39,426.01.) The motion further sought an order directing the District to pay $73.97, representing interest on the amount of the verdict, for each day after July 30, 1978, the date of the District’s deposit, until the entire amount due and owing had been satisfied. On September 10, 1980, the trial court allowed the corporation’s application to withdraw the sum deposited by the District on July 30, 1980, without prejudice to any claims for interest. The trial court also ordered the District to pay additional interest to cover the period of “the pendency of appeal,” i.e., the time between the filing of the notice of appeal and the affirmance by the appellate court. On September 12, 1980, the District deposited an additional $39,426.01 with the treasurer of Lake County to cover interest from February 13, 1979, the date of the filing of the corporation’s notice of appeal, to July 30, 1980, when the District deposited $455,560.75.

On October 1, 1980, the corporation renewed its motion for additional interest of $73.97 per day for the period from July 30, 1980, until September 10, 1980. The latter date was the date the trial court allowed the corporation to withdraw the original deposit without prejudice to its claim for interest. (No claim was made with respect to the two days from September 10 to September 12, 1980.) The trial court denied the corporation’s motion on October 1,1980.

On October 9, 1980, the District filed a notice of appeal from the September 10, 1980, judgment requiring it to pay interest on the award during the pendency of the appeal. On October 30, 1980, the corporation cross-appealed from the trial court’s October 1, 1980, judgment denying its motion for the allowance of interest from July 30, 1980, to September 10, 1980. The appellate court affirmed that part of the judgment of the circuit court consisting of its September 10, 1980, order requiring the District to pay interest on the award to cover the period during the corporation’s unsuccessful appeal, reversed that part of the judgment of the circuit court denying the corporation’s motion for interest from July 30, 1980, to September 10, 1980, and remanded the cause with directions to enter judgment consistent with its opinion. (96 Ill. App. 3d 689.) We allowed the Lake County Forest Preserve District’s petition for leave to appeal. 73 Ill. 2d R. 315.

The principal question on this appeal is whether section 3 of the Interest Act entitles a condemnee to post-judgment interest during the pendency of an unsuccessful appeal of a condemnation judgment where, as here, the condemnee retains possession of the land during the time of appeal. On the date judgment was entered here, section 3 of the Interest Act provided:

“Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of appeal, or other steps to reverse, vacate or modify the judgment.” Ill. Rev. Stat., 1978 Supp., ch. 74, par. 3.

The first two sentences of the section have been virtually unchanged since the Interest Act was enacted in 1879. The third sentence was added in 1955. Ill. Ann. Stat., ch. 74, par. 3, Historical Note, at 48 (Smith-Hurd 1966).

In Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, which involved a judgment under the Federal Employers’ Liability Act, this court noted that, prior to the 1955 amendment to section 3, “the appellate courts of this State were unanimous in holding an appealing judgment creditor was not entitled to interest on his judgment pending disposition of the appeal, since the delay in payment thereof was either wholly or partly occasioned by his action in appealing or cross-appealing. [Citations.] This rule has recently been criticized for its inequities [citation] for the reason that it deprives an unsuccessful appealing judgment creditor of the interim use of the money due on a judgment when, by virtue of such unsuccessful appeal, the propriety of the original judgment, as here, is affirmed.” (31 Ill. 2d 518, 522.) The court held that it was the legislative intendment, when it provided through the 1955 amendment “a way by which [a judgment debtor] could stop the accrual of interest under the statute where the judgment creditor prosecutes an appeal,” that a judgment creditor should be given a statutory right to interest pending his appeal if the judgment debtor did not tender payment. 31 Ill. 2d 518, 524. See also First National Bank & Trust Co. v. Aluminum Coil Anodizing Corp. (1980), 86 Ill. App. 3d 842.

The District does not quarrel with the holding in Pink- staff, but it argues that Pinkstaff is not applicable to proceedings under the Eminent Domain Act if the landowner remains in possession pending his appeal. This should be so, it says, because the condemnee is not injured until possession of his property has been taken by the condemnor. The contention cannot be accepted. This court has held, both prior to 1955 and thereafter, that section 3 of the Interest Act applies to condemnation judgments in eminent domain proceedings. (Department of Conservation v. Jones (1979), 75 Ill. 2d 557; Department of Public Works & Buildings v. Larson (1961), 22 Ill. 2d 425; Chapralis v. City of Chicago (1945), 389 Ill. 269; Commissioners of Lincoln Park v. Schmidt (1942), 379 Ill. 130; Epling v. Dickson (1897), 170 Ill. 329.) The only exception to this is when land is taken by a condemning body under the “quick-take” provisions of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, pars. 2.1 through 2.10). (Department of Public Works & Buildings v. Larson (1961), 22 Ill. 2d 425.) Significantly, so far as the District’s contention is concerned, the legislature did not make any other exceptions to the applicability of section 3 in eminent domain proceedings.

This court has given convincing reasons for rejecting the District’s contention:

“The time of filing a petition to condemn is wholly without the control of the owner who, immediately upon the filing of the petition, no longer has the freedom to deal with the property as an owner in fee simple. He has no assurance that the case will proceed to trial and judgment in the year in which the petition is filed or within several years thereafter; he has no assurance that, when an award by a jury is made and judgment entered thereon, the condemning agency will pay the award within a reasonable time. (Ill. Rev. Stat. 1961, ch. 47, par. 10.) In other words, between the time of filing the petition and the time the award is actually paid by the condemnor, the owner of real estate cannot enter into long term leases, make improvements, or even maintain the property with hope of reimbursement, and certainly cannot sell it excepting subject to the proceedings then pending.
The mere filing of a petition to condemn effectively encumbers the land, imposing a burden upon it, impeding its transfer, and to that extent destroying the fee simple estate of the owner.” (Public Building Com. v. Continental Illinois National Bank & Trust Co. (1964), 30 Ill. 2d 115, 121-22.)

A condemnee obviously sustains a very real and substantial interference with his property rights whenever a petition to condemn is filed. That interference persists even though he remains in possession during the appeal. A condemnee, it should be noted, would be discouraged from exercising his right to appeal from the condemnation judgment if the right to interest pending appeal would be defeated in the event he loses the appeal.

That the corporation retained possession of the property pending its appeal did not operate to frustrate the District. Section 13 of the Eminent Domain Act (Ill. Rev. Stat. 1977, ch. 47, par. 13) provides a condemnor with the right to take possession and use the property during the condemnee’s appeal by posting a bond. Since the District did not exercise this right, it can hardly complain that the corporation retained possession of the property during the pendency of its appeal.

Since section 3 of the Interest Act is applicable to eminent domain proceedings, except for those under the “quick-take” provisions, we examine the wording of the statute to determine what effect it has here. The second sentence of section 3 requires that, on the date of the judgment, interest at the rate of 6% per annum shall be computed on the amount of the jury verdict from the date the verdict was rendered, December 1, 1978, until the date judgment was entered on the verdict, December 6, 1978. That part of section 3 also states that the interest so computed shall be made a part of the judgment. Thus, the judgment award is the amount of the verdict plus interest as computed above. The first sentence of section 3 then provides that interest at the rate of 6% per annum is to be calculated on the judgment award (the sum of the verdict amount and interest from the date of the verdict to the date of judgment) from the date of the judgment until the total amount due and owing is satisfied.

The District’s deposit of $455,560.75 on July 30, 1980, included interest only from the date of the verdict to the date the corporation’s notice of appeal was filed. The corporation argued on cross-appeal that, since the July 30, 1980, deposit did not include interest for the period from the date the notice of appeal was filed until the date of deposit with the Lake County treasurer, interest on the entire judgment award continued to accrue until the District’s second deposit on September 12, 1980. The District contends here that, if the corporation is entitled to any interest for the period between the first and second deposits, it is not for interest on the amount of the award but only for interest on the $39,426.01 of interest that accrued between the date the corporation filed its notice of appeal and the date of the District’s $455,560.75 deposit.

The 1955 amendment to section 3 of the Interest Act provides the method whereby a judgment debtor can stop the further accrual of interest on the judgment. This can be accomplished only by tendering “payment of judgment, costs and interest accrued to date of tender.” In Pinkstaff we quoted with approval the following language from River Valley Cartage Co. v. Hawkeye-Security Insurance Co. (1959), 17 Ill. 2d 242, 246: “ ‘A valid tender by the debtor must be “sufficient to cover all that the creditor then has a right to recover whether of debt, interest or costs. If he tenders less, then the tender is not good ***.” Sweetland v. Tuthill (1870), 54 Ill. 215, 216.’ ” (Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 526; see also Thomas v. Missouri-Illinois R.R. Co. (1975), 30 Ill. App. 3d 40.) Since the District’s July 30, 1980, deposit did not include the total interest the corporation was owed on that date, interest on the judgment award continued to accrue until September 12, 1980. That is, the District’s tender on July 30, 1980, did not include interest for the period from the filing of the notice of appeal to the date of tender. Through inadvertence or otherwise, the corporation has not sought to recover additional interest for the two-day period between September 10,1980, and September 12,1980.

For the reasons given, the judgment of the appellate court is affirmed and the cause is remanded to the circuit court of Lake County for the entry of judgment consistent with this opinion.

Affirmed and remanded, with directions.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 55843.
    MELVIN E. LEVY et al., Appellants, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Appellee.

      Opinion filed September 17, 1982.

      SIMON, J., took no part.
    Roger L. Price and Michael G. Berland, of Aaron, Schimberg, Hess, Rusnak, Deutsch & Gilbert, of Chicago, for appellants.
    Allen S. Lavin, of Chicago (James B. Murray and Jack L. Shankman, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Two separate class actions were filed in the circuit court of Cook County against defendant, the Metropolitan Sanitary District of Greater Chicago, alleging, inter alia, that defendant had negligently distributed under the name of Nu-Earth, for use in residential gardens, a sludge-derived fertilizer and soil conditioner which contained dangerous levels of cadmium. One action was brought by Melvin E. Levy and the other by Dino Raffaelli and Theresa Raffaelli, in each instance in their own behalf and “on behalf of all other persons similarly situated.” The circuit court allowed defendant’s motions to dismiss the class action allegations of the complaints. Although the circuit court had previously entered an order consolidating the causes “for trial,” separate orders of dismissal were entered. Each order of dismissal provided, pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), that “there is no just reason to delay enforcement or appeal.” Plaintiffs appealed, and the appellate court, sua sponte, consolidated the causes and then dismissed the appeals on the ground that there was no final appealable order. (100 Ill. App. 3d 714.) We allowed plaintiff Levy’s petition for leave to appeal.

Citing Hayna v. Arby’s, Inc. (1980), 99 Ill. App. 3d 700, Daar v. Yellow Cab Co. (1967), 67 Cal. 2d 695, 433 P.2d 732, 63 Cal. Rptr. 724, Bell v. Beneficial Consumer Discount Co. (1975), 465 Pa. 225, 348 A.2d 734, and Roemisch v. Mutual of Omaha Insurance Co. (1974), 39 Ohio St. 2d 119, 314 N.E.2d 386, plaintiff contends that the dismissal of the class allegations in plaintiff’s amended complaint foreclosed judgment for or against the class, and is therefore final and reviewable as is any other final order.

It is defendant’s position that the decision of the appellate court is consistent with our opinion in Getto v. City of Chicago (1981), 86 Ill. 2d 39, and that the appeal was properly dismissed.

Plaintiff argues that a distinction must be drawn between an order denying the certification of a class and an order which effects the dismissal of plaintiff’s class action allegations. He concedes that the denial of certification is not an appealable order immediately reviewable pursuant to Supreme Court Rule 304 but contends that because the dismissal of the class action allegations determines the action it is a final and appealable order. The appellate court in Hayna v. Arby’s, Inc. (1980), 99 Ill. App. 3d 700, held that dismissal of class allegations was a final order appealable pursuant to Supreme Court Rule 304(a). The Hayna court distinguished Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill. App. 3d 1071, on the ground that the order denying class certification in that case was subject to amendment prior to a decision on the merits, whereas the order in Hayna terminated the class action aspects of the case.

Other jurisdictions have differed on whether an order granting or denying class status is final. (See Annot., 54 A.L.R.3d 595 (1974).) Until the Supreme Court’s opinion in Coopers & Lybrand v. Livesay (1978), 437 U.S. 463, 57 L. Ed. 2d 351, 98 S. Ct. 2454, there was a conflict in the Federal circuits. Livesay held that orders entered prior to the termination of the litigation granting or denying class status may be appealed only under the interlocutory appeals act. (28 U.S.C. sec. 1292 (1976).) There is nothing in the opinion to indicate that a distinction is made between an order denying certification or decertifying a class and an order dismissing the class action allegations of a complaint.

We agree with the appellate court that neither an order denying class certification or decertifying a class nor an order dismissing class action allegations is final and that such orders “may be appealed from prior to the termination of the litigation only under the interlocutory appeal provisions of the Supreme Court Rules.” (100 Ill. App. 3d 714, 718.) We have considered the rationale of Hayna, but we find no impediment to the circuit court’s changing or amending an order of dismissal of the class action aspects of a cause in the same manner as an order denying or decertifying a class. Furthermore, an order of dismissal can be as effectively reviewed on appeal from the final judgment as can orders denying certification or decertifying a class.

The procedural rules governing class actions and interlocutory appeals in Illinois are patterned on comparable Federal rules. (Getto v. City of Chicago (1981), 86 Ill. 2d 39.) Our holding here conforms the appellate practice of this jurisdiction to the Federal rules and is consistent with Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583.

For the reasons stated we affirm the judgment of the appellate court dismissing the appeal. Because of the uncertainty resulting from the conflicting decisions of the appellate court concerning whether an appeal lay under the provisions of Rule 304(a) or under Rule 308(a) (73 Ill. 2d R. 308(a)), the cause is remanded to the circuit court of Cook County with directions to consider its order in the light of Rule 308(a) and for further proceedings consistent with this opinion.

Affirmed and remanded, with directions.

JUSTICE SIMON took no part in the consideration or decision of this case.


author: JUSTICE UNDERWOOD

text:
    (No. 55429.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES EDWARD BAKER, Appellee.

      Opinion filed September 17, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Herbert Lee Caplan, Melbourne A. Noel, Jr., Ronald Lee Bell, and Michael B. Weinstein, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Daniel D. Yuhas, Deputy Defender, and Janet Sinder, Assistant Defender, of the Office of the State Appellate Defender, of Springfield, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, James Baker, waived counsel and entered a plea of guilty on October 8, 1975, in the circuit court of Clark County to an information charging him with murder. He was sentenced to an indeterminate term of 30 years to life imprisonment. Four years later, he filed a pro se petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122—1 et seq.). An amended petition was subsequently filed by his court-appointed counsel alleging that defendant was deprived of his right to counsel at his sentencing hearing. Following a hearing and argument, the trial court granted the State’s motion to dismiss the petitions. The appellate court reversed and remanded (98 Ill. App. 3d 71), and we allowed the State’s petition for leave to appeal.

Defendant was arrested on September 29, 1975, in Terre Haute, Indiana, his place of residence, and charged with the murder of the 70-year old victim, Everett Liwix. At his first court appearance on September 30, 1975, he appeared without counsel and was apprised by the court of the nature of the charge against him and the minimum and maximum sentences which could be imposed upon conviction. He was further advised that he had a constitutional right to counsel at every stage of the proceedings, and that, if he could not afford an attorney, one would be appointed for him. Defendant stated that he did not want an attorney. The court asked him whether he would consent to the appointment of counsel for consultation before he decided to waive an attorney. Defendant agreed, and the matter was continued for arraignment.

Defendant appeared before the court for arraignment on October 8, 1975, with Jack Asher, the court-appointed attorney. The court again advised defendant of the nature of the charge against him, the minimum and maximum sentence to which he could be subjected upon conviction, and that he had a constitutional right to be represented by counsel at all stages of the proceedings. Defendant again stated that he wished to waive counsel. Mr. Asher informed the court that he had talked with defendant at length on three separate occasions and detailed for the court the nature of his consultations, which included, among other things, a thorough explanation to the defendant of his constitutional rights, the nature of the preliminary proceedings, the trial itself, and the presentence investigation and sentencing hearing in the event of a conviction. The attorney stated that he had continually advised defendant that he believed defendant needed the advice of counsel and urged him not to persist in his waiver, but that defendant wished to proceed without counsel. In response to the court’s question, defendant stated that he was satisfied with the consultations and services of Mr. Asher. Once again the court asked him whether he wished to proceed without counsel. He stated that he did, and the court accepted the waiver. Defendant then entered his plea of guilty. Before accepting the plea, the court admonished defendant in accordance with our Rule 402 (73 Ill. 2d R. 402) and again advised him that he had a right to counsel at all stages of the proceedings. The court thereafter found that the plea was voluntary and defendant understood its consequences.

The prosecutor subsequently related the factual basis for the plea, indicating that defendant and another had surreptitiously shot and butchered a steer belonging to a farmer near the farm they were visiting. The decedent, a neighboring farmer, came along as they were carrying the hind quarters away. Defendant pursued decedent, shot him through the chest at close range with a shotgun, and then reloaded and fired again with the gun next to decedent’s temple. The shotgun used to kill the victim and the rifle used to kill the steer were thrown in the Wabash River later that day.

Following the prosecutor’s recitation, the trial judge asked defendant whether it was accurate. He responded that the prosecutor made it sound “juicy” and that although part of it was true, he had previously made a statement that the victim had a pistol and shot at him three times. The record indicates there was no factual basis for that contention. The judge asked defendant whether he wished to raise a defense, in which case the court would strike the plea and allow him to plead not guilty. The defendant stated that he was not intending to raise a defense, nor did he wish to withdraw his plea of guilty. Mr. Asher explained to the court that defendant was not trying to interpose a plea of self-defense; rather, he wanted to advise the court that it was his contention that the victim had a gun which was believed to be a mitigating factor. The court again asked defendant whether he wished to persist in his plea of guilty or whether he wanted to interpose a defense. Defendant repeatedly answered that he did not want to withdraw his plea, nor was he trying to plead self-defense. At one point during the extended colloquy the defendant made the statement, “I’ve already waived the right for counsel, so I just plead guilty.” The court eventually accepted the plea of guilty and found that it had a factual basis.

Defendant subsequently appeared for sentencing on October 21, 1975, indicated he did not wish to make a statement in his own behalf, and was sentenced to a term of 30 years to life imprisonment, the trial judge commenting that the crime was about as senseless and cold blooded as one can imagine. No question is now raised concerning the factual basis for the plea of guilty or the possibility of a defense.

Defendant argues, relying primarily upon language in People v. Hessenauer (1970), 45 Ill. 2d 63, that he is entitled to a new sentencing hearing because he was not again advised by the court at his sentencing hearing of his right to counsel. The appellate court, noting that the opinions of that court were in conflict, agreed. 98 Ill. App. 3d 71; compare People v. Taylor (4th Dist. 1975), 31 Ill. App. 3d 987, and People v. Miles (5th Dist. 1974), 20 Ill. App. 3d 131 (holding that a valid waiver of counsel at an early stage of the proceeding does not continue in effect through a subsequent stage), with People v. Kious (5th Dist. 1979), 77 Ill. App. 3d 1005; People v. McCaffrey (2d Dist. 1975), 29 Ill. App. 3d 1088, overruling People v. Hinkle (2d Dist. 1971), 1 Ill. App. 3d 202; and People v. Bobo (3d Dist. 1975), 33 Ill. App. 3d 274 (holding that a waiver of counsel, once made and not retracted, is operative throughout the proceedings).

In Hessenauer this court considered whether the defendant was denied the assistance of counsel at his arraignment at which he pleaded guilty. The trial court had granted defendant’s request for appointed counsel when he appeared for a preliminary hearing; however, when the defendant subsequently appeared pro se for his arraignment and entered his plea of guilty, the judge made no inquiry concerning the absence of the attorney (who had never in fact consulted with defendant), nor did he ask defendant whether he wished to proceed without counsel. It was in that context that this court made the statement upon which defendant relies: “A finding of waiver will not be made unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel.” (45 Ill. 2d 63, 68.) Unlike the factual setting in Hessenauer, the issue presented here is whether defendant’s competent waiver of counsel at his arraignment, after being advised that he had a constitutional right to the representation of appointed counsel at every stage of the proceedings, was operative at the time of sentencing. On this record, we believe that it was.

While it is now well established that a defendant has a constitutional right to be represented by counsel “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected” (Mempa v. Rhay (1967), 389 U.S. 128, 134, 19 L. Ed. 2d 336, 340, 88 S. Ct. 254, 257), and that sentencing is one such stage (Gagnon v. Scarpelli (1973), 411 U.S. 778, 781, 36 L. Ed. 2d 656, 661, 93 S. Ct. 1756, 1759; McConnell v. Rhay (1968), 393 U.S. 2, 21 L. Ed. 2d 2, 89 S. Ct. 32; Mempa v. Rhay (1967), 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254), a defendant has a correlative constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525; see also People v. Sinko (1960), 21 Ill. 2d 23, 26). Thus, a defendant may competently waive counsel if such an election is voluntary and constitutes “a knowing and intelligent relinquishment or abandonment of a known right or privilege.” Edwards v. Arizona (1981), 451 U.S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1883; Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023; People v. Johnson (1979), 75 Ill. 2d 180, 187.

Defendant was advised numerous times before entering his plea of guilty that he had a constitutional right to appointed counsel at all stages of the proceedings. He could have competently waived appointed counsel without ever consulting with an attorney. (People v. Bush (1965), 32 Ill. 2d 484, 488.) Nevertheless, considering the seriousness of the offense, the trial judge, with defendant’s consent and prior to accepting the waiver, appointed an attorney to further advise defendant and to allow him time to consider the consequences of waiving counsel. After three lengthy consultations with the court-appointed attorney who repeatedly urged defendant not to persist in his waiver of counsel, defendant appeared for arraignment, expressed his understanding of his rights and the offense with which he was charged, and insisted on proceeding pro se. The record clearly establishes that his election to do so was voluntarily, knowingly and under standingly made. Under these circumstances, we do not believe the trial judge was required to renew the offer of counsel or ascertain whether defendant had changed his mind when he appeared for sentencing two weeks later.

The greater number of courts considering the precise issue here presented have held that a competent waiver of counsel by a defendant once made before the court carries forward to all subsequent proceedings unless defendant later requests counsel or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings. State v. Carpenter (La. 1980), 390 So. 2d 1296, 1299; State v. Harig (1974), 192 Neb. 49, 59, 218 N.W.2d 884, 890-91, reaffirmed, State v. Tiff (1977), 199 Neb. 519, 531-32, 260 N.W.2d 296, 303; State v. Steed (1973), 109 Ariz. 137, 139, 506 P.2d 1031, 1033; State v. Mathis (1968), 39 Wis. 2d 453, 459, 159 N.W.2d 729, 732; Hodge v. United States (9th Cir. 1969) (en banc), 414 F.2d 1040, 1044; Arnold v. United States (9th Cir. 1969), 414 F.2d 1056, 1059, cert. denied (1970), 396 U.S. 1021, 24 L. Ed. 2d 514, 90 S. Ct. 593; Panagos v. United States (10th Cir. 1963), 324 F.2d 764, 765; Davis v. United States (8th Cir. 1955), 226 F.2d 834, cert. denied (1956), 351 U.S. 912, 100 L. Ed. 1446, 76 S. Ct. 706; see also United States v. Washington (3d Cir. 1965), 341 F.2d 277, 286; State v. Enright (1967), 108 N.H. 227, 231 A.2d 628. Cf. Chessman v. Teets (1957), 354 U.S. 156, 1 L. Ed. 2d 1253, 77 S. Ct. 1127 (ex parte settlement of State court record in a capital case violated petitioner’s constitutional right to due process; if the State chose to deny petitioner’s request to appear in those proceedings in propria persona, it was incumbent on the State to appoint counsel for him notwithstanding the prior waiver of counsel at trial where petitioner represented himself); Kuehnert v. Turner (1972), 28 Utah 2d 150, 499 P.2d 839 (petitioner’s right to counsel at sentencing was violated when he appeared pro se and the trial judge made no inquiry concerning the absence of counsel who had represented petitioner at the time the plea of guilty was entered); In re Haro (1969), 71 Cal. 2d 1021, 1028-29, 458 P.2d 500, 505-06, 80 Cal. Rptr. 588, 593 (respondent’s misdemeanor conviction was improperly used to enhance sentence on subsequent conviction where the record showed that at the time respondent changed his plea to guilty and received his misdemeanor sentence, he was not represented by the previously appointed counsel and the court did not ask him whether he nevertheless wished to proceed without counsel); Schell v. United States (7th Cir. 1970), 423 F.2d 101, 103 (defendant’s waiver of counsel in March when he pleaded guilty was not effective at September sentencing because of the lapse of six months between the hearings, a change in posture of the case due to events in the interim and questions concerning the validity of the March plea).

In Davis v. United States (8th Cir. 1955), 226 F.2d 834, a case subsequently relied upon in many of the reported decisions, the court considered a factual situation similar to that presented here. The court found that the defendant had competently, intelligently, and understandingly waived his right to counsel at his arraignment. While recognizing that defendant had a right to counsel at sentencing, the court stated:

“It would be straining human credulity to say that [defendant] did not possess the same knowledge and intelligence four days later on June 7th. The sentencing of Davis on June 7th was but an extension of the arraignment proceedings. It could have followed immediately and no question could have been raised as to its propriety. Undoubtedly the trial judge, in deferring sentence until June 7th, did so in order that he could receive a presentence report from the probation officer. The fact that the sentencing took place four days after the arraignment could create a need for further inquiry only if something transpired in the interim which justified such further inquiry, such as a request by Davis for counsel and advice when he appeared for sentencing. Davis made no request and made no statement, and accordingly Judge Joyce was entirely justified in taking his prior refusal of counsel as ‘definite’. There was indeed an implied waiver of counsel as to any proceedings subsequent to June 3, 1935. If this were not true, it would mean that in all criminal proceedings where the defendant competently waived the right to counsel and nothing happened in the meantime, such as an unreasonable lapse of time, newly discovered evidence which might require or justify advice of counsel, new charges brought, a request from the defendant, or similar circumstances, he would nevertheless have to be interrogated in the same fashion on each subsequent step therein. That would be neither good law nor good sense.” 226 F.2d 834, 840.

This court’s decision in People v. Barker (1975), 62 Ill. 2d 57, which is not cited by either party here, does not compel a different result. The defendant there had pleaded guilty to the offense of theft over $150 and was placed on probation for three years. When he subsequently appeared before the court for an arraignment hearing on a petition to revoke his probation, he was not advised of either the nature of the charges contained in the petition to revoke or the minimum and maximum sentences prescribed for the original offense. (See People v. Barker (1974), 23 Ill. App. 3d 598, 601.) He waived counsel and later appeared for a contested hearing, at which time his probation was revoked and a sentence of not less than three years and four months and not more than 10 years was imposed. The appellate court reversed and remanded, holding that the circuit court’s failure to admonish defendant in accordance with Supreme Court Rule 401(a) (50 Ill. 2d R. 401(a)) rendered the waiver of counsel invalid because such admonitions were necessary in order to ascertain whether the waiver was “knowingly and understandingly” entered. (23 Ill. App. 3d 598, 601.) This court affirmed the appellate court, holding that a waiver of counsel at a probation revocation proceeding should not be approved unless the record shows that the offender knowingly and understandingly rejected an offer of appointed counsel. The court concluded that the record failed to show a knowing and understanding waiver, and set forth the appropriate standard, commensurate with that contained in Rule 401(a), which would henceforth be applied to determine whether an offender has competently waived counsel at a probation revocation proceeding.

In contrast to Barker, the record here shows that defendant was fully admonished in accordance with Rule 401 at his arraignment, and that he competently waived the right to counsel after being advised that this right attached at all stages of the proceedings. In the absence of some circumstances indicating that the waiver is limited, or other facts which would give the trial court reason to conduct a further inquiry, we hold, consistent with the weight of authority, that a competent waiver of counsel at arraignment by a defendant who is advised that he has a constitutional right to counsel at all stages of the proceedings is operative at the time of sentencing.

Defendant further argues that his sentence of 30 years to life imprisonment must be vacated because a term of life imprisonment was not a possible sentence at the time it was imposed. (Ill. Rev. Stat. 1975, ch. 38, par. 1005—8— 1.) The appellate court found that such a sentence was authorized under the 1975 sentencing scheme, after initially noting that the point had been waived since it was not raised in defendant’s post-conviction petitions and, in any event, was not an issue cognizable under the Post-Conviction Hearing Act because it is not of constitutional magnitude. (98 Ill. App. 3d 71, 75.) Because the issue is not of constitutional stature (People v. Seidler (1974), 18 Ill. App. 3d 705) and was not raised in either of the post-conviction petitions, we will not now consider it. Ill. Rev. Stat. 1979, ch. 38, par. 122—3; People v. Brouhard (1972), 53 Ill. 2d 109, 114; People v. French (1970), 46 Ill. 2d 104, 108.

For the reasons stated, the judgment of the appellate court is reversed. The judgment of the circuit court of Clark County dismissing defendant’s petitions for post-conviction relief is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 55591.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CHARLES E. CLARK, Appellee.

      Opinion filed September 17, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and L. Patrick Power, State’s Attorney, of Kankakee (Michael B. Weinstein, Michael V. Accettura, and Melbourne A. Noel, Jr., Assistant Attorneys General, of Springfield, and John X. Breslin, Deputy Director of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli and Thomas A. Lilien, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a stipulated bench trial in the circuit court of Kankakee County, defendant, Charles E. Clark, was convicted of the offense of possession of cannabis (Ill. Rev. Stat. 1979, ch. 561/2 par. 704(d)). He was fined $300 and sentenced to 18 months’ probation. The appellate court reversed the judgment and remanded for a new trial (98 Ill. App. 3d 405), and we allowed the People’s petition for leave to appeal (73 Ill. 2d R. 315).

The facts are adequately stated in the appellate court opinion and will be reviewed here only to the extent necessary to discuss the issue presented. At the hearing on defendant’s motion to suppress, Kankakee County Deputy Sheriff Donald Eckels testified that while on patrol he observed an automobile with only one taillight. He activated his red lights to stop it and at that time saw that the automobile was swerving from lane to lane. When the automobile stopped, defendant was found to be the sole occupant. Eckels approached the car and asked defendant to show his driver’s license. Defendant opened the automobile door and upon leaving the automobile stood next to the open door. Eckels looked into the automobile and observed a green leafy substance which he believed to be cannabis on the floor on the driver’s side. He searched the vehicle and on the middle of the front seat discovered an open cigarette box containing cannabis. He then took the keys from the ignition, opened the locked glove compartment, and found three bags of a substance he believed to be cannabis. He thereupon arrested defendant, patted him down, and took him to the police station. On the way to the station defendant informed Eckels that he had two more bags of cannabis in his coat pocket which he would turn over at the station.

Defendant denied that there was any cannabis on the floor of the automobile. He admitted that there was a cigarette box containing rolled cannabis above the visor in the car. He turned over two bags of cannabis to the deputy but, except for the arrest, would not have done so.

Although the appellate court recognized the exception to the requirement for a search warrant when the officer has probable cause to believe that the automobile contains contraband (Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280), it found there was no showing of probable cause. Holding that the circuit court erred in denying defendant’s motion to suppress all cannabis discovered in the search of defendant’s automobile and the two bags of cannabis which admittedly were in his possession at the time of his arrest, the appellate court reversed the judgment and remanded for a new trial.

Relying primarily on New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, the People contend that the search of defendant’s vehicle was valid. They argue that although defendant was not arrested until after the search was completed, the search was made incident to the arrest, and that the officer was therefore permitted, contemporaneous to the arrest, to search the entire passenger area of the automobile, including the glove compartment. Alternatively they argue that the search was justified under the exception to the warrant requirement which permits a warrantless search of a vehicle where there is probable cause to believe that the vehicle contains contraband or the evidence of a crime. It is defendant’s position that neither exception applies because at the time that the search was made there was neither probable cause to arrest nor probable cause to believe that the vehicle contained contraband.

On review, the ruling of the circuit court on defendant’s motion to suppress should not be set aside unless it is found to be clearly erroneous. (People v. Conner (1979), 78 Ill. 2d 525, 532; People v. Clay (1973), 55 Ill. 2d 501, 505.) Although the circuit court did not state its reasons for the denial of defendant’s motion to suppress, it is apparent that the court found the testimony of the officer more credible than that of defendant. We find no ground on which to reject the officer’s testimony as clearly unreasonable, and thus we need only determine whether, as a matter of law, his testimony satisfies the requirements for a valid warrantless search. See People v. DeMorrow (1974), 59 Ill. 2d 352, 358-59; People v. Clay (1973), 55 Ill. 2d 501; People v. Haskell (1968), 41 Ill. 2d 25, 30.

It is well recognized that a warrantless search of an automobile may be permissible where the searching officer has probable cause to believe that the vehicle contains contraband. (See United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42; Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) To establish probable cause to search it must be shown that the totality of the facts and circumstances known to the officer at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (United States v. Ross (1982), 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157; Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280.) We believe the circuit court properly concluded that the evidence presented here supported the officer’s determination of probable cause to search defendant’s vehicle. There is no indication that the traffic stop was a pretext to search since there is no evidence showing that the officer’s initial decision to stop defendant’s vehicle was for any reason other than a traffic violation. Standing outside the vehicle, the officer observed what appeared to him to be cannabis leaves and seeds on the floor in front of the driver’s seat. He found an open cigarette box containing what appeared to be cannabis in the middle of the front seat. He then took the keys out of the ignition and opened the locked glove compartment, where he found three bags of a substance he believed to be cannabis. As stated recently in United States v. Ross (1982), 456 U.S. 798, 824, 72 L. Ed. 2d 572, 593, 102 S. Ct. 2157, 2172:

“The scope of a warrantless search of an automobile *** is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”

(See also New York v. Belton (1981), 453 U.S. 454, 460-61 n.4, 69 L. Ed. 2d 768, 775 n.4, 101 S. Ct. 2860, 2864 n.4.) Considering the circumstances it was not unreasonable for the officer to believe that cannabis would be found in the glove compartment, and his action in taking the keys from the ignition to unlock the glove compartment did not invalidate the search. Because we hold the officer’s warrantless search of the automobile was justified by his reasonable belief that the vehicle contained cannabis, we need not consider whether the search was validly conducted incident to defendant’s arrest subsequent to the search. We cannot say that the circuit court erred in denying defendant’s motion to suppress the evidence.

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

Appellate court reversed; circuit court affirmed.


author: CHIEF JUSTICE RYAN

text:
    (No. 55764.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID B. REIMOLDS, Appellant.

      Opinion filed September 17, 1982.

      Craig Collins, of Barash, Stoerzbach & Henson, of Galesburg, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield, and Warren T. McNeill, State’s Attorney, of Monmouth (Michael B. Weinstein and Val Gunnarsson, Assistant Attorneys General, of counsel), for the People.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This case involves the dismissal of the charge against a defendant for failure to bring the defendant to trial within 160 days as required by section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 103—5(b), 114—1(a)(1)).

Section 103 — 5(b) of the statute provides:

“Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.’’ (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 103—5(b).)

The statutory remedy for failure to comply with this requirement is dismissal (Ill. Rev. Stat. 1979, ch. 38, par. 114—1(a)(1)), and the Code of Criminal Procedure provides for a hearing when an issue of fact is presented by the motion to dismiss and the answer of the State. Ill. Rev. Stat. 1979, ch. 38, par. 114-1(d).

In the instant case, defendant, David B. Reimolds, was charged by information with armed robbery in the circuit court of Warren County on November 13, 1979. (Ill. Rev. Stat. 1979, ch. 38, par. 18—2(a).) On November 21, 1979, defendant filed a demand for a speedy trial. On February 6, 1980, a pretrial conference was held at which the State indicated an intention to file a motion to consolidate the instant case with the cases of two other defendants. The court directed that the motion be filed by February 15,

1980. However, the State’s motion to join related prosecutions was not filed until March 20,1980.

On April 15, 1980, defendant Reimolds filed an objection to the proposed joinder of other defendants on the ground, inter alia, that “ [¡joining this cause with others for trial may result in delay, not only in actual trial itself, but also in the commencement of the trial.” The motion to join related prosecutions was, however, allowed.

On May 19, 1980, defendant Reimolds filed a motion to dismiss on the ground that he had not been brought to trial within 160 days. The motion was accompanied by an affidavit of defendant Retinoids’ attorney stating that “[a]t no time since the commencement of [this] cause has the defendant in person or by myself asked for or agreed to a continuance in this cause.” A hearing on the motion was held on that day.

On May 21, 1980, the trial court granted the motion to dismiss and in a memorandum opinion concluded:

“In a nutshell, he [defendant Reimolds] demanded a speedy trial, he took no action to delay his trial apparent on the record, he reiterated his concern for a speedy trial with approximately two weeks to run under the 160 day rule, and he did not receive one.
The Motion to Dismiss is accordingly granted.”

The State appealed the dismissal, and the appellate court, one justice dissenting, reversed and remanded for an evidentiary hearing to supplement the record. (100 Ill. App. 3d 598.) While noting that the record did not reflect any delay attributable to the defendant, the court nonetheless concluded that a question of fact which could not be resolved by the record had been raised by the attorney’s affidavit in support of the motion to dismiss and by the oral argument of the assistant State’s Attorney.

On appeal to this court, defendant argues that the hearing held on the motion to dismiss provided the State with an adequate opportunity to refute defendant’s speedy trial contentions and that remandment for an additional hearing amounts to an unnecessary expenditure of judicial time, talent and energy. In reply, the State argues that, although not reflected in the record, defendant agreed to continue the proceedings. Therefore, according to the State, it is necessary and proper to remand the cause for a supplementary hearing. The sole issue we are asked to decide, then, is whether a remandment for a supplementary hearing is proper where the record does not reflect delay attributable to the defendant and where there has already been a hearing on the motion to dismiss.

Initially, we note that section 103 — 5 of the Code of Criminal Procedure of 1963 implements the right to a speedy trial guaranteed by the Illinois Constitution. (People v. Morris (1954), 3 Ill. 2d 437.) Therefore, the statute is to be construed liberally, and each case is to be decided on its own facts. People v. Beyah (1977), 67 Ill. 2d 423, 427; People v. Fosdick (1967), 36 Ill. 2d 524, 528.

Under section 103 — 5, it is the duty of the State to bring a defendant to trial within the statutory period. (People v. Beyah (1977), 67 Ill. 2d 423, 427; People v. Bryarly (1961), 23 Ill. 2d 313, 319.) However, on a motion to dismiss, the defendant has the burden of affirmatively establishing the violation of his right to a speedy trial (People v. Jones (1965), 33 Ill. 2d 357, 361, cert. denied (1966), 385 U.S. 854, 17 L. Ed. 2d 81, 87 S. Ct. 99), and where a delay is attributable to the defendant, the statutory period is tolled. People v. Donalson (1976), 64 Ill. 2d 536, 540; People v. Gooding (1975), 61 Ill. 2d 298, 301.

A delay is held to be occasioned by the defendant when the defendant’s act in fact caused or contributed to the delay. (People v. Donalson (1976), 64 Ill. 2d 536, 541; People v. Nunnery (1973), 54 Ill. 2d 372, 376.) This affirmative act may be manifested as an express agreement to a continuance on the record. (People v. Cunningham (1979), 77 Ill. App. 3d 949, 952.) Delay will not, however, be presumed to be attributable to the defendant on the basis of a silent record. (People v. Jordan (1976), 44 Ill. App. 3d 101, 102; People v. Yates (1974), 17 Ill. App. 3d 765, 766.) Furthermore, mere silence on the part of the defendant or failure to object to the State’s request for a delay does not amount to an agreement or waiver of the right to a speedy trial by the defendant. People v. Cichanski (1980), 81 Ill. App. 3d 619, 622; People v. Burchfield (1978), 62 Ill. App. 3d 754, 756.

A court of review must determine the issues before it solely on the basis of the record made in the trial court. (People v. Jackson (1963), 28 Ill. 2d 37, 39; People v. Williams (1975), 27 Ill. App. 3d 778, 780.) In resolving whether a delay is attributable to the defendant, much deference must be given to the trial court’s judgment, especially where it is difficult to discern from the record which party is primarily responsible for the problem. (People v. Keagbine (1979), 77 Ill. App. 3d 1039, 1046, cert. denied (1980), 449 U.S. 951, 66 L. Ed. 2d 215, 101 S. Ct. 354.) The decision of the trial court as to accountability for delay in bringing the defendant to trial should be sustained, absent a clear showing of abuse of discretion. People v. Wilkins (1979), 77 Ill. App. 3d 179, 182.

In the instant case, the parties agree that the record does not show any affirmative act by the defendant which contributed to the actual delay of the trial, nor any motion for continuance by the defendant, nor any express agreement by the defendant to a continuance granted on the motion of either the State or the court. For any delay to be attributed to the defendant, therefore, it would be necessary for the State to present testimony of witnesses in support of its position that the statutory period had been tolled. This it did not do.

As indicated earlier, a hearing was, in fact, held on defendant’s motion to dismiss. At the hearing the assistant State’s Attorney argued:

“I would submit that it would be incumbent at that time to ascertain what was in Judge Evans’ mind, Judge Evans being the judge who pretried this case three times, when he made the docket entries. * * * I also think it is incumbent to have the clerk of the court to testify.”

The State presented no evidence and made no offer of proof; neither did it request a continuance in order to obtain a further opportunity to do so. Rather, at the conclusion of the hearing the assistant State’s Attorney told the court: “I am satisfied with what I have presented, Your Honor.”

Under these circumstances it is clear that the requirement of a hearing to resolve disputed issues on a motion to dismiss has been adequately met. To order another hearing at this point would only waste judicial resources and significantly dilute defendant’s statutory protections and constitutional guarantees.

There must be certainty and finality in litigation; that is, there must be a point at which the issues have been decided and the determination is final. The parties involved in litigation must make their case at the appropriate time allowed in the trial court and must stand or fall on review on the record thus made. A party should not be permitted to perfunctorily try his case in the trial court and if the court, on review, finds the record insufficient, he should not be given another opportunity to supplement it.

Accordingly, the judgment of the appellate court remanding this cause for a supplementary hearing is reversed and the decision of the circuit court dismissing the charge against defendant is affirmed.

Appellate court reversed; circuit court affirmed.


author: JUSTICE WARD

text:
    (No. 55240.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SCOTT WILLIAMS, Appellee.

      Opinion filed September 17, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Michael B. Weinstein, Ronald Lee Bell, Herbert Lee Caplan, Jr., and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, Phyllis J. Perko and Martin P. Moltz, of the State’s Attorneys Appellate Service Commission, of Elgin, of counsel), for appellant.
    Richard L. Salon, of Chicago, for appellee.
   JUSTICE WARD

delivered the opinion of the court:

Scott Williams, the defendant, was convicted following a jury trial in the circuit court of Du Page County of delivering less than 30 grams of a substance containing cocaine (Ill. Rev. Stat. 1977, ch. 561/2, par. 1401(b)). The defendant conducted his defense pro se. Before the trial began, but after a jury had been selected, the defendant requested a continuance in order to obtain counsel. The trial court noted the long history of continuances already obtained by the defendant and denied the motion. The appellate court reversed the conviction (96 Ill. App. 3d 519), holding that the denial of the motion for a continuance violated the defendant’s constitutional right to the assistance of counsel at trial (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, sec. 8). We granted the People’s petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315).

It required over a year and a half for this case to proceed from the complaint stage to trial. During that period, the defendant was free on bail. A year at least of that delay was directly attributable to the defendant, and most of the numerous continuances obtained by the defendant related to his obtaining and being represented by counsel.

The complaint against the defendant was filed on August 15, 1978. The attorneys first representing the defendant in this matter, John M. Cutrone and Santo J. Volpe, filed their appearances on the day after the complaint was filed. They obtained leave to withdraw on October 17, 1978, but it appears that Mr. Volpe was retained as counsel for the defendant on a Federal charge. On November 15, 1978, an information superseding the complaint was filed.

The defendant retained another attorney, Albert A. Klest. Mr. Klest filed his appearance on December 18, 1978, on which date the defendant pleaded not guilty. The court set January 30, 1979, for trial. On the day before trial, however, Mr. Klest appeared before the trial judge requesting leave to withdraw. The defendant, who was also in court, informed the court that he had employed a different lawyer, Marvin Glass. On the ground that Mr. Glass was out of State and was unable to be in court on January 30, the defendant requested a continuance. The People did not object to a continuance, but did declare that they were ready for trial. The court granted a continuance to March 5 and gave Mr. Klest leave to withdraw. An appearance was filed for Mr. Glass’s firm on March 5.

The case was then continued by the defense to May 17, 1979, because of defense counsel’s heavy court commitments in March and April. On May 17, the defendant requested and obtained a further continuance, saying that the Federal charge against him would soon be disposed of, and that the disposition of it might affect plea negotiations with the People.

On August 13, 1979, after the defendant had pleaded guilty in the U.S. district court, the People informed the circuit court that no plea bargain had been reached and requested that the case be set for trial. Trial was set for September 24, two weeks after the date on which the defendant was scheduled to be sentenced in the Federal court.

Trial in this case appeared to be made unnecessary when the defendant pleaded guilty on September 25, pursuant to a plea agreement. On October 23, however, acting pro se, he filed a motion to have the plea of guilty withdrawn and set aside. In the motion he alleged that his counsel “forced” him to accept a plea bargain. The trial court allowed the motion on November 16. At that time, Mr. Glass’s firm requested leave to withdraw, stating that the defendant’s charges that he was coerced by the attorney to plead guilty made it impossible for the attorneys to defend him properly and effectively. The defendant made no objection to the motion to withdraw, and advised the court that in preparing his motion to withdraw the plea he had consulted another lawyer, though that attorney was unable to be in court at that time. The court allowed counsel’s motion to withdraw and set the matter for trial on December 3,1979.

On December 3, the defendant requested another continuance. He said that his Federal case had not been disposed of and that the attorney representing him in Federal court was ill. He claimed also that he did not have sufficient time to secure another attorney and prepare for the December 3 trial date. The court remonstrated with the defendant, saying that he intentionally delayed prosecution, and the court held the case on its call for trial on a day-to-day basis, pending the completion of a pending trial. On December 17, 1979, in response to a motion by the People to set a specific trial date, the court set a status hearing for January 2, 1980, and trial to begin on January 7, 1980. On December 17, the court asked the defendant his attorney’s name, as no attorney had filed an appearance for him. The defendant replied he had not yet retained a lawyer, though he had discussed the case with an attorney, whom he did not name. He had spoken, he said, with several attorneys. The court instructed him to secure a lawyer by January 2.

On January 2, the defendant advised the court that he had retained an attorney, James Marcus, but that Mr. Marcus was on trial out of State. The court reminded the defendant, "[Tjhe matter is set for trial January 7th, 1:30. You are going to trial that day.”

On January 7, the defendant arrived in court late, claiming that his car had broken down and that a car that had come to pick him up ran out of gasoline. The defendant moved for another continuance on the ground that Mr. Marcus, who had not filed an appearance, was on trial out of State. The People objected vigorously, stating that the prosecution’s witnesses were present and the People were ready for trial. Too, the People pointed out to the trial court that the defendant was to surrender in the Federal court and begin serving his Federal sentence on January 17. The defendant asked the court to continue the matter again for no more than one week. The court set the cause for trial on January 16. The court admonished the defendant:

“THE COURT: We’ll start on the 16th at 9:00 a.m., sharp.
You are out on bail.
DEFENDANT WILLIAMS: Yes.
THE COURT: It is my duty to admonish you that [sic] your failure to appear in a timely manner for trial, that we will proceed to trial without your presence, or without the presence of your attorney.
On the 16th at 9:00 a.m. the jurors will be summoned into this courtroom and a voir dire will begin at 9:00 a.m., sharp, whether or not you are present or whether or not your attorney is present.
DEFENDANT WILLIAMS: All right.
THE COURT: The trial will proceed. This is the final continuance.”

On January 16, the People answered ready for trial. The defendant approached the bench and said “I’m before the court without an attorney. My attorneys were not— withdrew from the case again, didn’t feel they had proper time to reach an agreement with the State or to prepare a case.” The attorneys he spoke of were not identified and of course they had not filed an appearance. Although the defendant said he was unable to obtain other counsel, he did not offer the court any description of efforts to obtain representation. The court recited the list of 19 continuances of the case and told the defendant that he would go to trial with or without an attorney. The defendant made no reply. Only after the People and the defendant had selected a jury did the defendant move for a continuance. The People objected to the motion and, as stated, the court denied it.

Among the People’s witnesses were three agents of the Northeastern Metropolitan Enforcement Group and a forensic scientist. According to their testimony, one of the agents purchased from the defendant a substance determined by field and laboratory testing to contain cocaine.

During the one-day trial the defendant cross-examined some of the witnesses and argued to the jury. The court assisted him in the examining of witnesses and informed him that he could move for a directed verdict and that he would be “afforded an opportunity to testify if, in fact, the State meets its burden.”

The defendant had brought no one to the trial to testify for him, but during the People’s case he asked the court’s permission to communicate with a proposed witness to contradict an agent’s testimony regarding the number of people present at the time of the cocaine sale. The defendant said he would need only to make a telephone call to the witness, who lived but 15 minutes away. The court did not at that time respond to the request, but after the defendant himself had briefly testified, the court told him he could telephone his proposed witness and call her to the stand if she would be able to testify following the conference on instructions. The record shows she did not testify.

After the trial, the defendant did retain counsel for the filing of a post-trial motion, and of course he is represented by counsel on this appeal.

As stated, the appellate court held that the defendant’s right to counsel had been violated. The court said there was no knowing and intelligent waiver of counsel pursuant to Rule 401(a) (73 Ill. 2d R. 401(a)), which provides:

“Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

The court concluded:

“Under the facts of this case, the trial court should have informed the defendant that if counsel of his choice did not appear he had a right to secure other counsel of his choosing within a reasonable period of time, or informed him of his right to represent himself at trial and secured a knowing and intelligent waiver of counsel, or, alternatively, upon his continued insistence upon private counsel who did not appear, could have appointed counsel for him unless objected to by the defendant.” 96 Ill. App. 3d 519, 524.

We consider that under the circumstances shown by this record the court erred. Whether to grant or to deny a motion for continuance is within the sound discretion of the trial court, and the diligence shown by the movant is to be considered in weighing the exercise of discretion. (Ill. Rev. Stat. 1977, ch. 38, par. 114—4(e).) Discretion was not abused here. Judicial patience need not be infinite. The trial court could quite reasonably conclude that the defendant was seeking to postpone trial. This court said in People v. Friedman (1980), 79 Ill. 2d 341, 349:

“Our cases have consistently held that the accused in a criminal case does indeed have the constitutional right to be represented by counsel of his own choosing. It is equally true, however, that this right may not be employed as a weapon to- indefinitely thwart the administration of justice or to otherwise embarrass the effective prosecution of crime. (People v. Solomon (1962), 24 Ill. 2d 586, 590.)”

The defendant contends, however, that he did not intentionally delay the proceeding. Really, he says, delay was occasioned by continuing plea negotiations with the People, which concerned this case and numerous unrelated State charges. Those negotiations, he says, depended upon the disposition of a pending Federal charge. It was, therefore, to the advantage of all the parties to delay the State prosecution until disposition of the Federal case. For that reason, he concludes that he should not be blamed for the delay.

The argument is not supported by the record. There may in fact have been plea negotiations conducted, but only the continuance of May 17, 1979, was for the purpose of ascertaining what effect the disposition of the Federal charge would have on the plea bargaining.

We do not consider that any constitutional problems arose from the trial court’s action. In Ungar v. Sarafite (1964), 376 U.S. 575, 11 L. Ed. 2d 921, 84 S. Ct. 841, Ungar was found guilty of criminal contempt. He had been served with an order to show cause that set a hearing for a date five days thereafter. He appeared with counsel but was granted two short continuances to allow a different lawyer to appear for him. When the case was called again the new attorney requested a week’s continuance because he said he was unfamiliar with the case. The court, considering that Ungar had been provided with sufficient time to appear with a lawyer who would be prepared for a hearing, denied the motion for a continuance. The attorney was then permitted to withdraw. He informed the court that he had agreed to take the case only upon the condition that the defendant could secure a continuance. Ungar, after unsuccessfully arguing for a continuance himself, offered no defense. Before the Supreme Court, Ungar contended that the denial of the continuance deprived him of the right to engage counsel and present a defense.

The Supreme Court, in affirming the conviction, stated:

“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama [(1940), 308 U.S. 444, 84 L. Ed. 377, 60 S. Ct. 321]. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag [(1954), 348 U.S. 3, 99 L. Ed. 4, 75 S. Ct. 1]. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States [(1957), 352 U.S. 385, 1 L. Ed. 2d 415, 77 S. Ct. 431]; Torres v. United States [(9th Cir. 1959)], 270 E2d 252; cf. United States v. Arlen [(2d Cir. 1958)], 252 F.2d 491.” 376 U.S. 575, 589-90, 11 L. Ed. 2d 921, 931, 84 S. Ct. 841, 849-50.

Reviewing the circumstances, the court concluded: “Given the deference necessarily due a state trial judge in regard to the denial or granting of continuances, we cannot say these denials denied Ungar due process of law.” (376 U.S. 575, 591, 11 L. Ed. 2d 921, 932, 84 S. Ct. 841, 850.) Here too, the trial court’s denial of the request to delay the case further after 19 continuances was certainly not arbitrary and did not violate due process.

It would appear that an important factor in the appellate court’s decision to reverse was that the defendant could not be considered to have waived his right to counsel because there was no express waiver by the defendant after being given the admonitions in Rule 401(a), which we have quoted. (96 Ill. App. 3d 519, 523-24.) We deem, however, and there are supporting decisions, that where a defendant who is financially able to engage counsel has been instructed to do so within a certain and reasonable time, but he fails to do so and does not show reasonable cause why he was unable to secure representation, the court may treat such a failure as a waiver of the right to counsel and require him to proceed with the hearing. Among supporting decisions are: United States v. Weninger (10th Cir. 1980), 624 F.2d 163, cert. denied (1980), 449 U.S. 1012, 66 L. Ed. 2d 470, 101 S. Ct. 568 (where the defendant requested a lengthy continuance to obtain counsel because he wanted only a lawyer who shared his political ideals, the trial court, after affording a reasonable time to obtain counsel, could hold the failure to hire an attorney a knowing and intelligent waiver of the right to counsel); United States v. Fowler (5th Cir. 1979), 605 F.2d 181, cert. denied (1980), 445 U.S. 950, 63 L. Ed. 2d 785, 100 S. Ct. 1599 (the defendant’s failure to secure an attorney between his arraignment in March and an October 16 trial date was a waiver of the right to counsel, despite a motion on October 12 for a continuance stating that the attorney engaged could take the case only if the case would be continued); United States v. Arlen (2d Cir. 1958), 252 F.2d 491 ((which the court in Ungar cited) holding that the defendant, who apparently was not indigent, had waived the right to counsel by failing to hire an attorney after his previous lawyer withdrew because of nonpayment of fee).

Our holding is not inconsistent with the intendment of Rule 401(a). The record shows that the court informed the defendant of the rights set out in the rule. At the time the defendant entered his plea of guilty the court informed him of the nature of the charge and its minimum and maximum penalties. The court also informed him that, if he could not afford an attorney’s services, one would be appointed to assist him in regard to any further motions or appeal. The defendant said he understood. After the plea of guilty was vacated, the court repeatedly advised the defendant to retain counsel. The defendant does not contend that he was indigent. He engaged counsel at various times and there was never any indication to the trial court of any financial problems. He never requested the appointment of an attorney. Under those circumstances clearly there was no obligation to appoint counsel.

It was error for the appellate court to reverse on the ground that the defendant’s right to counsel was improperly denied. Other issues were presented by the defendant to the appellate court, but the court did not consider them because of the disposition it made. We are remanding the cause to the appellate court for its consideration of those issues.

For the reasons given, the judgment of the appellate court is vacated and the cause is remanded to the appellate court for consideration of the remaining issues.

Vacated and remanded, with directions.


text:
    (No. 55770.
    THE PEOPLE ex rel. THE DEPARTMENT OF PUBLIC AID, Appellant, v. LEIDA SANTOS et al., Appellees.

      Opinion filed September 17, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (William A. Wenzel, Ellen P. Brewin, and Richard D. Grossman, Special Assistant Attorneys General, of Chicago, of counsel), for the People.
    Robert Lehrer, Thomas Johnson, Diane Redleaf, and James Potter, of Chicago, for appellees.
   JUSTICE WARD

delivered the opinion of the court:

This appeal is from the circuit court of Cook County’s dismissal of three actions filed by the Attorney General for the People ex rel. the Department of Public Aid (the Department). The actions were brought to collect upon promissory notes executed by three public assistance recipients who had been informed by the Department that they had received overpayments of benefits. At the time the complaints were filed in the circuit court, a class action was pending in a United States district court that challenged the validity of the notes on Federal grounds. That action is still pending. The named plaintiffs in it are the same three recipients who were sued in the circuit court, and the defendants in the Federal court action are the Director of the Department and the supervisor of the Department’s collection division. The circuit court dismissed the State actions because it considered that section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)) requires automatic dismissal of the later-filed action when two actions based on the same facts are pending between the same parties. The appellate court affirmed. (100 Ill. App. 3d 237.) We granted leave to appeal. 73 Ill. 2d R. 315.

The Federal action was filed on September 11, 1979, in the United States District Court for the Northern District of Illinois at Chicago. The suit was brought by Mentalio Taylor, Edna Dodge, and Leida Santos, on their behalf and on behalf of similarly situated public aid recipients. They allege that they are recipients of Aid to Families with Dependent Children (AFDC), and that the Department administers the AFDC program in Illinois. They allege that they executed notes promising to pay the Department claimed overpayments of AFDC benefits. They assert that the Department’s practice of obtaining promissory notes to recover the overpayments of AFDC benefits violates Federal statutory law, implementing Federal regulations, and the Constitution of the United States. They request the district court to enjoin the challenged practice and to declare void all notes executed under the practice.

The State actions to recover on the notes were brought shortly after the commencement of the Federal action. The complaints were filed on October 24, 1979, in the circuit court of Cook County in Chicago. The complaints allege that the recipients received overpayments of benefits and executed the notes in consideration of the Department’s promise to forbear from suing to recover. On the motion of the recipients, the circuit court dismissed the actions on June 25, 1980. The court considered that, under section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)), it lacked discretion to permit the actions to continue where a previously filed action on the same matter was pending between the parties.

On the same day that the actions on the notes were filed in the circuit court, the Department officials who had been sued in the district court filed a motion to dismiss the Federal action. Among the grounds for their motion was that, in view of the filing of the State actions, the Federal court should abstain under the doctrine of Younger v. Harris (1971), 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746. The motion was denied after the circuit court dismissed the actions, although the district court’s memorandum order makes it clear that the dismissal of the State actions was not the only ground for declining to abstain.

There has been no attempt in the district court to counterclaim for enforcement of the notes. After the State court actions were begun, the recipients asked the district court to declare that the Department’s claims on the notes are compulsory counterclaims under Rule 13(a) of the Federal Rules of Civil Procedure. With certain exceptions, that rule requires that a pleader state as a counterclaim any claim existing against an opposing party at the time of service, if the claim arises from the transaction or occurrence that is the subject matter of his opponent’s claim, and if it was not the subject matter of another pending suit at the time the action was commenced.

The district court denied the motion. In so doing, the court did not determine whether the claim for enforcement of the notes is a compulsory counterclaim. Instead, the court concluded that it would be inappropriate to allow the motion and decided that it was unnecessary to rule upon the issue. The court stated that the recipients’ purpose in making the motion was to halt the State court actions, but a defendant’s failure to advance a compulsory counterclaim in Federal court does not bar the defendant from seeking relief in State courts.

The statutory section relied upon by the circuit court, section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(c)), provides:

“Involuntary dismissal based upon certain defects or defenses.
(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(c) That there is another action pending between the same parties for the same cause.”

As we have stated, in dismissing the actions the circuit court deemed that it lacked any discretion to allow the actions to continue while the previously filed Federal suit was pending. That is incorrect, however, under this court’s decision in A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245.

Staley was decided a few months after the circuit court dismissed the actions here. It involved two suits arising out of Swift’s sale to Staley of a processing plant that Swift was building, and had agreed to complete, in Iowa. Both Swift and Staley were Delaware corporations with their principal places of business in Illinois. The first suit was brought in a State court in Iowa by Swift against Staley. In the action, Swift sought to recover money that Staley had retained to insure construction of the plant. Less than two hours after that suit was filed, Staley filed an action in a circuit court in Illinois, for damages caused by Swift’s failure to complete the plant. The action in this State was dismissed, though, because the court believed that section 48(lXc) mandated dismissal in deference to the previously filed action in Iowa.

On appeal this court disagreed. It judged that the priority of the filing time of the suits is not determinative under the section. It held that “the circuit court possesses some degree of discretion in ruling upon the [section 48(lXc)] motion and that multiple actions in different jurisdictions, but arising out of the same operative facts, may be maintained where the circuit court, in a sound exercise of its discretion, determines that both actions should proceed [citation].” (84 Ill. 2d 245, 253.) This court did not find it necessary, though, to remand the matter for such a determination. Instead, the court performed its own discretionary analysis pursuant to our authority under Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) to enter any relief that the trial court could have afforded. 84 Ill. 2d 245, 253.

The Staley court decided to allow the Illinois action to proceed on two grounds. First, the court recognized that the matter was substantially related to Illinois, as was demonstrated by Staley in defending a prior forum non conveniens motion. Specifically, the court noted that the principals were Illinois residents, and that under the parties’ agreement Illinois law was to govern. Too, most of the discoverable paperwork was in Illinois, and the economic impact of the litigation would be greater in this State. 84 Ill. 2d 245, 248-49, 253.

The second factor of importance to this court in Staley was that dismissal of the action in Illinois would force Staley to proceed by counterclaim in the Iowa action. The Iowa rules of court, it appeared, would not require such a counterclaim, as they provided that a counterclaim need not be pleaded where the relief sought is the subject of an action pending elsewhere. The court considered that the policy against duplicative litigation did not require that Illinois create in a de facto sense a compulsory counterclaim rule for Iowa courts. 84 Ill. 2d 245, 253.

This court deemed it unnecessary to stay the matter, too. It did not consider “that a resident corporation’s right to its day in court should await resolution of sister-State litigation where, as here, plaintiff’s filing of its complaint does not evidence an intent to harass or gain undue influence over defendant and where, as here, the possibility of completely resolving this controversy in Illinois is greater [citation].” 84 Ill. 2d 245, 254.

Here too, of course, there are actions pending in different jurisdictions. This court has recognized that while a State court and a United States district court might both sit in Illinois, actions pending before the two courts are deemed actions brought in separate jurisdictions. (See Skolniek v. Martin (1964), 32 Ill. 2d 55, cert. denied (1965), 381 U.S. 926, 14 L. Ed. 2d 684, 85 S. Ct. 1562, facts set out at 47 Ill. App. 2d 167.) We consider it appropriate here, as did the court in Staley, to make our own discretionary analysis as to whether the action in Cook County should be dismissed rather than to delay further the proceedings by remanding for the circuit court’s discretionary examination.

Section 48(1)(c) is designed to avoid duplicative litigation and is to be applied to carry out that purpose. (See A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252; People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 255; People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 290.) An inspection of the unusual circumstances of this action leads us to conclude that section 48(1)(c) does not require that the action be dismissed. We judge, however, that it ought to be stayed pending the disposition of the Federal action.

In Staley, this court recognized the importance of keeping our courts open in the face of another pending action on the same matter where an Illinois court would be in a better position to decide the controversy. Here, there is even greater reason not to dismiss. The circuit court is the only forum in which the enforceability of the notes, apart from the Federal question, is at issue, and it may be the only forum in which that issue can be litigated.

The Federal suit is a class action against two individuals grounded on Federal law. The State suit is an action brought for the Department to collect upon only three notes. The enforceability of the notes under State law has not been raised as an issue in the district court. The Federal questions were not raised in the State court. In such circumstances we do not see there is duplicative litigation to prevent; the two courts are to decide separate questions.

Too, it is questionable whether the two defendants in the Federal court can counterclaim there for enforcement of the notes. The Federal action was brought against only those two individuals, not against the Department itself. Obviously it was brought so as to avoid the prohibition in the eleventh amendment (U.S. Const., amend. XI) of suits against States. (See generally Edelman v. Jordan (1974), 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347.) The notes were not promises to pay those two persons, however, but promises to pay the Department. The debts owed, therefore, are not debts owed to the defendants in the Federal case.

There is question as to whether the Director has the authority under State law to litigate in his own name to recover a debt for the Department. The Attorney General has pointed out that the Public Aid Code provides that actions for the enforcement of claims are to be brought by the Attorney General on behalf of the State. Ill. Rev. Stat. 1979, ch. 23, par. 12-16.

Too, it may be questioned whether under Federal procedure the two defendants could counterclaim for enforcement of the notes. The recipients contend that the individuals sued can assert that counterclaim, but the recipients refer us only to Aldens v. Packet (3d Cir. 1975), 524 F.2d 38, cert. denied (1976), 425 U.S. 943, 48 L. Ed. 2d 187, 96 S. Ct. 1684.

In Aldens an Illinois corporation brought an action against the Attorney General of Pennsylvania for declaratory relief barring the enforcement of a Pennsylvania statute. The Commonwealth itself was not sued. In the portion of the judgment relevant here the court held that the Attorney General could counterclaim for a declaration of the statute’s constitutionality and for an injunction ordering the corporation to comply, although, in a strict sense, the cause of action asserted by the counterclaim was the Commonwealth’s and not the Attorney General’s. The court said broadly that it was actuated by a policy of expeditiously resolving all controversies arising from the involved transaction. (524 F.2d 38, 50-51.) A footnote sets out the court’s speculation that its policy would even permit a public official who has been sued to counterclaim for a debt owed to the Commonwealth. 524 F.2d 38, 51 n.20.

We are not convinced that on the basis of Aldens it is certain that the district court here would allow the two Department officials to counterclaim on behalf of the State. The Aldens court noted that a contrary view had been expressed by the court in another circuit in Dunham v. Crosby (1st Cir. 1970), 435 F.2d 1177, overruled on other ground, Roper v. Lucey (1st Cir. 1973), 488 F.2d 748. Considering the existing “law of the circuit” situation (see generally Schaefer, Foreword: Stare Decisis and the “Law of the Circuit,” 28 De Paul L. Rev. 565 (1979)), the Court of Appeals for the Seventh Circuit would not be under compulsion to follow Aldens.

In Dunham, a teacher brought an action against a school superintendent and school board members as individuals for wrongful dismissal. The defendants counterclaimed for the recovery of portions of the salary that had been paid to the teacher. The district court dismissed the claim against the superintendent for failure to exhaust administrative remedies, and it dismissed the claim against the board members on evidentiary grounds. It also dismissed the counterclaim upon the ground that it was a matter for the State courts. The Dunham court did not reverse the disposition of the counterclaim, although it remanded it for consideration in light of its own decision to reinstate the claim against the superintendent. In so doing, the court stated that the superintendent alone could not counterclaim for a debt owed to the school board, and suggested that neither could the school board members counterclaim for the debt because they were sued as individuals. 435 F.2d 1177, 1181.

The Attorney General acknowledges that the difficulty could be remedied by the intervention of the State in the Federal suit. The Attorney General is unwilling to proceed in that fashion, though, considering that a waiver of the State’s eleventh amendment protection might result. He prefers to proceed in the State courts against individual recipients rather than expose the State to an expansion of the Federal litigation. It was not contemplated that section 48(lXc) could be invoked to force the State into waiving the shield of the eleventh amendment. We do not judge that the policy against duplicative litigation requires that an action in this State be dismissed on the basis of a pending suit in another jurisdiction where the questions presented in the State suit are not at issue, and it is not clear that they even can be raised in the other jurisdiction’s suit.

This decision does not require, though, that both suits must be tried simultaneously. The court in Staley recognized that the provision in section 48(lXc) for the filing of “a motion for dismissal of the action or for other appropriate relief” makes it clear that dismissal is not the only relief available under the section. (84 Ill. 2d 245, 252.) Though the court in Staley decided against it, the court considered the possibility of a stay as an alternative disposition. (84 Ill. 2d 245, 254.) Here we believe a stay would be appropriate.

The factors mentioned in Staley which are to be considered on the question of staying the action are: comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum. (84 Ill. 2d 245, 254.) A consideration of these factors shows the propriety of a stay here. There is still a possibility that the claim for enforcement of the notes will be asserted as a counterclaim, as the recipients in oral argument stated that they might amend the Federal action to include the Department, the real party in interest, as a defendant. Moreover, the deciding of the Federal suit to invalidate the notes might be dispositive of the State actions. Staying the State actions would remove the chance of conflicting judgments.

We believe the disposition we make remedies the practical problems which seem to have led to this appeal. The recipients do not appear to be disturbed about the pendency of the State actions, but about the difficulties that have developed in the attempt to litigate the Federal and State actions simultaneously. The State actions do not seem to be complex. It appears that they can be speedily handled at the conclusion of the Federal suit, which at the time of oral argument here was ready for trial. This assumes, of course, that the disposition of the Federal action will allow the State actions to proceed.

For the reasons given, the judgment of the appellate court is reversed. The judgments of the circuit court dismissing the actions are reversed, and the cause is remanded to the circuit court with directions for the entry of an order staying the actions pending the completion of the Federal proceeding.

Reversed and remanded, with directions.