text:
    (No. 52887.
    PATRICK MURPHY, Indiv. and as Adm’r, Appellant, v. JACOB GIARDINA (St. Anne’s Hospital et al., Appellees).

      Opinion filed November 18, 1980.

    John J. Lowrey, of Chicago (Brian C. Donegan and Anne C. O’Laughlin, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Stanley J. Davidson and John G. Langhenry, Jr., of counsel), for appellee St. Anne’s Hospital.

      Wildman, Harrold, Allen & Dixon, of Chicago (Mark C. Fedota and William J. Rogers, of counsel), for appellee Elio G. Vento.
    Rooks, Pitts, Fullagar & Poust, of Chicago (Jerome N. Groark, Terrence E. Kiwala and Lorenzo Bracy, of counsel), for appellee Bruno S. Cortis.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Plaintiff, Patrick Murphy, individually and as administrator of the estates of his wife and son, filed a second amended complaint for wrongful death against defendants, Dr. Elio Vento, Dr. Bruno Cortis, and St. Anne’s Hospital. The circuit court of Cook County dismissed this complaint. On appeal, the appellate court affirmed. 78 Ill. App. 3d 896.

Although plaintiff raised five issues for review, they can be condensed to two basic questions: whether section 21.1 of the Civil Practice Act (Ill. Rev. Stat., 1976 Supp., ch. 110, par. 21.1) applies to plaintiff’s pleading entitled “first amended complaint” and whether Dr. Vento, Dr. Cortis, and St. Anne’s Hospital (respondents) were named as parties defendant within the two-year statute of limitations for wrongful death actions (Ill. Rev. Stat. 1975, ch. 70, par. 2).

The original complaint alleged that plaintiff’s wife and son died on December 17, 1974, from complications arising during the wife’s pregnancy. On November 10, 1975, plaintiff filed a wrongful death suit naming Dr. Jacob Giardina as the sole defendant. Dr. Giardina is not a party to this appeal. On December 16, 1976, plaintiff filed his first “amended complaint,” again naming Dr. Giardina as defendant and, by separate counts, naming Dr. Vento, Dr. Cortis, and St. Anne’s Hospital as respondents in discovery pursuant to section 21.1. As stated in plaintiff’s brief, this pleading alleged that “each of the Respondents In Discovery had ‘information essential to the determination of who should properly be named as additional Defendants in this action’ and as relief sought ‘prompt response to all discovery sought,’ without asserting allegations of negligence, or of damages proximately caused by the conduct of the individual Respondents In Discovery, as would have been done if these parties had been named as Defendants, rather than Respondents In Discovery.”

On February 15, 1977, Dr. Cortis filed a motion to dismiss plaintiff’s “amended complaint” alleging that section 21.1 (1) applied only to actions arising after September 19, 1976, and (2) was unconstitutional. On May 31, 1977, Dr. Vento moved to dismiss on the same grounds. On May 31, 1977, the trial court held the section invalid and dismissed Drs. Vento and Cortis as respondents in discovery. Plaintiff was given leave to file a second amended complaint within 28 days. On June 29, 1977, St. Anne’s Hospital filed a motion to dismiss plaintiff’s amended complaint based upon the trial court’s May 31 order holding the section void. The motion was granted on July 7, 1977.

On the same day, plaintiff filed his second amended complaint, this time naming Dr. Vento, Dr. Cortis, and St. Anne’s Hospital as additional parties defendant. This complaint alleged specific acts of negligence on the part of each defendant that proximately caused the death of plaintiff’s decedents and requested monetary damages. The three additional defendants moved to dismiss this complaint on the grounds that it was barred by the two-year statute of limitations applicable to wrongful death actions. The trial court entered an order granting the motions to dismiss under Rule 304(a) (73 Ill. 2d R. 304(a)). On appeal, the appellate court found it unnecessary to rule upon the constitutionality of section 21.1 because plaintiff failed to comply with its terms. We also find it unnecessary to rule on the constitutional issue.

In 1976 the General Assembly passed a law entitled “An Act in relation to the regulation of medical practice and recovery for injuries from malpractice, amending certain Acts herein named” (Act) (Pub. Act 79 — 1434). The Act amended various statutes pertaining to medical practice within the State. Section 8 of the Act amended the Civil Practice Act by adding the section here involved and provides in part:

“The plaintiff in any action based on an allegation of negligence in the performance of health care services may designate as respondents in discovery in his pleading those individuals, other than the named defendants, believed by him to have information essential to the determination of who should properly be named as additional defendants in the action.
Persons so named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.
" * * *
A person named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after he is named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him may have expired during such 6 month period.” Ill. Rev. Stat., 1976 Supp., ch. 110, par. 21.1.

Section 9 of the Act further provides:

“This amendatory Act takes effect 30 days after it becomes a law and the changes made in the Civil Practice Act by Section 8 apply only to civil actions filed after this Act takes effect.” (1976 Ill. Laws 1359.)

The Act was approved on August 20, 1976, and became effective 30 days thereafter on September 19, 1976. See also Ill. Ann. Stat., ch. 110, par. 21.1, Supplement to Historical and Practice Notes (Smith-Hurd Supp. 1980).

Thus, when the section became law on August 20, 1976, it clearly was to have only prospective effect beginning on September 19, 1976. As a result, the Act is inapplicable to the instant case. Plaintiff’s pleading of December 16, naming respondents in discovery, related to the original complaint filed on November 10, 1975. Hence, the original civil action that is the basis for instituting the respondents-in-discovery procedure was filed before the effective date of the section. The cases relied on by plaintiff in support of his argument that procedural laws should be applied retroactively when the legislature expresses no contrary intent are inapposite. Here, the legislature expressed a contrary intent.

Plaintiff further argues that even if the section pertains only to cases filed after September 19, 1976, it is, nevertheless, applicable to the instant case. Plaintiff contends that his pleading entitled “first amended complaint” instituted a new cause of action which placed it under the ambit of section 21.1. He relies on Board of Education v. City of Chicago (1949), 402 Ill. 291, 296, and Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 742.

The case before us differs, however, in that plaintiff’s December 16 pleading did not constitute a complaint at law; it was simply a discovery device. It did not charge the respondents with actionable conduct or seek damages from them. As plaintiff admits in his brief, the respondents were named for the purpose of obtaining “ ‘information essential to the determination of who should properly be named as additional Defendants in this action’ and as relief sought ‘prompt response to all discovery sought,’ without asserting allegations of negligence, or of damages proximately caused by the conduct of the individual Respondents In Discovery ***.” Thus, the December 16 pleading was not a new cause of action commenced after the effective date of section 21.1. Further, naming Dr. Vento, Dr. Cortis, and St. Anne’s Hospital as respondents in discovery did not serve to name them as parties defendant within the original two-year statute of limitations.

Plaintiff’s reliance upon section 21.1 fails for two reasons. First, as stated above, the section does not apply to plaintiff’s original action because it was commenced on November 10, 1975, which was prior to the effective date of the section. Second, even if the Act were applicable, the plaintiff failed to name the respondents as parties defendant until July 7, 1977, after the six-month extension granted by the section to the two-year limitations period had expired. Consequently, the trial court was correct in granting the motions by respondents to dismiss plaintiff’s second amended complaint.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 53097.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. CURTIS DAVIS, Appellee.

      Opinion filed November 18, 1980.

      Tyrone Fahner, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr, Joel A. Stein and Mark S. Komessar, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Geraldine V. Biggs and James L. Rhodes, Assistant Public Defenders, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

After a jury trial the defendant, Curtis Davis, was convicted of disorderly conduct (Ill. Rev. Stat. 1977, ch. 38, par. 26 — 1(a)). The circuit court of Cook County sentenced him to 30 days in the custody of the Department of Corrections and one year’s probation, and he was fined $500. The appellate court reversed on the ground that the defendant’s acts did not constitute the offense of disorderly conduct, as a matter of law. (79 Ill. App. 3d 784.) We allowed the State’s petition for leave to appeal. (73 Ill. 2d R. 315(a).) We reverse.

The defendant, Curtis Davis, entered the home of the complaining witness, Mrs. Pearl Robinson, on the afternoon of January 3, 1978. The complainant was 81 years old and confined to a wheelchair. At the time in question, Mrs. Robinson was ill and was resting on a couch in her living room. According to Mrs. Robinson’s testimony at trial, the defendant approached her waving sheets of white paper. He pointed his finger at her and said that his brother was not going to jail or to court. Then he said, “If he do, Miss Pearl, you know me.” The record shows that the complainant had previously sworn out a complaint against the defendant’s brother in relation to an incident involving the complainant’s grandson. The complainant testified she called the police after the defendant left her house. A police officer testified he took a statement from the complainant on January 10, 1978. The defendant was arrested on January 14, 1978, and charged with disorderly conduct.

The sole issue on this appeal is whether the defendant’s conduct properly falls within the scope of the offense of disorderly conduct. The applicable portion of the statute provides:

“A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace; ***.” (Ill. Rev. Stat. 1977, ch. 38, par. 26 — 1(a)(1).)

The committee comments to section 26 — 1, while not binding upon this court, of course, are persuasive to a degree. They state that the types of conduct intended to be included under this section “almost defy definition.” (Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 149 (Smith-Hurd 1977).) One example given of conduct which would fall within the scope of the section is “indirectly threatening bodily harm (which may not amount to assault).” (Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 149 (Smith-Hurd 1977).) The comments continue that culpability under the section revolves not only around the type of conduct, but is equally dependent upon the surrounding circumstances. (Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 149 (Smith-Hurd 1977).) In this case the defendant entered the house of an 81-year-old woman who is an invalid. It is disputed as to whether he walked in uninvited or was permitted to come in by the complainant’s granddaughter-in-law. He approached Mrs. Robinson, waved sheets of paper at her and in effect told her that the charge against his brother should not be prosecuted or some undefined threat would be carried out. The instant offense is intended to guard against “an invasion of the right of others not to be molested or harassed, either mentally or physically, without justification.” (Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 149 (Smith-Hurd 1977).) We think the defendant’s conduct falls squarely within the type of conduct intended to be proscribed by section 26 — 1(a)(1). Ill. Rev. Stat. 1977, ch. 38, par. 26 — 1(a)(1).

A collateral contention raised by the defendant is that, in order to provoke a breach of the peace, an act must be performed in public view. We find this contention devoid of merit. A breach of the peace may as easily occur between two persons fighting in a deserted alleyway as it can on a crowded public street. (See People v. Raby (1968), 40 Ill. 2d 392.) The committee comments point out: “No attempt has been made to limit the scope of the article to public acts. (Cf. People v. Ohneth, 339 Ill. App. 247, 89 N.E.2d 433 (1949).)” (Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 150 (Smith-Hurd 1977).) In this case the defendant breached the peace of the complainant and her granddaughter-in-law by unreasonably invading their right not to be harassed. (Ill. Ann. Stat., ch. 38, par. 26 — 1, Committee Comments, at 149 (Smith-Hurd 1977).) Such an act provoked a breach of the peace of the two women who were compelled to hear the defendant’s indirect threat. See Noe v. People (1866), 39 Ill. 96, 97-98.

Finally, the defendant contends that there was a variance between the complaint and the evidence which resulted in his conviction. The complaint quoted the statute, and continued: “to wit: by threatening Pearl Robinson with bodily harm to her grandson, Cavin [sic] Robinson, if said Cavin [sic] Robinson should testify against Donald Davis in a criminal proceeding.” No proof was adduced at trial of a specific threat to Calvin Robinson’s physical safety. In a colloquy among the court and counsel there was a discussion of an amended complaint, which was filed with leave of court. Although the only complaint in the record is not labeled “amended,” we will assume it is the complaint at issue.

The complaint is attacked for the first time in this appeal. In such an instance, to vitiate a trial, a variance between the allegations in a criminal complaint and the proof at trial “must be material and be of such character as may mislead the accused in making his defense or expose him to double jeopardy.” People v. Figgers (1962), 23 Ill. 2d 516, 518-19; accord, People v. Johnson (1976), 65 Ill. 2d 332, 337; People v. Pujoue (1975), 61 Ill. 2d 335, 339; People v. Nelson (1965), 33 Ill. 2d 48, 52, cert. denied (1966), 383 U.S. 918, 15 L. Ed. 2d 671, 86 S. Ct. 911.

The defendant has made no claim that he withheld evidence or was otherwise prejudiced in preparing his defense due to the variance between the complaint and the proof. Moreover, the defendant’s defense was that he did not threaten Mrs. Robinson at all, but merely conversed with her. Thus, the defendant’s argument that he was charged with threatening the wrong person is not material to his defense because it does not operate to exculpate him at all. The fact still remains that the defendant made a general threat. Lastly, the complaint is sufficiently precise to be pleaded in bar of another prosecution, since it quotes the statutory offense charged, the place, the date, and the person to whom the offense was directed. (People v. Johnson (1976), 65 Ill. 2d 332, 339; People v. Pujoue (1975), 61 Ill. 2d 335, 340.) The variance between the complaint and the proof neither misled the defendant in preparing his defense nor subjected him to the danger of double jeopardy. Therefore the additional phrase concerning Calvin Robinson was unnecessary and could be disregarded as surplusage without affecting the validity of the complaint. (People v. Simpkins (1971), 48 Ill. 2d 106, 111.) Accordingly, for the reasons enumerated, the judgment of the appellate court is reversed and the cause is remanded to the appellate court for consideration of the other issues raised in the defendant’s brief.

Reversed and remanded, with directions.


author: MR. JUSTICE MORAN

text:
    (No. 53066.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BENNIE D. HAYWOOD, Appellant.

      Opinion filed November 18, 1980.

      Robert Agostinelli, Deputy Defender, and Frank W. Ralph, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellant.
    William J. Scott, Attorney General, of Springfield (Melbourne A. Noel, Jr., and Marcia L. Friedl, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendant, Bennie D. Haywood, was found guilty of murder after a jury trial in the circuit court of Kankakee County. He was sentenced to the penitentiary for the term of 14 to 25 years. The conviction was affirmed by a majority of the appellate court. (79 Ill. App. 3d 303.) We granted defendant’s petition for leave to appeal.

Defendant relied upon intoxication as a defense to the charge of murder. The two issues raised on appeal relate to this defense. Defendant contends that (1) he was denied effective assistance of counsel, and (2) the jury was improperly instructed.

The relevant facts are adeqúately stated in the opinion of the appellate court and will be repeated here only where necessary for an understanding of the issues.

On January 21, 1977, the day of the murder, the defendant had been drinking steadily from the early hours of the morning. At approximately 6 p.m., defendant left his house and drove to pick up his friend, T.C. Brooks. The two men stopped at various taverns where they drank alcoholic beverages. Brooks had told the defendant that he knew of a man who would sell them corn whiskey. Defendant and Brooks left the tavern in search of the man selling corn whiskey, but defendant “passed out” in the car. According to the first statement that defendant gave to the police, the next thing that he remembered was awaking alone in his car, which was in a ditch. However, in a second statement given to police, defendant stated that when he awoke in his car he was with Brooks. An argument ensued about $25 which the defendant had given to Brooks to buy whiskey. Blows were exchanged. Believing that Brooks was reaching into his coat for a gun, defendant grabbed his .22-caliber pistol. In a struggle, defendant’s gun fired twice, striking Brooks. The defendant pulle^ Brooks’ body out of the car, laid it in the road, and drove away.

Brooks’ body was found by police at 9 a.m. on that same day. One hour later, a local police officer discovered defendant’s car on the median strip of a highway, 28.3 miles from the spot where the victim’s body was found. The officer saw the defendant standing 50 yards away. The defendant approached the officer, raised his hands, and said, “Don’t shoot--Don’t shoot. I don’t have a gun.” The officer noted that defendant had trouble walking and smelled of alcohol. His speech was slurred. The defendant was arrested for driving under the influence of alcohol and was taken to the county jail. The defendant was unable to perform the physical tasks included in the sobriety test. A breathalyzer test was administered which found an excess of .31% alcohol in the defendant’s blood. A short time later, the police were informed that defendant was sought in connection with the murder of T.C. Brooks.

Psychiatric reports introduced into evidence at trial showed that the defendant had a long history of alcoholism accompanied by occasional blackout spells.

The defendant first contends that he was denied effective assistance of counsel in that his appointed counsel failed to introduce expert testimony to explain the significance of the breathalyzer-test results. He argues that this omission denied him the right to present his defense of intoxication to the jury.

In order to establish that an appointed counsel was so ineffective and incompetent as to deprive the defendant of his right to counsel, it must be established that counsel was actually incompetent in the performance of his duties and that substantial prejudice resulted from such incompetency, without which the results of the trial would have been different. (People v. Greer (1980), 79 Ill. 2d 103, 120-21; People v. Hills (1980), 78 Ill. 2d 500, 515; People v. Witherspoon (1973), 55 Ill. 2d 18, 21.) However, if the alleged incompetency is a matter of trial tactics or strategy, which are purely matters of professional judgment, such allegations cannot support a claim of ineffective representation. People v. Greer (1980), 79 Ill. 2d 103, 122; People v. Witherspoon (1973), 55 Ill. 2d 18, 22.

In the present case, the fact that trial counsel did not introduce expert testimony to interpret the results of the breathalyzer test is purely a matter of judgment. Substantial testimony had been introduced to show not only that the defendant was intoxicated on the date in question, but also that the defendant had a long history of alcohol abuse. The introduction of expert testimony to explain the exact meaning of the breathalyzer results would have been cumulative and, therefore, defense counsel’s decision not to introduce it was clearly a matter of trial strategy.

The defendant’s second contention is that the trial court erred in giving People’s Instruction No. 6A over defendant’s objection. Defendant argues that Illinois Pattern Jury Instructions (IPI), Criminal, No. 24.02, which was earlier submitted by the State, without objection, was the only appropriate instruction to be given to the jury where the defense is voluntary intoxication. IPI Criminal No. 24.02 states:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly and intentionally.”

People’s instruction No. 6A states:

“While intoxication may be used to nagative [sic] the element of intent when it is extreme, merely being drunk or intoxicated is not a sufficient defense. Only if the Defendant’s intoxication is so extreme as to suspend entirely his power of reason, rendering him incapable of any mental action, is that intoxication a defense to the offense of Murder.”

The defendant argues that instruction No. 6A misled the jury in that the phrase “rendering him incapable of any mental action” could have been interpreted as a state of unconsciousness, or at least as a higher degree of intoxication than is necessary to constitute the defense under the law. Defendant claims that instruction No. 6A misstates the law and requires reversal.

Instructions found in IPI were drafted with the goal of sharply reducing the number of cases in which jury verdicts were set aside because of erroneous instructions. Consequently, each instruction was painstakingly drafted with the use of simple, brief and unslanted language so as to clearly and concisely state the law. To insure the use of such instructions, this court adopted Rule 451(a), which requires that an instruction in IPI be given where applicable, unless the court determines that the instruction does not accurately state the law. It is axiomatic, therefore, that the use of additional instructions on a subject already covered by IPI would defeat the goal that all instructions be simple, brief, impartial and free from argument.

IPI Criminal No. 24.02 is a simple, clear and concise statement of the defense of voluntary intoxication. Such instruction needs no embellishment, explanation or further definition, whereas instruction No. 6A serves only to confuse the jury by redefining in ambiguous language that which is clear on its face under IPI Criminal No. 24.02. Moreover, the rule in Illinois is that when conflicting instructions are given, one of which is a correct statement of law and the other is an incorrect statement of law, the error is not harmless. (People v. Jenkins (1977), 69 Ill. 2d 61, 66; People v. Miller (1949), 403 Ill. 561, 565.) Such contrary instructions prevent the jury from performing its constitutionally appointed function because it has not been properly informed of the law to be applied in a particular case. People v. Jenkins (1977), 69 Ill. 2d 61, 66.

As we have stated, IPI Criminal No. 24.02 correctly and succinctly explained the law to the jury as to the defense of intoxication. Instruction No. 6A presented a conflicting definition as to the level of intoxication necessary to constitute the defense. The jury could have construed this instruction as requiring the defendant to be devoid of any mental activity whatsoever or to be in a state of unconsciousness. This is not the law in Illinois, and the trial court committed reversible error in allowing instruction No. 6A to be given to the jury. For this reason, the judgments of the appellate court and the circuit court of Kankakee County are reversed, and the cause is remanded to the circuit court for a new trial.

Reversed and remanded.


text:
    (No. 52535.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JEROME LOCKETT, Appellee.

      Opinion filed November 18, 1980.

      William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State’s Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Michael B. Weinstein, Assistant Attorneys General, of Chicago, and P. Richard Sturgeon, Assistant State’s Attorney, of counsel), for the People.
    H. Gary Apoian, of Apoian, Ross & Funk, P.C., of East St. Louis, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendant, Jerome Lockett, 18 years of age, shot and killed Henry Jones, 78 years of age. The defendant was convicted of murder after a jury trial in the circuit court of St. Clair County. He was sentenced to a term of not less than 25 years’ nor more than 50 years’ imprisonment. In a majority opinion, the appellate court reversed the conviction and remanded the cause to the trial court for a new trial. (75 Ill. App. 3d 183.) We granted leave to appeal.

The facts surrounding the shooting are as follows. On the evening of September 3, 1973, the defendant and two of his friends, while in defendant’s automobile, came upon the victim, who was pulling his pushcart filled with glass bottles. The defendant and his companions became engaged in an argument with the victim regarding his pushcart blocking the northbound lane of the street.

According to a written statement taken by a police officer, the victim approached the car on the passenger’s side, reached into his back pocket and pulled out a smoking pipe. At this point, defendant stated that he and his passengers started laughing. Then, according to the statement:

“[T] he man said I’ve got something in here (and he was pointing at the Push Cart) that’ll make you move, then the man reached down into the Cart and was bring [sic] up something brown, and that’s when Fullalove [one of the passengers] said Lockett watch out and Fullalove was down on the seat and I thought the man had a gun so I got my gun from out of the waste can and shot one time at the man.”

At trial, the defendant testified that he had to reach from the driver’s seat over the front-seat passenger and out the window to fire the gun. He stated that the victim was throwing bottles at them, but that did not cause him to shoot. Defendant testified that he fired in the victim’s direction when the victim started to approach him with a gun.

The investigating officers testified that the victim was dead when they arrived at the scene. They searched the immediate area and the pushcart, but found no weapon. An empty whiskey bottle was lying near the victim’s body. Defendant’s gun was subsequently recovered from a nearby field.

At the close of all the evidence, defense counsel tendered the definitional and issues instructions on voluntary manslaughter, Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 7.03, 7.04, 7.05, and 7.06 (1968). Upon objection by the State that the instructions were not supported by evidence, the court refused to give them to the jury. The jury was given IPI Criminal No. 24.06, the instruction on justifiable use of force.

IPI Criminal Nos. 7.03 and 7.04 are based upon section 9 — 2(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 2(a)), which concerns voluntary manslaughter caused by serious provocation. The evidence reveals the absence of serious provocation in this case, and the trial court was correct in refusing to give IPI Criminal Nos. 7.03 and 7.04.

IPI Criminal Nos. 7.05 and 7.06 are founded upon section 9 — 2(b) of the Code, which covers voluntary manslaughter based upon an unreasonable belief of justification. Section 9 — 2(b) provides that a person is guilty of voluntary manslaughter when he intentionally or knowingly kills another under the unreasonable belief that the killing was justified under article 7 of the Code. Article 7, section 7 — 1, of the Code (Ill. Rev. Stat. 1973, ch. 38, par. 7 — 1) provides that a person is justified in the use of force intended to cause death or great bodily harm if he reasonably believes the force is necessary to prevent imminent death or great bodily harm. Justifiable use of force is a defense in a murder prosecution when the person’s belief “is reasonable even if it is mistaken.” (Ill. Ann. Stat., ch. 38, par. 7 — 1, Committee Comments, at 364 (Smith-Hurd 1972).) The State correctly draws a distinction between a reasonable, mistaken belief under section 7 — 1 (e.g., a reasonable belief that the victim was coming at him with a gun when the victim, in fact, had no gun) and an unreasonable belief under section 9 — 2(b) (e.g., a belief that the victim was coming at him with a gun and that belief was unreasonable). However, the State goes on to argue that because the defendant could have a reasonable (although mistaken) belief that he could act in self-defense he, therefore, was not entitled to an instruction on voluntary manslaughter based upon an unreasonable belief.

This contention is incorrect. A defense based upon self-defense does not preclude a voluntary manslaughter instruction in a murder prosecution. According to the committee note to IPI Criminal No. 7.05: “When the charge is murder, the defense is self defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instructions should be: first, Instruction 7.01 (Murder); second, *** Instruction 7.05; third, applicable instruction from Chapter 24 — Defenses.” (See also People v. Joyner (1972), 50 Ill. 2d 302, 307.) It is the settled rule in murder cases that if there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter, an instruction defining manslaughter should be given. People v. Handley (1972), 51 Ill. 2d 229, 235; People v. Joyner (1972), 50 Ill. 2d 302, 306; People v. Canada (1962), 26 Ill. 2d 491, 491-92; People v. Papas (1942), 381 Ill. 90, 94; People v. DeRosa (1941), 378 Ill. 557, 562.

It is equally well settled, however, that such an instruction should not be given if the evidence clearly demonstrates that the crime was murder and there is no evidence upon which a jury might find the defendant guilty of manslaughter. People v. Handley (1972), 51 Ill. 2d 229, 235; People v. Latimer (1966), 35 Ill. 2d 178, 182; People v. Marsh (1949), 403 Ill. 81, 94; People v. DeRosa (1941), 378 Ill. 557, 562.

Several appeEate court opinions have held that if the evidence supports a self-defense instruction, it will also support a voluntary manslaughter instruction. People v. Wright (1974), 24 Ill. App. 3d 536, 542; People v. Zertuche (1972), 5 Ill. App. 3d 303, 306; People v. Johnson (1971), 1 Ill. App. 3d 433, 435.

We agree with those cases. A self-defense instruction is given in a homicide case when there is some evidence in the record which, if believed by a jury, would support a claim of self-defense. IPI Criminal No. 24.06, “Use of Force in Defense of a Person,” provides in pertinent part:

“*** [A] person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent [imminent death or great bodily harm to (himself — another) ] or [the commission of a forcible felony].” (Emphasis added.)

The jury, when given this instruction, could conclude one of three things. First, it could decide that the defendant did not have a subjective belief that use of force was necessary. In that case, the verdict should be murder. Second, it could determine that the defendant had the subjective belief that use of force was necessary and that subjective belief was reasonable. In that event, the defendant’s use of force was justified and the verdict should be not guilty. Third, a jury could conclude that the defendant subjectively believed that use of force was necessary, but that this subjective belief was unreasonable under the circumstances. The third alternative is the precise situation in which a verdict of voluntary manslaughter should be reached under section 9 — 2(b). IPI Criminal No. 7.05, “Voluntary Manslaughter — Intentional—Belief of Justification,” provides:

“A person commits the crime of voluntary manslaughter who intentionally or knowingly kills another if, at the time of the killing, he believes that circumstances exist which would justify the killing, but his belief that such circumstances exist is unreasonable. ” (Emphasis added.)

Therefore, a self-defense and a voluntary manslaughter instruction should be given when any evidence is presented showing the defendant’s subjective belief that use of force was necessary. If the subjective belief is reasonable, the result is justifiable use of force; if the subjective belief is unreasonable, the result is voluntary manslaughter. People v. Joyner (1972), 50 Ill. 2d 302, 306-07.

The determination of whether the defendant’s subjective belief is reasonable is for the jury to make. In People v. Papas (1942), 381 Ill. 90, 96, this court held that the failure of the trial court to submit a voluntary manslaughter instruction constituted reversible error. The court stated:

“In a case tried by a jury it is the province of the jury, not the judge, to decide the guilt or innocence of the accused. It is equally the province of the jury to decide whether or not the accused is guilty of murder, or of the lesser crime of manslaughter, if there is any evidence which tends to prove the lesser rather than the greater crime. We have repeatedly rejected instructions which, as a matter of law, took the decision of this question from the jury.” (Emphasis added.) 381 Ill. 90, 96.

It is not the province of the judge to weigh the eviddence and decide if defendant’s subjective belief was reasonable or unreasonable. The judge’s duty is to determine if any evidence is presented that the defendant had a subjective belief. We can conceive of no circumstance when a judge could determine, as a matter of law, that a jury could find the defendant had a reasonable subjective belief the killing was justified, but that the jury could not find the defendant’s subjective belief was unreasonable. So long as some evidence is presented from which a jury could conclude that defendant had a subjective belief, the jury should determine if the belief existed and, if so, whether that belief was reasonable or unreasonable. Consequently, we hold that when the evidence supports submitting an instruction on justifiable use of force, a tendered IPI Criminal No. 7.05 on voluntary manslaughter also should be given.

Here, the record indicates that the 78-year-old victim picked up a brown whiskey bottle, not a gun, from the pushcart, and that such action was followed by a warning from one of defendant’s passengers to “watch out.” The submission of the self-defense instruction by the trial judge indicates that, in his opinion, the jury could conclude defendant acted in the subjective belief his conduct was in self-defense. The record supports that determination. As a result, a voluntary manslaughter instruction also should have been given. It was for the jury to conclude whether defendant acted in the belief his conduct was justified and whether that belief was reasonable or unreasonable.

The trial court’s reason for rejecting the manslaughter instruction was not because the record failed to reveal any evidence that would reduce the crime to manslaughter.

Rather, the trial judge refused to give the instruction because he concluded that “self-defense is seldom compatible with voluntary manslaughter.” The judge also stated:

“I think he based his shooting on the fact that Fullalove [the passenger] said something, and then he saw this brown object, which I think you can see lying in the street alongside the old man. The brown whiskey bottle. I think the old man was going to hit him with another bottle or throw a bottle. Must have been a real speed ball coming at them from that 79 year old man. No. I am going to refuse that instruction ***.”

If anything, the judge’s statement reinforces the possibility that the jury could determine that the defendant’s belief was unreasonable. In any event, the question of reasonableness is not for the court to decide.

The State cites People v. Handley (1972), 51 Ill. 2d 229, where this court refused to allow manslaughter instructions to be given to the jury. In that case, the court determined there was no evidence in the record from which the jury could find the defendant guilty of manslaughter. However, in Handley, the court only considered whether the jury could conclude from the evidence that the defendant was acting under a sudden, intense passion resulting from provocation (51 Ill. 2d 229, 236), which is section 9 — 2(a) of the Code. The court did not consider a voluntary manslaughter instruction based upon section 9 — 2(b) of the Code. Similarly, People v. DeRosa (1941), 378 Ill. 557, is inapposite. There, the court concluded no evidence of provocation was present in the record to warrant a manslaughter instruction. The court gave a self-defense instruction (thus deciding that the jury could conclude defendant’s use of force was reasonable), but did not address whether the jury could conclude that defendant’s use of force was unreasonable. (378 Ill. 557, 563.) Prior to the 1961 revision of the Code, cases of voluntary manslaughter referred only to situations where the killing was the result of a sudden and intense provocation. The unreasonable-use-of-force element was first enacted in 1961.

In People v. Cannon (1971), 49 Ill. 2d 162, 166, this court affirmed the trial court’s refusal to give voluntary manslaughter instructions, stating that the evidence did not show circumstances that would create the belief, albeit unreasonable, that shooting at the group of boys was necessary to prevent defendants’ suffering imminent death or great bodily harm. The implication is that the court determined that the defendant did not have the subjective belief, either reasonable or unreasonable, required for self-defense. Conversely, in the instant case, the trial court determined that a jury could conclude that the defendant had the subjective belief prerequisite to justifiable use of force.

Thus, this court has never held, in a factually similar context, that a voluntary manslaughter instruction should not be given. The evidence presented the possibility that the defendant had the subjective belief he was acting in self-defense. As stated above, it was for the jury to determine if the defendant did, in fact, have the subjective belief and, if so, that the belief was reasonable or unreasonable under the circumstances.

For the reasons stated the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 53141.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. HENRY YOUNGBEY et al., Appellants.

      Opinion filed November 18, 1980.

      James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, Assistant Public Defender, of counsel), for appellants.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Marcia B. Orr and Richard F. Burke, Assistant State’s Attorneys of counsel), for the People.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal arises from the determination of a Cook County circuit court judge that the statutory requirement that a presentence investigation be conducted and a report be submitted in all felony cases (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1) (amendment effective February 1, 1978) constitutes an unconstitutional legislative encroachment on the judiciary’s sentencing power. The appeal comes directly to this court pursuant to our Rule 603. 73 Ill. 2d R. 603.

The defendants, Henry Youngbey and Tyrone Watson, were charged by information with unlawful use of weapons (Ill. Rev. Stat. 1977, ch. 38, par. 24 — 1). They waived their right to a trial by a jury and were jointly tried before a Cook County circuit court judge. During the trial, certified statements of the defendants’ prior convictions were admitted into evidence. Defendant Youngbey had pleaded guilty on November 20, 1973, to attempted robbery. He had also entered a guilty plea on March 8, 1976, to two charges of robbery. For each of these convictions, Youngbey received a sentence of 2 to 6 years’ imprisonment to be served concurrently. The above convictions were also stipulated to by the parties during the trial, and the stipulation included the fact that Youngbey had been released from the penitentiary on June 20, 1977. A certified statement concerning defendant Watson’s entry of a guilty plea to robbery on November 25, 1975, was also submitted. He was on probation for the robbery conviction at the time that the information was filed for the unlawful-use-of-weapons charge.

The judge found both defendants to be guilty of the charge and denied their respective motions for a new trial. Both defendants, as well as the State, waived the presentence investigation and they requested that a sentencing hearing be conducted immediately. No specific sentence had been agreed to by the parties. Aggravating evidence was then presented by the State concerning the defendants’ criminal history. The State requested that the judge consider the verified copies of conviction which had been put into evidence, and it also represented that defendant Watson had spent “nine days in the House” for an aggravated assault charge in September of 1977. This representation was not challenged by Watson. Following the presentation of mitigating evidence, the judge sentenced defendant Youngbey to a 4-year term of imprisonment, and defendant Watson was sentenced to 2Vz years.

Two days later, when the case was before the court in regard to the filing of defendants’ notices of appeal, the judge, sua sponte, held section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1) unconstitutional. It was the court’s opinion that the provision requiring a presentence report which could not be waived was an invasion of the sentencing powers of the judiciary and also an invasion of executive authority, in that the State’s Attorney would not be permitted to waive such an investigation and report. Thus, according to the trial judge, the legislative requirement that a presentence investigation report be made in all felony cases encroaches upon the judiciary in its sentencing function and upon the executive branch of government in the prohibition against the waiver of the investigation and report.

The defendants argue before this court that the legislature was well within its constitutional authority in enacting section 5 — 3—1. The defendants assert that the statute, as amended, mandates the presentation of a presentence report to the sentencing judge in all felony cases absent an agreement between the parties concerning the sentence to be imposed. Inasmuch as the report was mandatory and there were no agreements as to the sentences, the defendants contend that they did not have the option of waiving the reports and that the judge did not have the authority to accept their waivers. The State, in its brief, concedes that the statute does not constitute an unlawful legislative infringement on the powers of the judicial or executive branches of government. However, the State argues that section 5 — 3—1 does not deny a defendant the right to waive the presentence investigation report.

Thus, both the defendants and the State contend that the trial court erred in holding section 5 — 3—1 unconstitutional. This court has held that the imposition of a criminal sentence is a judicial function. (People v. Phillips (1977), 66 Ill. 2d 412.) However, this section of the Code does not constitute an infringement upon this judicial function. The aspect of the sentencing function involved in this section relates solely to a presentencing procedure. The General Assembly has the power to enact laws governing judicial practices when the laws do not unduly infringe upon the inherent powers of the judiciary or conflict with a rule of this court. Our opinion in Strukoff v. Strukoff (1979), 76 Ill. 2d 53, discusses in depth the limitations which the legislature must observe in enacting laws relating to judicial proceedings. A further detailed discussion of the question is unnecessary here. Under the authority of Strukoff and the cases cited therein, section 5 — 3—1 of the Unified Code of Corrections does not constitute an unconstitutional encroachment upon either the judicial or executive powers.

The remaining question before this court is whether, in the absence of an agreement as to the sentence to be imposed, a presentence investigation report is a mandatory requirement in felony cases under section 5 — 3—1 of the Unified Code of Corrections and, if so, whether such a requirement may be waived by the defendant.

Section 5 — 3—1 provides:

“A defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.
However, the court need not order a presentence report of investigation where both parties agree to the imposition of a specific sentence, provided there is a finding made for the record as to the defendant’s history of delinquency or criminality, including any previous sentence to a term of probation, periodic imprisonment, conditional discharge, or imprisonment.
The court may order a presentence investigation of any defendant.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1.) (Amendment effective February 1, 1978.)

Prior to February 1, 1978, section 5 — 3—1 provided that a presentence report of investigation be presented to and considered by the sentencing judge. However, the statute specifically provided that the investigation and report could be waived by the defendant. It provided:

“A defendant shall not be sentenced before a written presentence report of investigation is presented to and considered by the court where the defendant is convicted of a felony. The defendant may waive the presentence investigation and written report.
The court may order a presentence investigation of any defendant.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 3—1.)

After an examination of the statute both before and after its amendment, we hold that the presentence investigation and report is a mandatory legislative requirement which cannot be waived except in accordance with the exception in the statute.

We note first the specific language of the statute. Section 5 — 3—1 provides that “[a] defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1.) Whether a statutory provision is to be considered mandatory or merely directory depends upon the drafters’ intent. An important aid in determining whether a provision is mandatory or directory is the form of the verb used in the statute. (2A A. Sutherland, Statutes and Statutory Construction sec. 57.03, at 415 (1973).) Both before and after its amendment, section 5 — 3—1 has included the words “shall not be sentenced.” Generally, the use of the word “shall” is regarded as indicative of a mandatory intent. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21; See 1A A. Sutherland, Statutes and Statutory Construction sec. 25.04, at 301 (1972).) We recognize, however, that this is not an inflexible rule; the statute may be interpreted as permissive, depending upon the context of the provision and the intent of the drafters. Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 268.

However, not only did the legislature use the mandatory word “shall” in this section of the Code, both before and after the amendment, but it coupled with it the negative limitations of shall not be sentenced. Thus, this section, both before and after the amendment, specifically prohibited a judge from sentencing one convicted of a felony unless a written presentence investigation report was presented to and considered by the court. We cannot construe this requirement as other than mandatory. The action proscribed by the use of the negative “not” renders this requirement much more plainly mandatory than if the requirement would simply have read “the court shall consider a presentence report of investigation before sentencing.” See Carrigan v. Liquor Control Com. (1960), 19 Ill. 2d 230; 1A A. Sutherland, Statutes and Statutory Construction sec. 25.04, at 301 (1972).

Before the amendment, however, this section of the Code, as noted above, although having the mandatory requirement just discussed, also provided that a defendant might waive the presentence investigation and written report. This provision was removed from section 5 — 3—1 by the amendment effective February 1, 1978. The presumption is that, when a legislature amends an act by deleting certain language therefrom, it intended to change the law in that respect. Although the presumption of a change in the law may be reasonable when the language plainly withdraws á right expressly given (in our case the right of the defendant to waive the presentence investigation and report), the circumstances surrounding the amendment should also be considered. If they indicate that the legislature intended only to interpret the original act, the presumption of an intention to change the law is rebutted. Usually, an amendment of an unambiguous statute indicates a purpose to change the law, but no such purpose is indicated by the amendment of an ambiguous provision. (See 1A A. Sutherland, Statutes and Statutory Construction sec. 22.30, at 178-79 (1972); Saltiel v. Olsen (1979), 77 Ill. 2d 23, 29.) It is presumed that every amendment to a statute is made for some purpose, and effect must be given to the amended law in a manner consistent with the amendment. McLaughlin v. People (1949), 403 Ill. 493, 501.

Applying these principles of statutory construction, we must presume that, when the legislature deleted from this unambiguous section of the Code the specific provision authorizing a defendant to waive the presentence investigation and report, it intended not only that the requirement of a presentence investigation report be mandatory, but also that after the effective date of the amendment the defendant should no longer have the privilege of waiving this requirement.

In examining the circumstances surrounding the adoption of the amendment, we find nothing to rebut this presumption. In fact, the legislative debates concerning the House bill in which this amendment was contained support this conclusion. In explaining House Bill 1500 (Pub. Act 80 — 1099), Representative Getty stated in the House debates of May 19, 1977:

“We require and I hope you note this, a mandatory presentence investigation that goes hand in hand with the Bill that we passed out just last week of creating a statewide probations system. A system that would, I hope, bring an end to the unfortunate system where we have people placed on probation, placed on probation and placed on probation again. Sometimes only the defendant knows he’s already on probation. This would bring that sort of thing to an end so a Judge would know when he makes his sentence that a man is already on probation. And it would requiring [szc] a sentencing Judge to give his reason for the sentence imposed.” (Ill. H.R. Rec., 80th Gen. Assem., May 19, 1977, at 106.)

From this explanation by Representative Getty, it is apparent that the purpose of the requirement of a presentence investigation report is to insure that the trial judge will have all necessary information concerning the defendant before sentence is imposed, including the defendant’s criminal history. We must therefore hold that the presumption that the legislature intended to change the law by deleting the provision permitting the defendant to waive the presentence investigation report has not been rebutted and that the language of section 5 — 3—1, requiring a presentence investigation report, not only is mandatory, but also cannot be waived.

In so holding, we also reject the State’s argument that the defendant has a right to waive the presentence-report requirement in the same way as the defendant has the right to waive the presentation of evidence presented in mitigation of the crime. While it is true that the defendant’s right to have an examination of witnesses in mitigation is personal and can therefore be waived, even in the absence of an express waiver provision in the statute (see People v. Barto (1976), 63 Ill. 2d 17), we do not find this argument to be persuasive. The presentation of witnesses in mitigation is solely for the benefit of the defendant. The presentence report, however, is for the enlightenment of the court, as well as for the benefit of the defendant. As such, it is not a personal right of the defendant. Thus, the presentence investigation report is intended to serve as a useful tool for the sentencing judge. We therefore cannot say that a trial judge will be sufficiently apprised of the defendant’s criminal record in the absence of the mandatory presentence investigation and report. We conclude that section 5 — 3—1 sets forth a mandatory, reasonable legislative requirement which, not being a personal right of the defendant, cannot be waived.

Accordingly, the judgment of the trial court holding section 5 — 3—1 of the Unified Code of Corrections unconstitutional is reversed. The sentences imposed are vacated and the cause is remanded to the circuit court of Cook County for a presentence investigation and report and a new sentencing proceeding.

Judgment reversed; sentences vacated; cause remanded, with directions.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 50275.
    THE PEOPLE ex rel. JERRY COSENTINO, State Treasurer, et al., Petitioners, v. THE COUNTY OF ADAMS et al., Respondents.

      Opinion filed November 18, 1980.

      Original petition for mandamus.

    Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield (Herbert Lee Caplan and William R. Wallin, Assistant Attorneys General, of Chicago, of counsel), for petitioners.
    Dennis P. Ryan, State’s Attorney, of Waukegan (Gary Neddenriep, Assistant State’s Attorney, of counsel), for respondent County of Lake.
    James E. Hinterlong, State’s Attorney, of Ottawa (James A. Lanuti, Assistant State’s Attorney, of counsel), for respondent County of La Salle.
    Gene L. Armentrout, State’s Attorney, of Geneva (Linda Soreff Siegel, of counsel), for respondent County of Kane.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Pursuant to leave granted, petitioners, the People of the State of Illinois ex rel. Jerry Cosentino, Treasurer of the State of Illinois, and Roy O. Gulley, Director of the Administrative Office of the Illinois Courts, filed this original action (Ill. Const. 1970, art. VI, sec. 4(a)); 73 Ill. 2d R. 381) seeking writs of mandamus to compel the Counties of Adams, Effingham, Hancock, Kane, Lake, La Salle, Putnam and Woodford, and the members of their county boards, to reimburse the State for those counties’ apportioned shares of judicial salaries.

Petitioners filed their motion for leave to file this action on December 29, 1977. At that time there was pending in the General Assembly a bill, subsequently enacted, effective December 14, 1978 (Pub. Act 80 — 1473), which amended the statutes in issue here (Ill. Rev. Stat. 1977, ch. 53, pars. 3.2, 3.3). Petitioners thereafter moved to file an amended petition reflecting the present circumstances of the case.

The statutory provisions in issue (Ill. Rev. Stat. 1977, ch. 53, pars. 3.2, 3.3) provide that circuit judges and associate judges are to receive a stated basic salary from the State to be paid out of the State treasury. Circuit and associate judges in the circuit comprised of the First Judicial District (Cook County) and all other circuits composed of a single county are to be paid stated sums of “additional salary” by those counties. Circuit and associate judges in all circuit courts other than those constituted by the First Judicial District or composed of a single county are paid additional salary out of the State treasury in amounts equivalent to that paid by the counties in the First Judicial District and other single-county circuits. With regard to the additional salary paid out of the State treasury, sections 3.2 and 3.3 of the statute involved direct as follows:

“The counties in each Judicial circuit, other than the Circuit Court in the Judicial Court constituted by the First Judicial District and any Judicial circuit composed of a single county, shall reimburse the State Treasury for each additional [sum of] salary paid to [circuit and associate] judges of their Circuit Courts. The sums to be paid by the counties in each such circuit shall be computed by the Administrative Office of the Illinois Courts and shall be apportioned among those counties in accordance with their respective populations compared with the total population of all counties within the same circuit. The population of each county shall be determined by the last federal census immediately preceding such reimbursement. Each county shall pay its portion of reimbursement not later than the last day of January in the year immediately following such additional salary payment by the State.” Ill. Rev. Stat. 1977, ch. 53, pars. 3.2, 3.3.

This controversy arises because respondents have refused to pay all or part of the amount of reimbursement due for the period July 1, 1975, through December 31, 1978. It is respondents’ position that it is the State’s constitutional obligation to pay judicial salaries and that sections 3.2 and 3.3 contravene article VI, section 14, of the 1970 Constitution, which provides in part:

“Judges shall receive salaries provided by law which shall not be diminished to take effect during their terms of office. All salaries and such expenses as may be provided by law shall be paid by the State, except that Appellate, Circuit and Associate Judges shall receive such additional compensation from counties within their district or circuit as may be provided by law.”

Respondents contend that the statutes violate the provisions of article VI, section 14, of the 1970 Constitution for the reason that they are “inconsistent with the intent and language of the Illinois Constitution.” They argue that the historical background and the constitutional debates show that the intent of the framers of the Constitution was to make the supplementation of judicial salaries by the counties permissive, and that section 14 does not permit the State to unilaterally shift the burden of judicial salaries onto the counties. Citing to the Constitutional Convention debates they argue further that the intent of the provision was to permit other counties to supplement judicial salaries, as did Cook County, under article VI, section 25, of the Constitution of 1870 and section 17 of the Judicial Article approved in 1962, effective 1964.

We have examined those portions of the debates of the constitutional convention cited by respondents (3 Record of Proceedings, Sixth Illinois Constitutional Convention 2217-21, 2260-72) and find apropos our statement in Client Follow-Up Co. v. Hynes (1979), 75 Ill. 2d 208, 221:

“It is possible to lift from the constitutional debates on almost any provision statements by a delegate or a few delegates which will support a particular proposition; however, such a discussion by a few does not establish the intent or understanding of the convention.”

The guiding principle, also found in Hynes, is that “although the constitutional debates may often be helpful in understanding the meaning of doubtful constitutional provisions, the true inquiry concerns the understanding of its provisions by the voters who, by their vote, have given life to the product of the convention. People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 527; Wolfson v. Avery (1955), 6 Ill. 2d 78, 88; Burke v. Snively (1904), 208 Ill. 328, 344.” (75 Ill. 2d 208, 222.)

The explanation to the voters states:

“This changes Article VI, Section 17 of the 1870 Constitution. It extends to all counties the provision currently applicable only to Cook County, to pay Circuit Judges a supplementary salary.” 6 Proceedings 2720-21.

An examination of the constitutional and legislative history shows that initially, judicial salaries were payable out of the “public treasury.” (Ill. Const. 1818, art. IV, sec. 5; see Ill. Const. 1848, art. V, sec. 10.) Under the 1870 Constitution, salaries were constitutionally fixed “until otherwise provided by law.” (Ill. Const. 1870, art. VI, secs. 7, 16.) Section 25 of article VI provided in part that “The judges of the superior and circuit courts, and the state’s attorney, in said county, shall receive the same salaries, payable out of the state treasury, as is or may be paid from said treasury to the circuit judges and state’s attorneys of the state, and such further compensation, to be paid by the county of Cook, as is or may be provided by law.”

Immediately after the 1870 Constitution became effective, the General Assembly fixed the amount of “further compensation” and provided that it was to be paid by Cook County. (1871-72 Ill. Laws 420, 454.) This practice continued up to the adoption of the judicial article of 1964. See, e.g., 1901 Ill. Laws 207; 1907 Ill. Laws 331; 1915 Ill. Laws 442; 1919 Ill. Laws 553; 1923 Ill. Laws 364; 1925 Ill. Laws 400; 1933 Ill. Laws 610, 621; 1937 Ill. Laws 606; 1945 Ill. Laws 867-68; 1951 Ill. Laws 182; 1955 Ill. Laws 623; 1959 Ill. Laws 361; 1961 Ill. Laws 2051; 1963 Ill. Laws 2676.

The judicial article, approved in 1962, effective in 1964, provided: “All [judicial] salaries and expenses shall be paid by the State, except that judges of the Appellate Court for the First District and circuit and associate judges and magistrates of the Circuit Court of Cook County shall receive such additional compensation from the county as may be provided by law.” (Ill. Const. 1870, art. VI (1964), sec. 17, as amended.) The General Assembly enacted legislation requiring that Cook County pay “additional salary” to its appellate and circuit judges. (See 1965 Ill. Laws 2122.) Until the enactment of Public Act 77 — 1888 (1977 Ill. Laws 242), except for an amendment which affected only salaries of the appellate court and is not here relevant, the statutes have continued to provide for supplemental payments to its judges by the County of Cook.

In view of the clear and explicit language of the constitutional provision, the lengthy history of supplemental payments by Cook County mandated by the General Assembly, and the explanation to the voters, we hold that the General Assembly was clearly authorized to enact the legislation in question. The statute does not contravene article VI, section 14, of the Constitution of 1970 and the writs of mandamus are awarded.

Writs awarded.


text:
    (No. 52836.
    THE CITY OF SPRINGFIELD et al., Appellees, v. ROBERT H. ALLPHIN, Director of Revenue, et al., Appellants.—THE COUNTY OF KANE et al., Appellees, v. JAMES B. ZAGEL, Director of Revenue, Appellant.

      Opinion filed November 18, 1980.

      Tyrone C. Fahner and William J. Scott, Attorneys General, of Springfield (Fred F. Herzog, Special Assistant Attorney General, and Robert G. Epsteen, Assistant Attorney General, of counsel), for appellant.
    Pfeifer & Kelty, P.C., of Springfield (Frank M. Pfeifer and Thomas W. Kelty, of counsel), for appellees.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This case involves a dispute over the recovery of interest allegedly due the plaintiffs in two cases consolidated in the appellate court arising as a result of this court’s decision in City of Springfield v. Allphin (1978), 74 Ill. 2d 117. After consolidation in the appellate court, the consolidated case was transferred to this court pursuant to our Rule 302(b) (73 Ill. 2d R. 302(b)). The issue now before us in whether under our holding in City of Springfield v. Allphin an award of interest is authorized. We hold it is not.

In City of Springfield v. Allphin, we held that the act reducing from 4% to 2% the State’s fee for the collection of certain municipal taxes became effective on December 5, 1974, rather than July 1, 1975. The State, by collecting a 4% fee during the period December 5, 1974, to July 1, 1975, had retained funds which should have been distributed to the plaintiff. Our decision remanding that cause directed the circuit court to fashion injunctive relief designed to halt the withholding of any collection fee until the amount overwithheld had been compensated for. On remand, the plaintiff city of Springfield filed an amended complaint that, on behalf of cities, sought to recover interest on the funds overwithheld in addition to the return of the principal amount. The complaint in County of Kane v. Zagel (filed January 31, 1979), the case consolidated with City of Springfield v. Allphin, sought similar relief on behalf of counties. The legislature appropriated funds for the payment of the amounts overwithheld and those payments are not at issue here. (1979 Ill. Laws 205, 211.) In both cases, the circuit court of Sangamon County awarded interest to the plaintiffs on the amounts overwithheld.

In discussing the relief to be granted on remand, we stated in City of Springfield v. Allphin that “[t]he net effect of such relief should be to reduce the amount of such taxes withheld by the State until the earlier overwithholding is compensated for.” (City of Springfield v. Allphin (1979), 74 Ill. 2d 117, 131.) This language appears as the last sentence in the paragraph of the opinion stating the court’s holding. If any ambiguity or suggestion that interest was recoverable existed earlier in the opinion, this sentence laid it to rest. Precise and unambiguous directions in a mandate must be obeyed. (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 48; Thomas v. Durchslag (1951), 410 Ill. 363, 365.) Here, the circuit court, on remand, was authorized to compensate the plaintiff for the amount “overwithheld” and nothing more. In commenting on the reasons for this rule, the court stated in Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, that it would be impossible to negate every conceivable issue in an opinion and that a decision which failed to exclude a particular result did not include it by implication. (Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, 27-28.) In our prior City of Springfield v. Allphin decision, the fact that we failed to exclude an award of interest did not mean, and cannot be construed to mean, that we intended to include it.

The plaintiffs argue that not only was interest not precluded by our previous opinion, but that the language of our opinion specifically authorized the award of interest. The language relied upon is: “[F]inally, because we hold that the remedy requested by plaintiffs was an appropriate one, we need not reach the merits of the alternative remedy suggested by the appellate court.” (Emphasis added.) (74 Ill. 2d 117, 131.) Plaintiffs contend that the language italicized authorized the award of interest upon remand since they had, in the original declaratory judgment action, sought not only a refund of the amounts overwithheld, but also interest. Thus, plaintiffs argue, the award of interest was “the remedy requested by plaintiffs,” which this court, in its opinion, stated was an appropriate one. The language clearly does not refer to the allowance of interest. Earlier in the opinion it was stated:

“In counts II through IV plaintiffs seek reimbursement from funds currently being collected by the State.” (74 Ill. 2d 117, 122.)

The opinion noted that the pleadings had not precisely described the funds to be paid into the protest fund. The opinion then went on to discuss the holding of the appellate court which had remanded the cause to permit plaintiffs to amend their pleadings to pray for an alternative remedy. (74 Ill. 2d 117, 122-23.) The language now relied upon by plaintiffs was not referring to the allowance of interest as being an appropriate remedy. Instead, it referred to the suggestion that reimbursement be made to plaintiffs from funds currently being collected. Therefore this court would not need to consider the alternatives suggested by the appellate court. The holding of this court was that, on remand, plaintiffs should amend the complaint to define the funds (tax revenue) from which they may obtain reimbursement, and that the net effect of such relief should be to reduce the amount of the taxes withheld from said funds by the State until the earlier overwithholding is compensated for. In fact, the last sentence of the paragraph containing the language relied upon by plaintiffs contains the clear direction to the trial court, on remand, heretofore discussed. Under the clear language of the opinion, the trial court, upon remand, was not authorized to order that the amount withheld by the State be reduced until the amount overwithheld, plus interest, is fully compensated for.

County of Kane v. Zagel was consolidated with City of Springfield v. Allphin in the appellate court after the latter case had been retried on remand. The County of Kane case was not part of the previous proceedings in this matter, and the mandate of this court in the previous case did not involve the County of Kane. We will therefore consider the other issues raised as to interest in such proceedings.

It is well settled that interest is not recoverable absent a statute or agreement providing for it. (Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415, 423; People ex rel. Barrett v. Farmers State Bank (1938), 371 Ill. 222, 224; Blakeslee’s Storage Warehouses, Inc. v. City of Chicago (1938), 369 Ill. 480, 483.) Plaintiffs contend that sections 2 and 3 of the Interest Act give them the right to recover prejudgment and post-judgment interest in this case. Section 2 provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” (Ill. Rev. Stat. 1977, ch. 74, par. 2.)

Section 3 states:

“Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the same 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, or a school district or community college district. When judgment is entered upon any award, report or verdict, interest shall be computed at the rate aforesaid, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment. However, 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. 1977, ch. 74, par. 3.)

Assuming, arguendo, that the plaintiffs’ claims come within these statutes, it must further be determined whether the legislature intended that the State be liable under them.

Interest statutes, like statutes imposing costs, are in derogation of the common law and must be strictly construed. Nothing is to be read into them by intendment or implication. (Summers v. Summers (1968), 40 Ill. 2d 338, 342.) It has been held that interest is a creature of statute and cannot be recovered except where a statute authorizes it. (Fowler v. Harts (1894), 149 Ill. 592, 597.) An exception has been recognized to this rule where a city has wrongfully exacted money and holds it without just right or claim. (City of Chicago v. Northernwestern Mutual Life Insurance Co. (1905), 218 Ill. 40, 44.) In City of Chicago, however, it was recognized that the city was merely exercising its powers as a corporate municipality and not the power of sovereignty. That exception has no application here because general legislative enactments do not impair the rights of the sovereign unless an intent to make the State liable is expressed in the statute. (Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 396.) The general enactments quoted above do not suggest that they were aimed at imposing liability for interest on the State. In Department of Revenue v. Appellate Court this court considered whether costs could be assessed aginst the State under section 22 of “An Act to revise the law in relation to costs” (Ill. Rev. Stat. 1975, ch. 33, par. 22). In discussing whether the statute was sufficient to subject the State to liability for costs, the court said:

“Statutes which in general terms authorize imposing costs in various actions or proceedings but do not specifically refer to the State are not sufficient authority to hold the State liable for costs. The State’s consent to the imposition of costs against it must appear in affirmative statutory language.” (Department of Revenue v. Appellate Court (1977), 67 Ill. 2d 392, 396.)

Our discussion and ruling in Department of Revenue v. Appellate Court concerning the imposition of costs against the State applies with equal force to the general interest statutes involved in the case at bar. This reasoning is buttressed by the fact that when the legislature intends to impose liability on the State for interest it affirmatively declares that the burden will fall on the sovereign. (E.g., Ill. Rev. Stat. 1977, ch. 127, par. 132.403.) The failure of the legislature to specifically subject the State to liability under these general interest statutes prevents their use as authority for assessing interest against the State in these cases.

We turn next to the consideration of whether a court exercising its equitable powers could award interest in this case. The rule has been long established that equity may award interest even though not within the precise terms of the statute. In chancery proceedings, the allowance of interest lies within the sound discretion of the judge and is allowed where warranted by equitable considerations and disallowed if such an award would not comport with justice and equity. (Finley v. Finley (1980), 81 Ill. 2d 317, 332; Galler v. Galler (1975), 61 Ill. 2d 464, 474; Duncan v. Dazey (1925), 318 Ill. 500, 527; Golden v. Cervenka (1917), 278 Ill. 409, 433; Keady v. White (1897), 168 Ill. 76, 83.) The fact that these proceedings were in equity does not authorize the circuit court to award interest against the State in the absence of statutory authority, when doing so has the net effect of entering a money judgment against the State. In seeking to recover interest from the State, plaintiffs are seeking to recover a sum of money from the sovereign over and above that which, under the statute, rightfully belonged to them and which the defendant, as an officer of the State, had wrongfully withheld.

In our original review of City of Springfield v. Allphin, we considered at length the question of sovereign immunity. We noted therein the statutory duties of the Director of Revenue and found that the relief requested against the Director for the wrongful withholding of funds did not make the case a suit against the State. The fact that the Director had deposited the disputed funds into the State’s general revenue fund does not prohibit the court from fashioning an appropriate form of relief. In actions such as these where a public official is restrained from doing acts not authorized by statute, the suit is not necessarily against the State, but is against the individual in his official capacity. (See Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 548; Owens v. Green (1948), 400 Ill. 380, 409; People ex rel. Freeman v. Department of Public Welfare (1938), 368 Ill. 505, 507.) In this case the defendant, Robert Allphin, the Director of Revenue, was required to collect the municipal retailers’ occupation tax and the municipal service occupation tax on plaintiffs’ behalf and pay those funds over to the State Treasurer. (Ill. Rev. Stat. 1973, ch. 24, pars. 8 — 11—1, 8 — 11—5.) He was not authorized to invest or otherwise deal with the funds in any way other than that described. The collection of the appropriate amount of tax and the disbursement of those funds were the only duties of the office that had any effect on the plaintiffs, relative to this suit. Having determined that the defendant withheld an inappropriate amount of tax, in violation of the law, the court fashioned a remedy to correct that violation by allowing the defendant to be restrained from withholding future taxes until the amount overwithheld had been compensated for. The defendant would thus be compelled to discharge his duty according to law.

It is quite another question, however, for a court of equity to also withhold from future collections, not an amount rightfully belonging to plaintiffs which had been wrongfully paid into the State Treasury, but an amount over and above that sum to be paid to plaintiffs as interest. The claimed interest is a separate and distinct claim against the State of Illinois, and the order of the trial court ordering interest is, in effect, a judgment against the State of Illinois. The circuit court had no authority to enter a judgment or to fashion an equitable remedy for the collection of interest in this case. (See Campbell v. Department of Public Aid (1975), 61 Ill. 2d 1, 5.) By compelling the defendant to do acts in his official capacity which are not provided for by statute and to go beyond mere reparation for past “illegal” conduct, this court would be taking action against the State in contravention of sovereign immunity. Hudgens v. Dean (1979), 75 Ill. 2d 353.

There being no method in law or equity by which interest can be awarded to the plaintiffs, the orders of the circuit court of Sangamon County awarding interest to the plaintiffs in these consolidated cases are hereby reversed.

Orders reversed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 53040.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RICKY L. ADKISSON, Appellee.

      Opinion filed October 17, 1980.

      William J. Scott, Attorney General, of Springfield, and Carl E. Hawkinson, State’s Attorney, of Galesburg (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and John X. Breslin and Gary F. Gnidovec, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Thomas Lilien, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Ricky L. Adkisson pleaded guilty in the circuit court of Knox County to two counts of attempted murder, and the State dismissed a third count charging rape. He was sentenced to concurrent prison terms of not less than 40 nor more than 50 years. Defendant’s subsequent motion to vacate his guilty pleas was denied following a hearing. The appellate court concluded that defendant had been improperly admonished as to the mental state required to sustain a conviction for attempted murder, and reversed the judgments, vacated defendant’s guilty pleas and remanded the cause for defendant to plead anew. (78 Ill. App. 3d 923.) We granted leave to appeal. This case again presents the problem involving the specific intent necessary to constitute attempted murder as discussed in our Muir-Trinkle-Harris-Roberts decisions (People v. Muir (1977), 67 Ill. 2d 86; People v. Trinkle (1977), 68 Ill. 2d 198; People v. Harris (1978), 72 Ill. 2d 16; People v. Roberts (1979), 75 Ill. 2d 1).

Here, the second count of the information charged defendant with “the offense of Attempt (Murder) in that said defendant, with the intent to commit the offense of Murder, in violation of Illinois Revised Statutes, Chapter 38, Section 9 — 1(a)(1), performed a substantial step toward the commission of that offense, in that he, without lawful justification and with intent to do great bodEy harm to Rebecca Ann Adkisson, stabbed Rebecca Ann Adkisson with a knife ***” (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(a)). The third count, in identical language, charged defendant with the same crime but with Robin Ann Adkisson listed as the victim. The attempted murder counts were later amended by changing the words “with intent to do great bodily harm” to “with intent to kill or do great bodily harm.”

At the arraignment on June 1, 1977, defendant pleaded not guilty to all three counts, but, on September 12, counsel moved to withdraw those pleas as to the second and third counts and to plead guilty. In compliance with our Rule 402 (73 Ill. 2d R. 402) the trial judge admonished defendant, reading to him the contents of both counts and advising him that attempted murder was a Class 1 felony with a minimum sentence of four years and an indeterminate maximum term, plus a mandatory five-year parole period. The defendant said that he understood and reiterated his desire to plead guilty to both counts. After the trial court advised him that entry of guilty pleas would waive his rights to a jury trial, to call witnesses, to cross-examine the State’s witnesses, and to require the State to prove him guilty beyond a reasonable doubt, the defendant indicated his understanding that he was giving up those rights. After being told by defendant that neither he nor his family had been subjected to physical force, threats or promises of any kind and that he understood that the judge would determine the sentence, which could differ from that which counsel recommended, the trial court accepted the guilty pleas to both counts.

In response to the court’s inquiry regarding the factual basis of the charges, the State’s Attorney stated that the evidence would show that defendant was at a house on Bandy Avenue in Galesburg at approximately 11 p.m. on May 17. While at that location, defendant stabbed his stepmother, Rebecca Adkisson, 9 or 10 times with a knife, with the intent to kill and to do great bodily harm to her. Robin Adkisson was attracted by her mother’s screams and was told by her to go to the telephone. She was caught, however, by the defendant, who also stabbed her three times with, as further indicated by the State’s Attorney, the intent to kill or to do great bodily harm to her. In response to an inquiry by the trial court, defendant agreed that these facts were substantially correct. The State’s Attorney also submitted to the court a psychiatric report, ordered earlier by the court upon defendant’s motion, which indicated that defendant was legally competent, was capable of knowing right from wrong at the time of the alleged offense, and was able to cooperate with counsel in his own defense.

At the October 3 sentencing hearing the trial judge gave defendant a choice between having his sentence determined after court consideration of the presentence investigation report or after a hearing in mitigation and aggravation. The defendant and his counsel expressly waived his right to a hearing, and defendant acknowledged the accuracy of the presentence report, with the exceptions of a statement that he had been sleeping in cars as an adolescent and of data indicating that he was 19 rather than the actual 18 years of age. After receiving statements on sentence recommendations from the State’s Attorney, defense counsel and defendant, sentence was imposed as earlier noted.

On October 25, defense counsel filed a motion to withdraw his guilty pleas and vacate the judgments on the sole ground that the sentence imposed was unduly harsh. An amendment was filed on December 5, which included as additional grounds that defendant was intoxicated at the time of the alleged offense due to use of alcoholic beverages, hashish and barbiturates; that no psychiatric hearing had been held to determine defendant’s fitness to stand trial; and that at the time of an alleged confession or statement to police authorities, defendant was under the influence of medication administered to him by hospital officials for treatment of a laceration apparently resulting from the alleged offense.

At the hearing on the motion to vacate, defendant testified that on the eve of the May 17 stabbings he ingested a one-gram bowl of hashish and a “hit” of “four-way windowpane” acid. On May 17, defendant stated he had taken a second hit of the acid and drank a six-pack of beer, causing him to feel “just high.” He also testified that the drugs caused him to hallucinate and to see different colors but did not affect his ability to recognize his surroundings. Defendant further stated that the drugs caused no other physical distortions and that he was partially able to reason. Before providing the police with a statement early in the morning on May 18, defendant received a shot for a cut on his finger and pain-killer pills, as a result of which the defendant “didn’t feel nothing but high.” Defendant’s testimony was controverted by Terry Boynton, the Galesburg police officer who took defendant’s statement. Boynton testified that defendant, based upon prior occasions when Boynton interviewed him, appeared to understand the Miranda warnings given him (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602), did not seem to be under the influence of intoxicants, and responded in detail and coherently to questions. The trial judge denied the motion to vacate.

The appellate court found that, considering the case law in effect at the time he tendered his guilty pleas, defendant had been properly admonished under our Rule 402 (73 Ill. 2d R. 402) with respect to the mental state required for attempted murder. Because People v. Trinkle (1977), 68 Ill. 2d 198, was decided subsequent to the entry of those pleas but prior to the hearing on defendant’s later motion to vacate, however, the appellate court concluded that the motion should have been allowed. While recognizing that our Rule 604(d) (73 Ill. 2d R. 604(d)) deems as waived any ground not raised in a motion to vacate, that court held the asserted ground amounted to plain error under Rule 615(a) (73 Ill. 2d R. 615(a)). Defendant’s argument that he had been denied effective assistance of counsel was summarily denied. The appellate court concluded by noting that, while not prejudiced, defendant was improperly advised as to the penalty for attempted murder and the choice between a hearing in aggravation and mitigation or having the trial judge read the presentence report.

In this appeal, the State argues that the asserted error in the trial court’s admonitions was waived under Rule 604(d) and that the plain error exception in Rule 615(a) is inapplicable. It is further urged that even if such an exception does apply, any error in the admonitions did not constitute plain error and was harmless error beyond a reasonable doubt.

Many of our cases have emphasized that any error not raised in a post-trial motion is waived on appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177; People v. Foster (1979), 76 Ill. 2d 365; People v. Coles (1979), 74 Ill. 2d 393; People v. Edwards (1978), 74 Ill. 2d 1, cert. denied (1979), 422 U.S. 931, 61 L. Ed. 2d 299, 99 S. Ct. 2862; People v. Precup (1978), 73 Ill. 2d 7.) The waiver rule set forth in Rule 604(d) could scarcely have been made more definite. It provides: “Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.” (73 Ill. 2d R. 604(d).) The salutary purpose of a firm waiver rule, as reiterated in the opinions of this court and of our appellate courts (People v. Roberts (1979), 75 Ill. 2d 1, 11, citing Finfrock v. Eaton Asphalt Co. (1976), 41 Ill. App. 3d 1020, Dean v. Keith’s & Ralph’s Tavern, Inc. (1975), 25 Ill. App. 3d 970, and Boone v. Baker (1972), 9 Ill. App. 3d 509), is to encourage timely objections to trial court errors in order to permit correction in the trial court, rather than to reward a non-objecting party with a reversal resulting from his own failure to act.

Defendant has argued, however, that the plain error exception in Rule 615(a) (73 Ill. 2d R. 615(a)) should be deemed applicable to the waiver rule governing guilty pleas. Even if we were to recognize, as did the appellate court, the applicability of Rule 615(a) to Rule 604(d), we do not believe the circumstances here can be so categorized. The admonition given defendant and the amended information were erroneous in that they did not restrict the mental state required for attempted murder to “an intent to kill,” as held in People v. Trinkle (1977), 68 Ill. 2d 198, and later reinforced in People v. Harris (1978), 72 Ill. 2d 16. That alone, however, does not require reversal.

We believe this case is controlled by our opinion in People v. Roberts (1979), 75 Ill. 2d 1, 14, and the cases there cited. In Roberts jury instructions containing a similar defect were recognized as erroneous but were held not to be so substantial or egregious as to qualify as exceptions to our waiver rule providing that failure to object at trial to instructional errors waives the question. (See People v. Tannenbaum (1980), 82 Ill. 2d 177; People v. Coles (1979), 74 Ill. 2d 393; People v. Precup (1978), 73 Ill. 2d 7.) It would seem axiomatic that error which can be held waived in a jury trial where guilt is denied must be held waived where defendant has entered a guilty plea. People v. Jones (1980), 81 Ill. 2d 1, 7, also involved a jury trial, an objected-to instruction, and a significant issue to which the court wished to speak. It is not apposite here.

Our decision to hold this issue waived does not, as defendant argues, contravene Henderson v. Morgan (1976), 426 U.S. 637, 49 L. Ed. 2d 108, 96 S. Ct. 2253, since the circumstances there involved are clearly distinguishable from those before us. The defendant in Henderson had been indicted on a charge of first-degree murder but pleaded guilty to second-degree murder. In the trial judge’s admonitions, however, “[t] here was no discussion of the elements of the offense of second-degree murder, no indication that the nature of the offense had ever been discussed with [defendant], and no reference of any kind to the requirement of intent to cause the death of the victim.” (426 U.S. 637, 642-43; 49 L. Ed. 2d 108, 113, 96 S. Ct. 2253, 2256.) The United States Supreme Court accordingly held that the plea was involuntary and that the judgment of conviction entered thereon violated due process. Here, however, defendant was charged by information with and admonished by the trial judge as to the same offense of attempted murder.

We find no error in the appellate court’s determination that defendant had not been denied the effective assistance of counsel. While failure of defense counsel to assign the trial court’s admonitions as error in the motion to vacate may have been poor judgment, it does not amount to the incompetence required by our decisions (see People v. Hills (1980), 78 Ill. 2d 500; People v. Murphy (1978), 72 Ill. 2d 421).

The judgment of the appellate court is accordingly reversed and the cause is remanded to that court for consideration of additional issues defendant maintains were raised but not considered by the appellate court in its disposition of this cause. People v. Roberts (1979), 75 Ill. 2d 1.

Reversed and remanded, with directions.