author: JUSTICE MORAN

text:
    (No. 54984.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. RONALD BROWN, Appellee.

      Opinion filed September 17, 1982.
    Rehearing denied November 24, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, 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, Casimir J. Bartnik, Michael E. Shabat, Joan S. Cherry, and Randall E. Roberts, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark, Deputy Defender, of the Office of the State Appellate Defender, of Chicago (Fe Fernandez, of Evanston, of counsel), for appellee.
   JUSTICE MORAN

delivered the opinion of the court:

On August 27, 1979, the circuit court of Cook County granted a motion by the defendant, Ronald Brown, to dismiss an indictment against him for the murder of Tony Williams. The motion alleged post-indictment delay that violated defendant’s right to a speedy trial. On appeal, the dismissal of the murder indictment was unanimously affirmed. 94 Ill. App. 3d 609.

The issues before this court are: (1) Did a mandamus proceeding on a separate charge toll the statutory period of limitations for trial in the Williams case? (2) Did the trial court err by denying the State’s motion for a continuance and dismissing the indictment on the 158th day of the 160-day statutory term?

A rather detailed recitation of the facts is necessary to portray the sequence of events leading to dismissal of the indictment. On April 29, 1976, defendant was arrested for the January 10 murder of Tony Williams. He remained in custody until May 18, 1977, when he was released on $25,000 bond. During this period, defendant did not seek to advance trial on the charge. From the date of his arrest to November 20, 1977, the case was continued 24 times.

On November 20, 1977, defendant was arrested and charged by information with the armed robbery of Michael Trice. He remained in custody until March 31, 1978, when he was released on $5,000 bond. From November 20, 1977, to July 3, 1978, the Williams murder case (for which the bond remained in effect) was continued 12 more times.

On July 3, 1978, defendant was arrested and later charged with the aggravated kidnaping, armed robbery, and murder of Charles H. McGee. Defendant was never admitted to bail on the three McGee charges and has been incarcerated since July 3,1978.

On August 7, 1978, the trial court revoked defendant’s bond on the Williams murder charge, and the case was continued by agreement until August 28, 1978. In the meantime, on August 8, 1978, defendant pleaded guilty to the Trice armed robbery and was sentenced to six years’ imprisonment.

On December 11, 1978, trial commenced on the McGee charges. On December 22, following a four-day bench trial, defendant was found guilty of the aggravated kidnaping, armed robbery, and murder of Charles H. McGee. The State had requested a death penalty hearing on the McGee murder and on January 29, 1979, the trial court held the Illinois death penalty statute unconstitutional. The State then filed a petition for writ of mandamus before this court. On November 21, 1979, this court vacated the trial court’s order and remanded the cause for a sentencing hearing. (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, cert. denied (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 1603.) On May 7, 1980, defendant was sentenced to 80 years on the murder count, 30 years on the armed-robbery count and 15 years on the aggravated-kidnaping count, the sentences to run concurrently.

From August 7, 1978, to January 29, 1979, the WilHams murder case was continued 19 additional times. On January 29, 1979, defendant for the first time demanded trial in the Williams case. On the State’s motion, the trial court continued the cause to March 19, 1979, when a trial date was to be set. On this date defendant’s trial counsel did not appear and defendant was represented by an associate of his trial counsel. The case was then continued by agreement to March 22, 1979.

On March 22, the State informed the trial court it was still attempting to locate witnesses in the Williams case. In asking for a continuance, the State argued that as a result of the agreed continuance from March 19 to March 22, the statutory period of limitations would expire on July 19 (119 days from that time). The cause was then continued to July 19, 1979. On that date, the State argued for the first time that the statutory term was not running in the Williams case inasmuch as a final disposition had not been rendered on the McGee case. The State contended that section 103 — 5(e) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1975, ch. 38, par. 103—5(e)) allowed it 160 days from the final judgment in the McGee case, which had not yet been rendered.

Alternatively, the State argued that the statutory term was “160 days from March 22nd, 1979 [and] would end August 27th, 1979” (which was actually 158, rather than 160, days later). The State again requested a continuance to locate the missing witness in the Williams case. The trial court continued the case until the next day for a hearing on the State’s efforts to locate the witness.

On July 20, after hearing testimony from two investigators for the State, the trial court concluded that the State had not exercised due diligence in attempting to locate the witness. The State reiterated its earlier argument that the 160-day statutory term in the Williams case began to run when defendant’s attorney demanded trial and would not expire until August 27, 1979. On the State’s motion, the trial court continued the case to August 27, 1979. On that date, the trial court denied the State’s motion for another continuance, concluding that the State had not exercised due diligence and that it had not established any basis for the court to believe that the sought-after witness would be produced within a definite or a reasonable time. The judge then dismissed the indictment in the Williams case based upon the sixth and fourteenth amendments to the United States Constitution.

The appellate court affirmed, concluding that dismissal of the indictment was proper under section 103— 5(e) of the Code. It is the appellate court’s interpretation of that statute that is before us on appeal!

Section 103 — 5(a) of the Code provides that a person shall be tried by a court within 120 days from the date he is taken into custody. (Ill. Rev. Stat. 1975, ch. 38, par. 103—5(a).) Under section 103—5(b), if a person is released on bail or recognizance, he shall be tried within 160 days of his demand for trial. (Ill. Rev. Stat. 1975, ch. 38, par. 103—5(b).) Section 103—5(e) provides:

“If a person is simultaneously in custody upon more than one charge pending against him in the same county *** he shall be tried, or adjudged guilty after waiver of trial, upon at least one such charge before expiration relative to any of such pending charges of the period prescribed by subparagraphs (a) and (b) of this Section. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered ***; if either such period of 160 days expires without the commencement of trial of *** any of such remaining charges thus pending, such charge or charges shall be dismissed and barred for want of prosecution unless delay is occasioned by the defendant *** or by an interlocutory appeal; Provided, however, that if the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.” Ill. Rev. Stat. 1975, ch. 38, par. 103—5(e).

The appellate court concluded, and it is not here in dispute, that at the time defendant pleaded guilty to the Trice armed robbery on August 8, 1978, he was simultaneously in custody on all three charges. Consequently, section 103— 5(e) is applicable and the 160-day limitations period first commenced running on August 8, 1978. However, offenses allegedly committed prior to March 1, 1977, are governed by case law holding that any delay caused by defendant will start the statutory period anew from the date to which the cause has been continued. (See People v. Donalson (1976), 64 Ill. 2d 536, 540; People v. Zuniga (1973), 53 Ill. 2d 550, 553; People v. Lee (1969), 44 Ill. 2d 161, 166.) As the appellate court determined, the three-day, by-agreement, continuance on March 19, 1979, delayed the commencement of the 160-day statutory' term to March 22, 1979.

The State argues that section 103 — 5(e) should be construed to allow an interlocutory appeal in one case to toll the 160-day period in another simultaneously pending case. The State asserts, based on this argument, that the writ of mandamus it filed in the McGee case on January 29, 1979, is in the nature of an interlocutory appeal, which tolled the 160-day statute of limitations in the Williams case. According to the State, the 160-day limitations period in the Williams case was tolled until May 7, 1980, when sentence was pronounced in the McGee case.

This court has often held in statutory construction cases that legislative intent is to be derived primarily from a consideration of the legislative language itself. (People ex rel. Scott v. Schwulst Building Center, Inc. (1982), 89 Ill. 2d 365, 371; Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 350.) In construing a statute, the language should be given its plain and ordinary meaning. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 46; Franzese v. Trinko (1977), 66 Ill. 2d 136, 139. See People v. Dednam (1973), 55 Ill. 2d 565, 568.) As quoted above, section 103 — 5(e) provides that a person “shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered ***; ***.” (Emphasis added.) The independent clause that follows the semicolon then indicates that “if *** such period of 160 days expires without the commencement of trial of *** any of such remaining charges thus pending, such charge or charges shall be dismissed *** unless delay is occasioned by *** an interlocutory appeal.” Ill. Rev. Stat. 1975, ch. 38, par. 103—5(e).

Nowhere does the statute provide that an interlocutory appeal filed in one of the simultaneously pending cases tolls the limitations period in another one of those cases. As defendant’s brief points out, the legislature could have easily added the phrase “in other pending cases” after the words “interlocutory appeal.” Rather, the legislature used the identical language for delineating exceptions for delay that was used in sections 103 — 5(a) and (b), which apply to only one case. In those sections, a case must be brought within the statutory period unless the delay is occasioned by an interlocutory appeal in that case. Moreover, if a defendant is in custody for only two offenses, the exception in section 103 — 5(e) extending the time past 160 days from the judgment in the first case necessarily refers to an interlocutory appeal in the second case — the case in which the time period is not met. There is no language in the statute to imply a different interpretation when more than two offenses are involved. It is consistent with the overall statutory language to conclude that the legislature chose to reduce the State’s burden when more than one offense is involved by giving the State 160 days, rather than 120, from the first judgment.

In this case, as observed by the appellate court, there was no relationship demonstrated between the mandamus action in the McGee case and the delay in the Williams case. Indeed, the State reiterated that its delay in bringing defendant to trial on the Williams murder charge was due solely to its failure to locate and contact a witness. Under the facts and circumstance of this case, we hold that the mandamus proceeding in the McGee case did not toll the 160-day limitations period of section 103 — 5(e) in the Williams case. We note parenthetically that this interpretation of section 103 — 5(e) presents no conflict with our Rule 604(a)(4) (73 Ill. 2d R. 604(a)(4)) cited by the State.

The State also contends that the statutory period was tolled because the mandamus action in the McGee case was attributable to defendant. That exception is delineated in section 103 — 5(e), along with the interlocutory-appeal exception. However, by the same reasoning, there is nothing in the statute to indicate that a delay attributable to a defendant in a simultaneously pending case shall toll the statute in a separate case, particularly where the delay in one case is unrelated to the delay in bringing the second case to trial. Irrespective of the party to whom the mandamus is properly charged, that delay occurred in the McGee case and was not demonstrated to be related to the delay in bringing Williams to trial. Consequently, that exception does not operate to toll the term in the Williams case.

The State next argues that even if the term is not tolled by the mandamus action in the other case, the trial court improperly dismissed the indictment two days before the end of the 160-day period. The State also argues that the trial court abused its discretion when it denied the State’s motion for a continuance at the time of dismissal.

As indicated above, the 160-day term commenced on March 22, 1979. The State is correct in observing that the dismissal of the indictment in the Williams case on August 27, 1979, occurred two days before the expiration of the term. However, as the appellate court pointed out, the source of the miscalculation was the State. The State on two separate occasions informed the trial court that the 160-day term would end on August 27. There is nothing in the record to indicate that either party was aware of the two-day discrepancy. Nor, as the appellate court found, was there any bad faith or subterfuge in connection with this error. Moreover, the State never contended, nor does the record reveal, any realistic possibility that the witness for whom the State was looking could have been found in two days. This court has repeatedly held that section 103 — 5 is to be construed liberally so as to give effect to the constitutional right to a speedy trial (U.S. Const., amend. VI; Ill. Const. 1970, art. I, sec. 8) and each case is to be decided on its own facts (People v. Pearson (1981), 88 Ill. 2d 210, 216; People v. Richards (1980), 81 Ill. 2d 454, 459-60; People v. Fosdick (1967), 36 Ill. 2d 524, 528-29). We conclude that, under the facts of this case, the trial court’s dismissal of the Williams indictment on the 158th day of the term did not constitute reversible error.

With respect to the trial court’s denial of the State’s motion for a continuance on August 27 to locate a witness, it is settled that granting additional time is a discretionary matter. The trial court’s determination is reversible if there is an abuse of that discretion, which depends on the facts and circumstances at the time of the request. (People v. King (1977), 66 Ill. 2d 551, 557; People v. Arndt (1972), 50 Ill. 2d 390, 393; People v. Solomon (1962), 24 Ill. 2d 586, 589, cert. denied (1962), 371 U.S. 853, 9 L. Ed. 2d 87, 83 S. Ct. 94).) Under section 103—5(e), the court may continue the cause if it “determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day.”

In this case, two investigators testified at the July 20, 1979, hearing about their efforts to locate the State’s witness. One investigator stated that in February and March 1979 he went to the witness’ last known address, where he spoke to the landlord, that he went to her mother’s address, and that he checked the post office and the Department of Public Aid for some lead to the witness’ whereabouts. He did not recall performing any investigation with respect to this case after March. The other investigator testified that once, on July 18 (one day before the hearing), he attempted to locate the witness at her last known address, where he spoke to a neighbor, at her mother’s address, and through the Department of Public Aid. He spent a total of approximately 2V2 hours. His testimony indicated, as noted by the trial judge, that this was the only investigation performed in the 119 days from March 22, 1979 (the date of the previous continuance), until July 19. Notwithstanding his belief that the State had not exercised due diligence, at the conclusion of the July 20 hearing the trial judge continued the case to August 27, the date on which the State contended the term would run. In so doing, the judge stated: “[A] reasonable time should be afforded so there will be no question but that all the reasonable opportunities which may be considered to be possible, reasonably have been afforded the State to present some witness before this Court ***.”

On August 27, the State again requested a continuance to locate the witness. The only information the State could produce about her whereabouts was that she was reportedly somewhere in Mississippi and that the State believed it could find her. Thus, after several continuances and approximately six months in which to investigate, the State had not located its witness and even, in requesting another continuance, told the court:

“Judge, all we can do is go out and look for that witness and try to get her. I can’t give you a date. I can’t can’t give you a time. I can’t tell you we have a hundred percent chance of getting her, ninety-nine percent, eighty percent or zero percent. All I can say to this Court, as I would say to any other court or any other judge, is that we are asking for a continuance for the purpose of getting that witness who we believe we have an opportunity to find and bring in. That’s all I can say.”

The record in this case reveals that at the time of the State’s final request for a continuance, there was more than sufficient basis for the trial court’s conclusions that the State did not exercise due diligence and that the State did not establish a sufficient basis for the court to believe the witness would, be produced within a reasonable time. Accordingly, the trial court did not abuse its discretion in denying the State’s motion for a continuance on August 27,1979.

For the above-stated reasons, the judgment of the appellate court, affirming the dismissal by the trial court of the Williams murder indictment, is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: JUSTICE SIMON

license: Public Domain

text:
    (No. 55865.
    PEORIA MOTORS, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Edgar L. Patton et al., Appellees).

      Opinion filed September 17, 1982.
    Rehearing denied November 24, 1982.

      August M. Mangoni, Ltd., of Chicago (August M. Mangoni and Louis G. Atsaves, of counsel), for appellant.
    James L. Hafele, of James L. Hafele, P.C., of Peoria, for appellee Edgar L. Patton.
    McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria (Murvel Pretorius, Jr., of counsel), for appellee Peoria Hydromatic Specialists, Inc.
   JUSTICE SIMON

delivered the opinion of the court:

This is an appeal from a decision of the circuit court of Peoria County confirming an Industrial Commission determination that an injury suffered by claimant was not causally connected with his employment at Peoria Hydromatic Specialists, Inc., the second of claimant’s two employers, but was a recurrence of an earlier injury which arose out of and in the course of his job with his first employer, Peoria Motors, Inc. We affirm the decision below.

On February 24, 1978, claimant, Edgar Patton, while at work for appellant Peoria Motors, felt a sharp pain in his lower back which went down both legs. The pain was so severe that claimant was admitted to a hospital, where he stayed for a month. He left the hospital at the end of March 1978 but was readmitted in May, staying this time for three weeks. Claimant did not return to work and received full temporary total disability payments throughout 1978. In August 1978, still suffering pain, he was readmitted to the hospital, where his physician, Dr. Jesse Weinger, diagnosed a ruptured disc and performed a lumbar laminectomy. This abated the discomfort, and on January 2, 1979, Dr. Weinger cleared claimant to return to work full time as an automobile mechanic, with a followup visit to the doctor to be scheduled in about three months. Peoria Motors did not have any work available for him, however, so he left his job there and found a similar one at Peoria Hydromatic, whose owner was a friend of his.

Claimant felt some discomfort when he went to work for Peoria Hydromatic, and he stated that he could not lift heavy objects for his new employer, as he had for Peoria Motors, because of this discomfort. Dr. Weinger found nothing further on a follow-up visit on March 3, 1979, however, and advised claimant that further treatment was not needed. Pain returned in mid-May, though, and on May 14,1979, after bending over while working on an auto transmission, claimant felt pain severe enough to induce him to see Dr. Weinger again. This time the doctor found a segmental instability of the spine, a condition which he had not noticed before, but did not recommend any new treatment other than rest and local heat, and on May 21 he expressed the opinion that claimant could return to work on a regular basis and that the problem should resolve in time. The problem persisted, causing claimant to miss a few days sporadically, and on August 30, 1979, he asked Dr. Weinger for pain pills. On September 13, 1979, he saw Dr. Weinger again, this visit being prompted by an unusual amount of pain during the preceding week whenever claimant bent forward after lifting an object. Dr. Weinger concluded that the constant strain on claimant’s already weakened back was causing degenerative disc disease and recommended further surgery. On September 25 claimant told Dr. Weinger that he “couldn’t take it any more” and terminated his employment on the doctor’s advice. The next day he entered the hospital, and on September 28 a second laminectomy and a spinal fusion were performed. Recovery thereafter was fairly rapid; Dr. Weinger reported no pain by November 26, 1979. Claimant had to wear a cast following the surgery, however, and although this was apparently removed by January 1980 he still had to wear a brace and did not return to work for Peoria Hydromatic.

Edgar Patton received his regular salary from Peoria Hydromatic for missed days through May 1979. He did not receive any temporary total disability payments or medical benefits from either Peoria Motors or Peoria Hydromatic thereafter, however, and he filed a compensation claim against both employers. At the arbitrator’s hearing Dr. Weinger’s deposition was introduced into evidence. In the deposition, he admitted that the surgical procedure he performed on claimant in 1978 was insufficient and that in retrospect he should have performed the fusion then; he also admitted that degenerative disc disease is aggravated by hard work and that he should have advised claimant earlier not to lift heavy objects. In July 1980 the arbitrator awarded claimant 44s/? weeks’ temporary total disability compensation from Peoria Motors and SO2/? weeks’ compensation from Peoria Hydromatic. The Industrial Commission found that claimant’s 1979 as well as his 1978 injuries were traceable to a single injury suffered while working for Peoria Motors and awarded claimant 754/? weeks’ temporary total disability compensation plus medical expenses from Peoria Motors. Peoria Motors here appeals the Industrial Commission’s finding that claimant’s 1979 injuries were chargeable to it rather than to Peoria Hydromatic as being against the manifest weight of the evidence.

An employer takes his employees as he finds them (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17), and an aggravation of a preexisting ailment is a compensable injury if it arises out of and in the course of employment (Brooks v. Industrial Com. (1979), 78 Ill. 2d 150, 155 (back injury); Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234, 240 (heart disease)). However, it is the responsibility of the Industrial Commission to find facts and draw the inferences necessary to enable it to say that a particular accident did or did not arise out of and in the course of work. Its determination will not be set aside unless contrary to the manifest weight of the evidence. Beloit Foundry v. Industrial Com. (1976), 62 Ill. 2d 535.

In this case there is ample evidence in the record to support a conclusion that no aggravating injury occurred while claimant was working for Peoria Hydromatic. The only doctor to testify expressed the opinion that the spinal instability which he diagnosed in 1979 actually predated claimant’s employment with Peoria Hydromatic and that the spinal fusion which was performed in October 1979 should have been performed at the August 1978 operation, also before the Peoria Hydromatic employment began. When it finally was performed, the spinal fusion cured the recurring pain. The only other witness to testify, the claimant himself, stated that he had back pains from the time he first started work for Peoria Hydromatic, that he always felt discomfort when he bent over or lifted a heavy object, and that the discomfort “seemed like it got worse and worse” as time went on. Claimant did not isolate any one incident as causing greater pain than any other; the most he could point to were occasions on which his back pain flared up with exertion more than at other times. From this testimony, the Industrial Commission could have concluded either that no distinct accident befell claimant while he was working for Peoria Hydromatic or that his back condition was so susceptible to aggravation that any exertion would have been overexertion. Either inference would have been permissible, if not natural. In neither case would Peoria Hydromatic be liable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.2); an accident may not be the product of speculation but must be “traceable to a definite time, place and cause” (Laclede Steel Co. v. Industrial Com. (1955), 6 Ill. 2d 296, 300; Matthiessen & Hegeler Zinc Co. v. Industrial Board (1918), 284 Ill. 378, 383), and an accident which occurs in the course of employment does not arise out of the employment if the claimant’s condition prior to the accident had deteriorated to the point where any normal activity could have aggravated it (see, e.g., Rice v. Industrial Com. (1980), 81 Ill. 2d 544).

Peoria Motors notes that claimant withdrew his claim against Peoria Hydromatic after the arbitrator rendered his award and objects to the fact that the Industrial Commission did not inquire, as the arbitrator apparently had, into the possibility that claimant’s friendship with the owner of Peoria Hydromatic was causing him to side with that employer against Peoria Motors. The effect of deeper inquiry would probably have been at most to discredit claimant’s testimony. Dr. Weinger’s testimony, which also supported Peoria Hydromatic, would have remained. The evidence suggesting complicity between the claimant and Peoria Hydromatic is slight at best, and is certainly not so overwhelming as to render the Commission’s decision to believe Dr. Weinger’s testimony arbitrary. In addition, claimant withdrew his claim against Peoria Hydromatic after that company appealed the arbitrator’s award. This sequence of events might have justified the conclusion that claimant felt more comfortable in the appeal arguing one continuing injury than urging two distinct injuries, particularly in view of Dr. Weinger’s conclusion that the earlier injury accounted for all of the later symptoms. The Industrial Commission was entitled to attribute claimant’s conduct to a desire to simplify the proceedings and speed his own recovéry; claimant’s change in tactics did not require a finding that there was a conspiracy.

Finally,- Peoria Motors takes issue with the fact that the Industrial Commission’s order states that “[tjhere is no evidence” that a work-related accident befell claimant while working for Peoria Hydromatic. It points out that there was some evidence that such an accident occurred and seeks reversal of the award on the ground that, by finding “no evidence,” the Industrial Commission rendered a decision on less than all of the evidence in the record, something which it is not permitted to do. We acknowledge that there is some indication in claimant’s testimony that he lifted heavy objects on several occasions in 1979 and that he felt worse after so doing on some occasions than on others, and we agree that this could be read as some evidence that his condition had stabilized enough to be meaningfully exacerbated by his work for Peoria Hydromatic. We also note, in this regard, that Dr. Weinger remarked at one point that claimant “may have been aggravating his condition” while working for Peoria Hydromatic. However, we do not conclude from the Industrial Commission’s use of the words “[tjhere is no evidence” that it missed these pieces of evidence or failed to consider the possible inferences that could have been drawn from them. It is at least as probable that the words “no evidence” were used to embody the conclusion which the Commission drew in the end, the sum total of all the inferences it drew based on all the evidence. The Industrial Commission’s unusually detailed summary of the case set forth in its order mentions the fact that Dr. Weinger gave claimant a clean bill of health in May 1979 and also states that claimant admitted that he lifted heavy weights on occasion for Peoria Hydromatic; the indication is that the Commission considered these factors along with the other evidence, not that it ignored them. The fact that the owner of Peoria Hydromatic knew of claimant’s condition when he hired him and paid him for missed days through May 1979 may not, as Peoria Motors urges, have been considered by the Industrial Commission, but it is of no significance in a case such as this where bad faith is not alleged and the only inquiry is whether an accident occurred while claimant was working for his current employer or a previous employer. In the absence of a further demonstration that the Industrial Commission missed relevant evidence we will not assume that it did, and we affirm the circuit court judgment confirming the Commission’s decision.

Judgment affirmed.


author: JUSTICE GOLDENHERSH

text:
    (No. 55352.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MICHAEL MORMON, Appellee.

      Opinion filed October 22, 1982.

    Tyrone C. Fahner, Attorney General, of Springfield and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., Assistant Attorney General, of Chicago, and Michael E. Shabat, Georgia A. Buglass, and Joel A. Stein, Assistant State’s Attorneys, of counsel), for the People.
    Steven Clark, Deputy Defender, and Susan Kaplan, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

In a bench trial in the circuit court of Cook County, defendant, Michael Mormon, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—2), rape (Ill. Rev. Stat. 1979, ch. 38, par. 11—1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11—3), and armed violence based on the rape (Ill. Rev. Stat. 1979, ch. 38, par. 33A—2). Defendant was sentenced to concurrent terms of 20 years for rape, 15 years for armed robbery, 25 years for deviate sexual assault, and 20 years for armed violence. The appellate court held that because the convictions for rape and armed violence arose from the same physical act (People v. King (1977), 66 Ill. 2d 551, cert. denied. (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273) the armed-violence conviction, as the less serious of the two offenses, must be vacated. (97 Ill. App. 3d 556, 568.) We allowed the People’s petition for leave to appeal. 73 Ill. 2d R. 315.

The facts are adequately stated in the opinion of the appellate court and need not be repeated here. At oral argument the People conceded that in People v. Donaldson (1982), 91 Ill. 2d 164, this court held that convictions for armed violence and the underlying felony cannot stand if both arise out of the same physical act. The People contend, however, that the facts of this case are distinguishable from Donaldson in that defendant here committed two separate acts, one by using force to coerce complainant into having sexual intercourse, and the other by carrying a weapon while committing the offense. Thus, the People conclude, the use of the weapon constituted a separate use of force to perpetrate the rape and defendant may be convicted of both crimes because there were two separate criminal acts.

We find Donaldson indistinguishable. In Donaldson, a weapon was used to cause the great bodily harm on which the charge of aggravated battery was based. Here, a weapon was used to overcome the complainant’s will. In both cases the use of the weapon was an element of the “force” involved in the offense. In neither case was the use of a weapon an element of the underlying felony.

The People argue, “By holding that only one conviction may stand, the statute serves no purpose” and defeats the legislative intent that a rapist who uses a weapon be more severely punished than a rapist who does not. They argue that because both rape and armed violence are Class X felonies (Ill. Rev. Stat. 1979, ch. 38, par. 11—1(c); ch. 38, par. 33A—3(a)) an armed rapist will receive no greater penalty than an unarmed rapist, thus frustrating the General Assembly’s intent that an additional sentence be imposed.

It is true that where the underlying felony is a Class X felony a defendant who commits the crime while armed will not be subject to an enhanced penalty under the armed-violence statute. While it is apparent that the General Assembly was concerned with the possession of weapons during the commission of felonies, as we said in People v. Donaldson (1982), 91 Ill. 2d 164, 170:

“In the absence of a clear legislative expression to the contrary we hold that multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges.”

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

Judgment affirmed.


author: JUSTICE MORAN JUSTICE UNDERWOOD, JUSTICE GOLDENHERSH, JUSTICE SIMON,

text:
    (No. 56191.
    THE PEOPLE ex rel. RICHARD M. DALEY, State’s Attorney, Petitioner, v. JAMES M. SCHREIER, Judge, et al., Respondents.

      Opinion filed October 22, 1982.

      UNDERWOOD and GOLDENHERSH, JJ., specially concurring.
    SIMON, J., dissenting.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
    James B. Haddad, of Chicago, for respondent James M. Schreier.
    Kent R. Brody, of Chicago, for respondents Susan Sweeney and Maribeth Sweeney.
   JUSTICE MORAN

delivered the opinion of the court:

This is an original action seeking the issuance of a writ of mandamus, or in the alternative a supervisory order, directing Associate Judge James M. Schreier of the circuit court of Cook County (respondent) to sentence respondents Susan and Maribeth Sweeny (defendants) in accordance with this court’s mandate in People v. Sweeny (Oct. 19, 1981), No. 55206.

A chronological account of the proceedings culminating in this action is necessary to an understanding of the case. In People v. Sweeny the defendants were indicted, inter alia, for the offense of knowingly delivering more than 30 grams of a substance containing cocaine, in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 1401(a)(2)). This section codifies the offense as a Class X felony, the penalty for which is a minimum of six years’ imprisonment. Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—1(a)(3).

Following a bench trial, respondent found both defendants guilty in the “manner and form” charged in the indictment. They filed a motion for a new trial, alleging various errors in the proceedings. In particular, defendants claimed that the statutory classification of cocaine as a narcotic was unconstitutional, and therefore the offense was not punishable as a Class X felony. This was the position adopted by the appellate court in People v. McCarty (1981), 93 Ill. App. 3d 898. In ruling on the motion, respondent, by a memorandum of decision, stated:

“The indictment in this case charges, and this court has so found, the defendants with delivering 30 grams or more of a substance containing cocaine. The issue now raised by the McCarty holding is whether this offense is punishable as a Class X felony ***.”

In accordance with the McCarty decision, respondent concluded that the statutory classification was unconstitutional. He therefore held that the Class X felony penalty provision was inapplicable and sentenced defendants as Class 3 felons. Respondent imposed on each defendant a penalty of 30 months’ probation, with six months of periodic imprisonment and a $2,500 fine. All other aspects of their post-trial motion were denied.

Because the trial court held a portion of a statute unconstitutional, the State brought a direct appeal to this court (see 73 Ill. 2d R. 603), challenging respondent’s refusal to sentence defendants as Class X felons. The defendants did not cross-appeal their convictions or sentences. On September 30, 1981, during pendency of the appeal, this court reversed the appellate court decision in People v. McCarty. We there held that the statutory classification of cocaine was constitutional. (86 Ill. 2d 247.) On October 19, 1981, we issued the following supervisory order in People v. Sweeny:

“In the exercise of this court’s supervisory jurisdiction, the portion of the judgment of the Honorable James M. Schreier, Associate Judge of the Circuit Court of Cook County entered on June 25, 1981, in case No. 80-5684, ruling unconstitutional certain portions of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 561/2, par. 1100 et seq.) is reversed, and the sentences entered pursuant to that ruling are vacated. (People v. McCarty (Sept. 30, 1981), No. 54745.) The cause is remanded, to the circuit court with directions to resentence defendants in accordance with law.” (Emphasis added.)

On remand, defendants filed another motion for a new trial, incorporating many of the same grounds as their prior motion. In addition, they alleged that, since they had already served part of a lawfully imposed sentence, it would violate the double jeopardy clause to resentence them to a harsher penalty for the same offense. Further, as to Maribeth Sweeny, it was argued that she had no knowledge that the amount of the substance containing cocaine was more than 30 grams. The State moved to strike the second motion for a new trial on the grounds that the judge lacked jurisdiction to take any action other than that required by this court’s mandate.

On January 22, 1982, pursuant to their motion, respondent granted defendants a new trial. He concluded that because he believed defendants could only be guilty of a Class 3 felony, he failed to afford them a fair trial. The case was transferred to another judge, and the State subsequently requested leave to file the petition in the'instant case.

The issue is whether this court’s mandate, remanding the cause for resentencing only, vested the trial court with jurisdiction to rule upon the second motion for a new trial.

We first consider respondent’s contentions that this is not an appropriate, case for the exercise of original jurisdiction. He argues that the decision to grant a new trial is discretionary, and mandamus will not lie to correct an abuse of discretion. We agree with this statement of the law. (See International Harvester Co. v. Goldenhersh (1981), 86 Ill. 2d 366, 369.) However, the question with which we are concerned is not whether respondent’s order was discretionary or ministerial, but whether he lacked the power to enter it. Mandamus may properly be invoked to expunge a judgment which is void for want of jurisdiction. People v. Sears (1971), 49 Ill. 2d 14, 32; People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 37; People ex rel. Ward v. Salter (1963), 28 Ill. 2d 612, 615; People ex rel. People’s Gas Light & Coke Co. v. Smith (1916), 275 Ill. 210, 215.

It is also argued that mandamus will not lie where, as here, no demand was made upon the trial judge to vacate his allegedly erroneous order. However, it has been held that no demand is necessary where the order sought to be expunged involves the public interest as opposed to a purely private right. (People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 37 and cases cited therein.) Further, we consider the issue presented “to be of considerable importance to the administration of justice” (People ex rel. Carey v. Covelli (1975), 61 Ill. 2d 394, 401). Hence, mandamus may issue even in the absence of all of the normal criteria. People ex rel. Bier v. Scholz (1979), 77 Ill. 2d 12, 16; People ex rel. Carey v. Cov elli (1975), 61 Ill. 2d 394, 401; People ex rel. Carey v. Strayhorn (1975), 61 Ill. 2d 85, 89.

We turn to the question concerning respondent’s jurisdiction to enter the order granting a new trial. As previously noted, our supervisory order directed respondent “to resentence defendants in accordance with the law.” Clearly, our mandate required that defendants be sentenced as Class X felons, and the cause was remanded for this limited purpose. No other action on the part of respondent was required or authorized.

As noted by the State, there are numerous cases which hold that a trial court must obey the clear and unambiguous' directions in a mandate issued by a reviewing court. (PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 305; City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 574; American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1968), 40 Ill. 2d 186, 192-93; People ex rel. Bauer v. Henry (1957), 10 Ill. 2d 324, 325; People ex rel. Barrett v. Bardens (1946), 394 Ill. 511, 515; People ex rel. Campo v. Matchett (1946), 394 Ill. 464, 469; People ex rel. Horberg v. Waite (1909), 243 Ill. 156, 160-61.) “[T]he rule is that ‘[wjhere *** the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed.’ ” (Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, 27-28, quoting from Thomas v. Durchslag (1951), 410 Ill. 363, 365.) Thus, when a reviewing court issues a mandate, it vests the trial court with jurisdiction to take only such action as conforms to that mandate. (See PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 309; Thomas v. Durchslag (1951), 410 Ill. 363, 366; People v. Walsh (1981), 101 Ill. App. 3d 1146, 1147-48; People v. Lowther (1980), 85 Ill. App. 3d 735, 739; People v. Baker (1980), 85 Ill. App. 3d 661, 662.) Any other order issued by the trial court is outside the scope of its authority and void for lack of jurisdiction. (See, e.g., People ex rel. Barrett v. Bardens (1946), 394 Ill. 511.) Indeed, it has been held that even where this court’s directions are erroneous, the trial court is nevertheless required to strictly follow those directions. People ex rel. Campo v. Matchett (1946), 394 Ill. 464, 469.

Respondent seeks to avoid the application of these principles on the ground that our mandate made relevant an element of the offense which he had considered superfluous. Essentially, he contends that under his interpretation of the statute it was irrelevant whether defendants knowingly delivered more than 30 grams of a substance containing cocaine. Since he believed that delivery of any quantity was only a Class 3 felony, he never specifically found defendants guilty of a Class X felony. Respondent asserts that considerations of fairness dictate that defendants receive a new trial before they are sentenced as Class X felons.

This reasoning ignores a critical point. Although respondent may have considered irrelevant the quantity of the substance delivered, he did find that defendants knowingly delivered over 30 grams. Indeed, as previously noted, respondent specifically stated that “[t]he indictment in this case charges, and this court has so found, the defendants with delivering 30 grams or more of a substance containing cocaine.” (Emphasis added.) Further, the defense and prosecution stipulated that 112.7 grams of a substance containing cocaine was delivered to the undercover agent. Although Maribeth Sweeny participated in only one of the sales, the amount involved exceeded 30 grams. Thus, it is clear that if defendants were guilty of any offense, they were guilty of a Class X felony. Finally, respondent deemed it necessary to consider whether the offense in question was constitutionally punishable as a Class X felony. He never would have reached this issue if he did not initially determine that defendants delivered over 30 grams of the substance involved. For these reasons, we find unpersuasive respondent’s assertion that he never found defendants guilty of a Class X felony. Rather, he merely concluded that they could not be punished, as Class X felons.

In this respect, the present case differs significantly from the circumstances presented in People ex rel. Daley v. Limperis (1981), 86 Ill. 2d 459. In that case, the defendants were charged with delivery of more than 30 grams of a substance containing cocaine. Although the evidence clearly supported the charges, the trial court found defendants guilty of delivering less than 30 grams of a substance containing cocaine. The State sought a writ of mandamus directing the trial judges to resentence defendants as Class X felons.

In declining to issue the writ, this court noted that “conviction of a lesser offense operates as an acquittal of a greater offense. [Citations.] Thus, the effect of the judgment in each case was to acquit on the charge of delivery of more than 30 grams of a substance containing cocaine.” (86 Ill. 2d 459, 466.) For this reason, we held that issuance of writs of mandamus would violate the constitutional guarantees against double jeopardy. People ex rel. Daley v. Limperis (1981), 86 Ill. 2d 459, 468.

In the instant case, defendants were found guilty as charged, but respondent failed to impose the proper sentence for the offense. “[T]he sentencing provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1001—1—1 et seq.) are mandatory and mandamus will lie to compel compliance with them.” People ex rel. Daley v. Limperis (1981), 86 Ill. 2d 459, 466; see also People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537; People ex rel. Hanrahan v. Wilson (1971), 48 Ill. 2d 30.

Respondent further contends that, even if he found defendants guilty of a Class X felony, he had a duty to consider whether this finding was erroneous. However, prior to the issuance of our mandate, defendants’ original motion for a new trial was already denied, except for that portion chailenging the constitutionality of the statute. The proper course was for respondent to resentence defendants in accordance with our mandate.

Respondent next asserts that a trial judge may vacate his findings at any time prior to, or for 30 days after, a final judgment. (People v. Heil (1978), 71 Ill. 2d 458, 461.) He correctly notes that a judgment includes both the conviction and sentence (Ill. Rev. Stat. 1979, ch. 38, par. 1005—1—12). From this premise he argues that when this court vacated defendants’ sentences, there was no longer a final judgment. Consequently, respondent allegedly retained jurisdiction over the cause and could properly grant a new trial.

Even if we were to assume the correctness of this proposition, it is not applicable in the instant case. It is irrelevant whether or not respondent had jurisdiction to vacate his findings because there was no longer a final judgment. Respondent’s order failed to comply with our mandate, and for that reason he lacked jurisdiction to enter it.

Accordingly, we hold that a writ of mandamus shall issue directing the respondent to comply with our prior mandate and to resentence defendants as Class X felons.

Writ awarded.

JUSTICE UNDERWOOD,

specially concurring:

I agree that mandamus was appropriate here because the trial court was under a completely nondiscretionary duty — to impose sentence according to law as directed by our mandate (see City of Springfield v. Allphin (1980), 82 Ill. 2d 571, 574; Stuart v. Continental Illinois National Bank & Trust Co. (1979), 75 Ill. 2d 22, 27-28), and mandamus is intended as a means of compelling performance of a nondiscretionary act. People ex rel. Bauer v. Henry (1957), 10 Ill. 2d 324; see also International Harvester Co. v. Goldenhersh (1981), 86 Ill. 2d 366, 369.

JUSTICE GOLDENHERSH,

also specially concurring:

Although I agree with the majority that the respondent judge erred, I do not agree that the circuit court was without jurisdiction to enter the order.

In O’Brien v. People (1905), 216 Ill. 354, the court said:

“Jurisdiction is the power to hear and determine the subject matter in controversy between the parties to a suit. If the law confers the power to render a judgment or decree, then the court has jurisdiction. [Citations.] Jursidiction of the particular matter does not mean simple jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. [Citations.] Whether a complaint does or does not state a cause of action is, so far as concerns the question of jurisdiction, of no importance, for if it states a case belonging to a general class over which the authority of the court extends, then jurisdiction attaches and the court has power to decide, whether the pleading is good or bad. [Citations.] Jurisdiction does not depend upon the rightfulness of the decision. It is not lost because of an erroneous decision, however erroneous that decision may be. [Citations.]” 216 Ill. 354, 363-64.

When the cause was remanded and the mandate issued, the circuit court was vested with jurisdiction to proceed in accordance with the mandate. That jurisdiction empowered it to make the wrong, as well as the right, decision. In failing to follow the mandate it erred. It erred in the course of performing a discretionary act and mandamus is, therefore, not an appropriate remedy. The proper method to correct its action is by supervisory order. See People ex rel. Carey v. Strayhorn (1975), 61 Ill. 2d 85.

JUSTICE SIMON,

dissenting:

I disagree neither with the majority’s view that the circuit court was bound to follow the mandate it received from this court nor with the cases the majority cites in support of that proposition. My difference is with regard to what our supervisory order instructed Judge Schreier to do. Our direction to the circuit court was to resentence the defendants “in accordance with law.”

As I understand the law it affords to a trial judge, so long as he has jurisdiction and for 30 days after sentencing, the opportunity to correct any errors he concludes he has made in a criminal case. This correction can take the form of allowing a motion for a new trial or an acquittal. This was our holding in People v. Van Cleve (1982), 89 Ill. 2d 298, 304-05, and in People v. Heil (1978), 71 Ill. 2d 458, 461.

In Van Cleve we said:

“We consider that a trial judge who has denied a motion for a directed verdict at the close of the evidence can enter a judgment of acquittal following a guilty verdict, if the judge concludes that the refusal to direct a verdict was erroneous.” 89 Ill. 2d 298, 303-04.

Thus, I believe that Judge Schreier properly had jurisdiction to order a new trial for the defendants after this court by its supervisory order vacated the sentence of probation. After that there was no final judgment in this case, for section 5 — 1—12 of the Unified Code of Corrections defines “judgment” as including “the sentence pronounced by the court.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005—1—12.) Because a final judgment had not been entered in the case Judge Schreier retained the inherent power to vacate any of his orders or factual findings at any time prior to (Van Cleve), or for 30 days after (Heil), a final judgment.

The fact that the trial judge had already denied defendants’ motion for a new trial did not preclude considering a second motion or reconsidering the first motion for a new trial during this period. Had it been the intention of this court to issue a supervisory order which precluded the trial court from doing anything other than imposing a sentence of six years or more, I believe that we would have been ignoring the law and the inherent authority of the trial judge to enter such orders as he deems necessary to correct any errors he had made so long as he retains jurisdiction.

I dispute the narrow interpretation that the court gives to the mandate we issued in this case. The majority construes that mandate as permitting only resentencing, but this interpretation ignores the express terms of the supervisory order which directed the circuit court judge to resentence the defendants “in accordance with law.” (Emphasis added.) In this case, “law,” as I construe our order, included the judge’s inherent power to reconsider whether the defendants should have a new trial when he later concluded that he did not give the defendants a fair trial.

This is particularly significant here because of the posture in which the petition for the issuance of a writ of mandamus comes to us. As the majority points out, the supervisory order was required because Judge Schreier, in trying the case, had followed the appellate court opinion in People v. McCarty (1981), 93 Ill. App. 3d 898, which at the time of trial was the controlling law. However, after the trial, and while an appeal in this case was pending in this court, we reversed that appellate court decision. (People v. McCarty (1981), 86 Ill. 2d 247.) The only issue which we considered in entering the supervisory order was whether cocaine could properly be classified as a narcotic. We gave no attention to any objection the defendants might have raised to their conviction on any other ground in the event we held that cocaine was a narcotic. Thus, any errors which defendants may have found in the trial had not been reviewed by any court prior to Judge Schreier’s allowance of a new trial.

I support Judge Schreier’s position not by reference to any of the evidence in this case, but rather on the authority a court has so long as it retains jurisdiction. I see no way in justice and in fairness to circumvent the trial judge’s own statement that he had not given the defendants a fair trial. This was an expression of conscience which I believe our judicial system must respect so long as it was made in good faith. There is no suggestion here that Judge Schreier was acting in any other manner.

For these reasons, and particularly in view of the trial judge’s frank acknowledgment that he had not given the defendants a fair trial, I believe that the writ of mandamus should not issue and that this court should respect Judge Schreier’s order granting a new trial before another circuit court judge as a proper and just order and one entered “in accordance with law.”


text:
    (No. 55561.
    (No. 55595.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FREDERICK RODGERS, Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARVIN REED, Appellant.

      Opinion filed October 22, 1982.

      Miller, Feda and Barbosa, of Elgin (Randy K. Johnson, Esq., of counsel), for appellant Frederick Rodgers.
    Geister, Schnell, Richards & Brown, Chartered, of Elgin (Van R. Richards, Jr., of counsel), for appellant Marvin Reed.
    Tyrone C. Fahner, Attorney General, of Springfield (Michael B. Weinstein and David Cassorla, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE MORAN

delivered the opinion of the court:

Pursuant to their pretrial motions, the circuit court of Kane County dismissed certain counts of the indictments returned against defendants, Marvin Reed and Frederick Rodgers, on the grounds that no evidence was presented to the grand jury in support of those charges. The appellate court reversed and remanded the causes, holding that trial courts lack authority to review the transcript of proceedings upon which an indictment is based. (98 Ill. App. 3d 999.) We granted defendants leave to appeal in these consolidated cases.

The issue is whether a trial court may properly dismiss an indictment, valid on its face, on the grounds that no evidence was presented in support of the charge.

In cause No. 55595, defendant Reed was charged in an 11-count indictment with theft, theft of a motor vehicle, and conspiracy to commit theft. He moved to dismiss counts IX, X, and XI, the conspiracy charges, on the grounds that they were not supported by any evidence. The trial court relied on defendant’s assertion and dismissed these counts without reading the grand jury transcript. Consequently, this transcript was never made a part of the record and is not available for review.

In cause No. 55561, defendant Rodgers was indicted by a different grand jury on the charges of theft, theft of a motor vehicle, and conspiracy to commit theft. He appeared before a different judge and moved to dismiss count III, the conspiracy charge, for lack of any evidence. After reviewing the grand jury transcript, the court granted defendant’s motion. In reversing both causes, the appellate court determined that prior case law and considerations of judicial economy precluded review of the evidence presented to the grand jury.

The State contends that trial courts lack authority to inquire into the transcript of proceedings upon which an indictment is based. It argues that case law precludes any consideration of the adequacy or sufficiency of the evidence presented to the grand jury in support of the charge. Further, the need for a prompt administration of justice prohibits any review of the grand jury transcripts.

Historically, the extent to which defendants have been afforded procedural safeguards during grand jury proceedings has been substantially limited. “Because the grand jury does not finally adjudicate guilt or innocence, it has traditionally been allowed to pursue its investigative and accusatorial functions unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial.” (United States v. Calandra (1974), 414 U.S. 338, 349, 38 L. Ed. 2d 561, 572, 94 S. Ct. 613, 620.) Thus, for example, it has been held that an indictment may not be attacked on the ground that it was based on evidence seized in violation of the fourth amendment (United States v. Calandra (1974), 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613); that it was based on hearsay evidence (Costello v. United States (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406; People v. Creque (1978), 72 Ill. 2d 515, cert. denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010); that it was based on some incompetent testimony (see People v. Jones (1960), 19 Ill. 2d 37, 41); or that no evidence as to an essential element of the offense was presented to the grand jury. (See Annot., 59 A.L.R. 567, 579 (1929), and cases cited therein. But see Brady v. United States (8th Cir. 1928), 24 F.2d 405, 408 (indictment will be quashed unless some evidence on each element of the offense is presented to the grand jury).) In addition, as noted by the State, there are numerous cases which indicate that a court will not consider the adequacy or sufficiency of the evidence. Costello v. United States (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406; People v. Creque (1978), 72 Ill. 2d 515, cert. denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010; see People v. Whitlow (1982), 89 Ill. 2d 322, 331.

Over the years, courts have carved out certain exceptions to the general rule that a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury. One of the well-established exceptions involves situations in which all of the witnesses testifying before the grand jury are legally incompetent. (E.g., People v. Jones (1960), 19 Ill. 2d 37, 41-42; People v. Lambersky (1951), 410 Ill. 451.) Defendants have also been permitted to challenge indictments where there are clear allegations of prosecutorial misconduct (People v. Linzy (1979), 78 Ill. 2d 106, 109; People v. Sears (1971), 49 Ill. 2d 14; see generally Granelli, Defense Peers Into Grand Jury, Nat’l L.J., June 22, 1981, at 1); where the prosecutor’s unsworn testimony is the only evidence presented to the grand jury (United States v. Hodge (5th Cir. 1974), 496 F.2d 87); where the indictment is based on mere suspicion (People v. Hodgson (1957), 6 Misc. 2d 683, 684, 167 N.Y.S.2d 291, 292); and when the grand jurors do not hear all of the evidence presented (People v. Fujita (1974), 43 Cal. App. 3d 454, 478, 117 Cal. Rptr. 757, 771, cert. denied (1975), 421 U.S. 964, 44 L. Ed. 2d 451, 95 S. Ct. 1952; but see United States v. Lang (7th Cir. 1981), 644 F.2d 1232). In a recent opinion, one jurisdiction intimated that grand jury witnesses may soon be permitted to have counsel present during the grand jury proceedings if prosecutors fail to fairly phrase questions posed to the witnesses. United States v. Martellano (7th Cir. 1982), 675 F.2d 940.

The cases which the State cites generally preclude any inquiry into the adequacy or sufficiency of the evidence. However, the cited cases do not address the precise question with which we are confronted: May the grand jury return an indictment unsupported by any evidence, as opposed to inadequate or incompetent evidence? Both the appellate court and the State recognize this distinction, but believe that it is “one without a difference.” We disagree.

“A grand jury’s function is to return an indictment against a person only when the evidence presented to it indicates that he has committed a public offense. It is no Star Chamber tribunal empowered to return arbitrary indictments unsupported by any evidence.” (Greenberg v. Superior Court (1942), 19 Cal. 2d 319, 321, 121 P.2d 713, 715.) Indeed, the grand jury is expected to indict an accused only if it determines that there is probable cause •for believing that he or she has committed an offense. (Ill. Rev. Stat. 1977, ch. 38, par. 112—4(d).) To return a true bill where there is absolutely no evidence connecting the accused to the offense charged would be an abdication of the important responsibility with which the grand jury has been entrusted. See United States v. Costello (2d Cir. 1955), 221 F.2d 668, 677, aff’d on other grounds (1956), 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406.

In the recent case of People v. Whitlow (1982), 89 Ill. 2d 322, the defendants alleged that no evidence of criminal conduct, in support of the charges, was presented to the grand jury. We undertook to review the grand jury transcript and determined that there was evidence from which defendants’ illegal conduct could be inferred. Having determined that there was some evidence in support of the charges, this court declined to inquire into the adequacy of that evidence. Thus, contrary to the State’s assertion, Whitlow impliedly countenanced the type of review now requested.

Further, although there is a split of authority on this question, a number of jurisdictions have held that an indictment will be quashed where there is no evidence which tends to support the charges. (E.g., Brady v. United, States (8th Cir. 1928), 24 F.2d 405; People v. Hodgson (1957), 6 Misc. 2d 683, 167 N.Y.S.2d 291; Greenberg v. Superior Court (1942), 19 Cal. 2d 319, 121 P.2d 713; see Annot., 59 A.L.R. 567 (1929); 42 C.J.S. Indictments & Informations sec. 24(c)(1) (1944).) Indeed, many of the same decisions rejecting challenges to the sufficiency of the evidence suggest that an indictment unsupported by any evidence will be dismissed. See Kamisar, LaFave & Israel, Modern Criminal Procedure 1049 (5th ed. 1980).

To require an individual to defend himself against an empty charge is to ignore one of the primary functions of a grand jury, which is to act as a “shield” against arbitrary prosecutions. (Kamisar, LaFave & Israel, Modern Criminal Procedure 1015 (5th ed. 1980).) “Historically, [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious" and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.” Wood v. Georgia (1962), 370 U.S. 375, 390, 8 L. Ed. 2d 569, 580, 82 S. Ct. 1364, 1373.

We do not find persuasive the State’s further argument that the need for a prompt administration of justice precludes any review of the grand jury transcripts. Concededly, there are important interests in securing the prompt and efficient disposition of cases. However, attaining efficiency at the expense of justice is not an accomplishment to be admired. And it is no answer that an accused’s innocence may be vindicated at trial. “For a wrongful indictment is no laughing matter; often it works a grievous, irreparable injury to the person indicted. The stigma cannot be easily erased. In the public mind, the blot on a man’s escutcheon, resulting from such a public accusation of wrongdoing, is seldom wiped out by a subsequent judgment of not guilty. Frequently, the public remembers the accusation, and still suspects guilt, even after an acquittal.” In re Fried (2d Cir. 1947), 161 F.2d 453, 458-59, cert. dismissed (1947), 332 U.S. 807, 92 L. Ed. 384, 68 S. Ct. 105.

Accordingly, we hold that a trial court has inherent supervisory authority to review grand jury transcripts and determine whether any evidence was presented which tends to connect the accused to the offense charged. (Cf. People v. Linzy (1979), 78 Ill. 2d 106, 109 (trial court has supervisory authority to review grand jury transcripts pursuant to allegations of prosecutorial • misconduct); People v. Lawson (1977), 67 Ill. 2d 449, 455 (trial courts are authorized to dismiss an indictment where there is a clear denial of due process, even though this is not a statutorily authorized ground for dismissal).) In addition, when it is alleged that no evidence was presented to the grand jury in support of the charges, the State shall direct the trial judge’s attention to any direct or circumstantial evidence in the transcript from which an inference of criminal conduct could be derived. This procedure of shifting the burden to the State will satisfy the interests of judicial economy since it will eliminate the need for the trial judge to review the entire transcript. Nor will it be necessary to determine whether any evidence was presented as to each element of the offense. We require only that there be some evidence relative to the charge.

A related question is whether or not the charges dismissed in the instant cases were supported by any evidence. The dismissed count of the indictment returned against defendant Rodgers alleged that he conspired with defendant Reed and Donald Lawson to commit theft, and that he purchased a 1977 Cadillac in furtheranee of the agreement. Under section 8 — 2(a) of the Criminal Code of 1961, “[a] person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator.” Ill. Rev. Stat. 1977, ch. 38, par. 8—2(a).

An investigator for the Illinois Department of Law Enforcement testified that Lawson operated a stolen car ring, dealing in luxury vehicles. In order to conceal the identity of a vehicle, he 'would alter the identification number plate on the dashboard. Normally, one of the last three digits in a plate would be erased, and replaced with a number “one.” Lawson eventually became the target of an investigation, and pursuant to a search warrant, the police recovered from his home a number of business records and blank license applications. One document seized was an application for Illinois license plates in the name of Frederick Rodgers. The vehicle described in the application was a 1977 Cadillac, and it was subsequently determined that the car was stolen. The last digit in the vehicle identification number had been changed to a “one.”

The witness testified that he had interviewed Rodgers regarding his acquisition of the vehicle. At that time, the defendant claimed that he could not recall from whom he purchased the car. He said that he was approached by the seller at O’Hare airport and bought the car, for which he paid in cash, shortly thereafter. Subsequently, defendant provided a receipt naming the person from whom he allegedly purchased the vehicle, but the “seller” could not be located.

Further evidence indicated that defendants Rodgers and Reed are currently employees of the Department of Corrections, and at one time worked together at the same correctional facility. Reed acquired a number of stolen vehicles from Lawson’s employee, which apparently were later licensed to Department of Corrections employees.

From our review of this transcript in cause No. 55561, we find that some evidence was presented to the grand jury in support of count III. We therefore hold that the trial court erred in dismissing this count.

The dismissed counts IX, X, and XI of the indictment returned against defendant Reed in cause No. 55595 alleged that he conspired with various individuals to commit theft. The transcript was never made a part of the record and is not available for review. For this reason, we are unable to make a determination as to whether or not there was any evidence in support of the charges. Consequently, it is necessary.to remand the cause to the trial court with directions to determine whether there is some evidence connecting the defendant tó the counts in question.

We feel the need to emphasize that, on remand in cause No. 55595, the trial court will not be required to read the entire transcript. The burden is on the State to point out where there is any direct or circumstantial evidence from which an inference of criminal conduct could be derived to support the charges.

For the reasons stated herein, rather than those stated by the appellate court, the judgment of the appellate court in cause No. 55561 is affirmed. The judgments of the appellate and circuit courts in cause No. 55595 are vacated and the cause is remanded to the circuit court of Kane County with directions to proceed as herein provided.

55561 — Judgment affirmed.

55595 Judgments vacated; cause remanded, with directions.


text:
    (No. 55861.

      In re RONALD T. KINK, Attorney, Respondent.

      Opinion filed October 22, 1982.

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

delivered the opinion of the court:

On July 25, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a three-count complaint before the Commission charging respondent, Ronald Kink, with professional misconduct. Count I alleged that respondent was negligent in the administration of an estate, and that he made certain misrepresentations in connection with the settling of that estate. Counts II and III charged him with the negligent administration of two other estates. The Hearing Board found respondent guilty only of the three neglect counts, and recommended that he be reprimanded. The Administrator filed exceptions with the Review Board, which subsequently issued a report adopting the findings and recommendation of the Hearing Board.

Two issues are raised on appeal: (1) Did the hearing and review boards err in finding that the misrepresentations alleged in count I were not proved by clear and convincing evidence? (2) Is reprimand an appropriate sanction under the circumstances of this case?

The facts relevant to count I of the complaint are as follows. William Honert died intestate in October of 1974. His estate consisted of a parcel of real estate located in McHenry County, an automobile, and $10,131.90 deposited in a bank account in the name of decedent, as trustee for Joseph Stryszak and Lucille Day. On October 18, 1974, respondent was retained as the attorney for the estate by Stryszak and Day. They informed him that Mary Nelson, one of the decedent’s relatives, was adopted. Respondent indicated that he would need her adoption certificate in order to settle the estate.

In December of 1974, respondent filed a petition for letters of administration. A proof of heirship proceeding was conducted, during which Day testified as to Nelson’s adoptive status. Subsequently, respondent was advised by the court reporter that an order declaring heirship would not be entered until an authenticated decree evidencing the adoption was provided. He was further informed that a failure to produce the decree may result in the testimony at the heirship proceeding being stricken. The adopted heir apparently refused to produce the necessary certificate. However, Stryszak obtained a copy thereof in April of 1976.

According to respondent’s testimony, he later learned' that there were procedures to avoid the requirement of producing the adoption certificate. He could have petitioned either for waiver ■ of the adoption decree or to have the adopted heir’s money deposited with the county treasurer until proper certification was presented. He concedes he never investigated the possibility of an appropriate legal remedy and did not advise the court of his difficulty in obtaining the adoption decree.

The evidence further indicated that a prospective purchaser was procured for the decedent’s automobile. In order to effect the necessary transfer of title, respondent was required to submit an affidavit to the Secretary of State. He stated in the affidavit that no petition for letters of administration was pending, and that there were no creditors of decedent’s estate. In fact, the petition was currently pending, and there was an outstanding doctor bill in the amount of $372. If respondent had acknowledged these circumstances in the affidavit, it is likely that the transfer of title would not have been issued.

Respondent testified that he erroneously believed the letters of administration were no longer pending because he never produced the adoption decree. However, he concedes that he was not informed the proceedings were terminated, nor did he check the court file to ascertain the status of the proceedings. When the Administrator inquired as to the reason, respondent indicated that he may have had a psychological problem and was in a “quandary” as to how to proceed with the estate.

With regard to the omitted doctor bill, respondent claimed that he reached an agreement with the doctor whereby the latter would be paid from the proceeds of the real estate sale described below. Consequently, he did not consider the doctor to be a creditor of the estate. Respondent’s testimony was the only evidence of this agreement. He also indicated that the bill was omitted from an inheritance tax consent form because there was a question as to whether it was covered by insurance.

In August of 1976, Day entered into a contract to sell the real estate in McHenry County. Respondent was aware in September that the purchasers were prepared to close the transaction. He met with Day and Stryszak on May 20, 1977, at which time they signed consents to the sale. On September 12, 1977, respondent informed Stryszak that he had mailed the required consents to the remaining heirs. As of that date, however, he had not done so.

Three days later, Stryszak filed a complaint with the Disciplinary Commission, alleging respondent’s failure to close the estate and to respond to Day’s inquiries. On October 31, 1977, respondent gave Day the consents to obtain the signatures of the remaining heirs. On the same day, he informed the Commission that his client received the consents and would return them, executed, on November 14, 1977. He further indicated that he would file the petition that week. In apparent reliance on respondent’s representations, the Commission subsequently closed its investigation. However, when Day appeared at respondent’s office on the appointed date, he was not present. The petition was never filed.

In December of 1978, Day and Stryszak filed another complaint with the Disciplinary Commission, alleging that the estate was still not closed and taxes were unpaid, The following December, 1979, a complaint was voted against respondent. As of that date, he had not filed any pleadings in connection with the estate since 1974, or obtained the necessary approval for the sale of the real estate. He did, however, accept a $575 fee, $500 of which was attributable to his services performed in connection with the estate. Following the institution of the second complaint, respondent’s clients discharged him and retained another attorney.

The evidence relevant to count II of the complaint indicates that, in April of 1972, William Rachner spoke with respondent concerning the estate of his deceased father, Rudolph Rachner. At the time of his death, the decedent owned two parcels of real estate, stock in two corporations, and an interest as a joint tenant in two savings accounts. Rachner’s will left 50% of his property to his daughter, Grace, 40% to his son, William, and 10% to his grandson, Wayne Kofron. Grace and William each resided in the two homes which decedent owned.

Because there were few assets to be distributed, respondent suggested that the estate be settled by means of a bond in lieu of probate. He advised William and Grace to purchase the homes, and divide the proceeds according to the terms of the will. Kofron, however, demanded a one-third share of the estate and insisted that probate proceedings be instituted. In addition, Kofron withdrew all of the funds from one of the savings accounts, which he held jointly with the decedent and Grace. Respondent notified Kofron that unless the funds were returned by February 5, 1974, he would institute judicial proceedings. Kofron did not respond, and respondent never instituted proceedings against him. Respondent explained that he believed there was no cause of action on behalf of the estate and the only remedy was for Grace to file suit if she desired.

Probate proceedings were initiated in July of 1975, and as of December 1979 the estate was still not closed and tax proceedings were never instituted. Respondent asserts that the proceedings were delayed because Grace, who was serving as executor of the will, suffered a nervous breakdown. In September of 1975, William was appointed as personal representative. In addition, respondent was advised by William that he was having marital problems, and to suspend further action temporarily. There is conflicting testimony as to when respondent was so advised, and when William informed him to continue proceedings. Respondent testified that he was told to suspend further action in 1976 and to proceed again sometime later that year. We note that, in his amended answer, respondent stated that he was told to continue proceedings in 1978. William testified that he informed respondent of his marital problems in 1975, and requested, about one month later, that he proceed.

With regard to count III, the evidence established that, in May of 1978, respondent was retained by Lenore Passow to settle the estate of her deceased sister, Alice Butler. At the time of her death, the decedent owned an undivided one-half interest in certain real estate, and approximately $70,000 deposited in a number of savings accounts. Respondent instituted probate proceedings on June 15, 1978. A few days later he informed Passow that he would arrange for prompt payment of the funeral bill. He never did, however, and in August of 1978 his client paid the bill, with interest, from her own funds.

Respondent obtained inheritance tax releases for the savings accounts in November of 1978. He testified that the delay was attributable to the amount of work in which he was involved. Apparently, several months elapsed after the releases were secured before respondent submitted to certain heirs the funds to which they were entitled.

In January of 1979, the real estate was sold and respondent appeared at the closing on behalf of the estate and the owners of the other one-half interest in the property. Respondent withheld from the proceeds of the sale an amount equal to the estimated inheritance tax, $600 as his fee for services related to the sale, $256 as reimbursement for costs advanced, and $2,500 as his fee for services rendered to the estate.

Respondent listed as one of his costs advanced a $65 appraisal fee in connection with the real estate sale. In fact, Passow had already paid the fee and so advised respondent. He informed her that he would investigate the matter and send her a check for any reimbursement due. He did so, but not until August of 1979. Respondent testified that he had assumed he paid the fee because it was his custom and practice to do so. The estate was closed in November, 1979.

The Administrator first contends that the misrepresentations alleged in count I were proved by clear and convincing evidence. He asserts that respondent purposefully submitted the false affidavit, and lied to this client regarding the consent forms, in order to conceal his neglect in handling the estate.

The findings of the Hearing Board are entitled to substantially the same weight as that of any trier of fact with respect to the resolution of factual matters. (In re Feldman (1982), 89 Ill. 2d 7, 10; In re Mandell (1982), 89 Ill. 2d 14, 23.) “Where the question is the credibility of witnesses, resolution of conflicting testimony, or other such fact-finding judgments, the hearing panel should be afforded a good deal of deference.” (In re Hopper (1981), 85 Ill. 2d 318, 323; see also In re Chernoff (1982), 91 Ill. 2d 316, 324-25.) Here, respondent’s conduct in filling out the affidavit could be interpreted as either fraudulent or innocent. The Hearing Board chose to accept respondent’s version of the events, and we see no reason to upset its findings. We recognize that the Hearing Board failed to address the question of the doctor bill omitted from the affidavit. Instead, it determined that respondent did not fraudulently conceal the bill from the petition for inheritance tax consents. On this point, we are not prepared to hold that the alleged misrepresentation was proved by clear and convincing evidence.

Less reasonable is the Board’s conclusion that respondent’s statement to Stryszak was not deceitful. Respondent concedes that he made the statement, that it was untrue, and he offers no explanation therefor. From our review of the record the Administrator did establish, by clear and convincing evidence, that the respondent’s comment to his client constituted a misrepresentation.

We turn now to the question of what sanction should be imposed. Respondent concedes that he was negligent in his handling of the three estates, and does not assert that discipline would be inappropriate. Rather, he urges that we adopt the recommendations of the hearing and review boards and order that he be reprimanded.

Although the recommendations of the boards may be considered, still “the final responsibility for imposing discipline rests with this court.” (In re Schuyler (1982), 91 Ill. 2d 6, 18; In re Sherman (1975), 60 Ill. 2d 590, 593.) In determining the appropriate sanction, we must consider all the facts and circumstances. “Nevertheless, where the facts are similar to those in other cases, a uniform standard of discipline should be sought.” In re Feldman (1982), 89 Ill. 2d 7, 11; In re Clayter (1980), 78 Ill. 2d 276, 283.

Our review of the relevant cases fails to reveal any in which a reprimand was imposed for misconduct similar to that involved in the instant case. Respondent has manifested a lack of care in his dealings with three separate clients, two instances of which extended over a period of years. It is clear that he was less than candid with at least one client. There is also evidence -that he remained inaccessible despite attempts to contact him. As a result of respondent’s dilatory conduct, certain clients did not promptly receive the estate funds to which they were entitled. Under these circumstances, we cannot agree with the hearing and review boards that a private reprimand is sufficient discipline. .

“The traditionally high standards of the legal professsion impose upon an attorney the duty to represent a client with zeal and diligence.” (In re Chapman (1978), 69 Ill. 2d 494, 501.) This, respondent has clearly failed to do. However, we recognize that his misconduct was apparently not prompted by a dishonest motive, which is a factor to consider in determining the severity of the discipline. (In re Clayter (1980), 78 Ill. 2d 276, 283.) In cases where, as here, an attorney’s misconduct consists of negligence or mistaken judgment, censure or suspension are appropriate sanctions. (In re Saladino (1978), 71 Ill. 2d 263, 276.) The Administrator, in reliance on this court’s opinion in In re Taylor (1977), 66 Ill. 2d 567, argues that respondent should be suspended from the practice of law for at least one year.

In Taylor, the Administrator filed a four-count complaint charging respondent with professional misconduct. Count I alleged that respondent was retained to represent a defendant in a criminal matter but never appeared at the scheduled hearing. Count II charged that he accepted a fee to represent a woman in initiating divorce proceedings. He never commenced the action. The Hearing Board found insufficient evidence to support the third count. Count IV alleged that he was retained in a wrongful death case but failed to take any action other than enter an appearance on his client’s behalf.

This court, after noting “that respondent’s actions show a pattern of consistent neglect” (66 Ill. 2d 567, 572), ordered that he be suspended from the practice of law for a period of one year. Significantly, the opinion recited no circumstances which would tend to mitigate or explain respondent’s misconduct. There was also a strong indication that respondent was untruthful in his testimony before the Hearing Board.

These factors serve to distinguish In re Taylor from the instant case. Here, the Board specifically found that respondent was cooperative and candid during the proceedings, a circumstance which is “of some significance in determining the punishment to be imposed.” (In re Damisch (1967), 38 Ill. 2d 195, 208.) Although respondent was negligent and dilatory in representing his clients’ interest, he did render some services on their behalf. In addition, a number of witnesses testified as to his excellent reputation in the community, and he has an outstanding record of involvement in civic and religious programs.

We note also that the building in which respondent’s former law office was located caught fire in 1975 or 1976, and he was forced to relocate. The Hearing Board determined that this circumstance disrupted respondent’s “already disorganized practice.” For these reasons, In re Taylor is inapposite to the instant case.

We also find distinguishable other cases in which respondent was suspended for similar misconduct. In In re Chapman (1978), 69 Ill. 2d 494, respondent failed to prosecute three appeals. In two appeals, the client was not damaged by respondent’s neglect. However, because of respondent’s dilatory conduct, the other client was denied an appeal. In addition, respondent manifested a greater lack of candor in dealing with his client than is evidenced in the instant case. He also failed to pay his attorney registration fee until the hearing commenced, and failed to respond to the Commission’s letters pertaining to the charges. The court recited certain mitigating factors and ordered respondent suspended for three months.

The respondent in In re Simpson (1971), 47 Ill. 2d 562, suffered a one-year suspension for accepting fees from two clients for work which he failed to perform. However, the court specifically found that respondent’s conduct involved moral turpitude because he intended to retain for his own use the unearned fees. Finally, in In re Levinson (1978), 71 Ill. 2d 486, the respondent failed to prosecute an adoption proceeding for which he had been paid. In ordering him suspended for six months, this court noted that he also misrepresented certain facts to his clients, failed to pay his attorney registration fee, and did not file an answer or appear before the hearing and review boards.

We find the circumstances involved in In re Ahern (1961), 23 Ill. 2d 69, more closely analogous to the instant case. There, respondent failed or neglected to fully perform services for which he was paid in six separate instances. Although this court noted that suspension could be a proper sanction, it determined that censure was sufficient discipline. The court recited as mitigating factors the illness of his child, the death of his wife, and respondent’s prior unblemished reputation.

Respondent’s conduct in the instant case was not more egregious than that involved in In re Ahern. Further, respondent has now joined a law firm and believes that the new association will eliminate future instances of neglect. He has also disengaged himself from certain civic commitments, having realized they interfered with his practice. The Hearing Board has determined that “it is unlikely that events of this kind will happen again.”

“The purpose of a disciplinary proceeding is to safeguard the public and maintain the integrity of the legal profession.” (In re Levin (1979), 77 Ill. 2d 205, 211.) We do not believe that either of these purposes will be served by suspending respondent. Accordingly, it is ordered that respondent be censured.

Respondent censured.