author: MR. JUSTICE SIMON

text:
    (No. 54256.
    (No. 54636.

      In re J. W., a Minor, Appellee (The People of the State of Illinois, Appellant).—In re LOWELL CHATMAN, a Minor, Appellee (The People of the State of Illinois, Appellant).

      Opinion filed November 20, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Edward Keefe and James T. Teros, State’s Attorneys, of Rock Island (Herbert Lee Caplan, Melbourne A. Noel, Jr., Thomas E. Holum, and Neal B. Goodfriend, Assistant Attorneys General, and Jay D. Stein, law student, of Chicago, and John X. Breslin, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
    Tyrone C. Fahner, Attorney General of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., and Thomas E. Holum, Assistant Attorneys General, of Chicago, and Michael E. Shabat, Stephen Y. Brodhay, and Marcia B. Orr, Assistant State’s Attorneys, of counsel), for the People.
    Percival Harmon, of Washington, Kennon, Hunter & Samuels, of Chicago, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

After finding Lowell Chatman, appellee in cause No. 54636, to be a delinquent minor, the circuit court of Cook County allowed his motion in arrest of judgment, deciding that it lacked jurisdiction. We permitted the State to appeal directly to this court under Rule 302(b) (73 Ill. 2d R. 302(b)).

The issue is whether the juvenile court could properly hold an adjudicatory hearing without serving notice upon the minor’s father by publication. The petition for adjudication of wardship identified the father as “unknown.” The minor is illegitimate and seems to have had no contact whatever with his biological father. The record is unclear whether anyone knows who the father is; it is clear that no one knows where he is. The State did not attempt to serve notice by publication. The minor’s mother was not formally served either, but she appeared at both the detention and adjudicatory hearings, she attended court every day of the proceedings, and she testified as a witness for her son. At the detention hearing, the minor was represented by the public defender; private counsel was then appointed and has represented the minor at all subsequent proceedings. At no time before or during the adjudicatory hearing did anyone object to the proceedings or demand publication of notice. The mother died after the adjudicatory hearing, and no father has yet been found.

The unknown father is a stranger to the minor. If alive, he knows nothing of the minor or of the facts to be adjudicated. The minor could not reasonably repose in him any special trust or confidence. The minor has not suggested how the father’s presence could have aided his defense, and the father’s absence was not, therefore, unfair to the minor. The minor had the assistance of his mother, who was his only known parent and his sole custodian, as well as of legal counsel; the minor, the mother, and counsel all had adequate notice of the charges and an opportunity to defend against them. The failure to publish notice to the phantom father did not deprive the minor of liberty without due process of law, much less deprive the court of jurisdiction over the person of the minor.

The court, then, had jurisdiction of the subject matter and of the persons of the minor and his mother, but not of the person of the father. The father, although mentioned anonymously as a respondent in the petition for adjudication of wardship, was never properly made a party. For several reasons, however, he is not an indispensable party; it was proper to go forward with the delinquency proceedings in his absence.

The father is not being deprived of any substantial rights. Even if he still has, after years of abandonment, some parental rights or status, no one in the delinquency proceeding here at issue contemplates depriving him of them. If the minor is adjudged a ward of the court, his parents may lose custody; but the father does not have custody, never did have it, and at the time of the adjudicatory hearing had no prospect of getting it. Thus, the court could proceed without unfairly jeopardizing the interest of the absent father.

The minor, his mother, and the State all have vital interests at stake here, interests that overwhelm the speculative interest of the anonymous father. The minor, in particular, has a right to a speedy adjudicatory hearing. The father’s absence should not prevent that adjudication or necessitate a time-consuming, expensive, and predictably futile fiction of service by publication.

We note that determining the rights of those before the court in the absence of others whose interest might be impaired and by whom the judgment might later be attacked is not an unrecognized procedure in the law. Rule 19 of the Federal Rules of Civil Procedure, promulgated by the United States Supreme Court, allows for a pragmatic approach to the problem of necessary parties, and a mistake in the decision to proceed does not deprive the court of the power to adjudicate as between the parties before it. 28 U.S.C. Fed. R. Civ. P. 19, Notes of Advisory Committee on 1966 Amendments to Rules (1976); Annot., 21 A.L.R. Fed. 12 (1974).

We conclude that the facts of this case afford no grounds for considering the adjudicatory hearing and the finding of delinquency invalid, erroneous, or unfair.

The problem is that failure to give adequate notice to parents with a more significant relationship with the minor than the father in this case may be unfair to both the parent and the minor. Unquestionably, an adjudication of wardship without notice to parents may in some cases deprive both parent and child of liberty without due process of law (In re Gault (1967), 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428), and be absolutely void (People ex rel. McEntee v. Lynch (1906), 223 Ill. 346). Unfortunately for courts, family relationships vary greatly, and a decision about whether to publish notice must be made early in the proceedings, without exhaustive investigation.

Fortunately, the question has been generally settled by statute. The Juvenile Court Act sets out the proper procedure for protecting the interests involved. Every parent, legal guardian, and custodian, or when necessary the nearest relative, must be named as a respondent in the case. (Ill. Rev. Stat. 1979, ch. 37, par. 704 — 1.) Each is to be individually served, if possible; if that is not feasible, service must normally be had by publication. (Ill. Rev. Stat. 1979, ch. 37, pars. 704 — 3, 704 — 4.) Section 4 — 4, however, goes on to say that “[n]otice by publication is not required in any case when the person alleged to have legal custody of the minor has been served with summons personally or by certified mail, but the court may not issue any order or judgment against any person who cannot be served with process other than by publication unless notice by publication is given or unless that person appears.” Ill. Rev. Stat. 1979, ch. 37, par. 704-4(2).

In this case, the minor’s mother did not have legal custody of the minor, because their relationship was not defined by an order of court (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12). She did, however, maintain actual sole custody, and we think that is good enough. No court order was obtained simply because as the mother she had a prima facie right to custody which no one had ever challenged. An illegitimate father who has played no role in raising the minor cannot have any greater rights or be more important to the minor than a father who married the mother, lived in the family for a while, but at some point lost legal custody in a divorce or by other means. When someone not only does not share in the custody of the minor, but has so little contact with the minor that he does not learn of the minor’s danger and cannot after diligent search be found, his interest is sufficiently slight that he should not be treated as an indispensable party; and the absence of such a comparative stranger does not deprive the minor of any substantial protection if the minor has the assistance of his custodian, the person on whom he relies for other important decisions in his life. The legislative decision that such respondents need not be served by publication is a sensible and fair way to draw the line between those who must be served and those who need not be, and we see no reason in policy to distinguish between cases of custody by court order and cases like this one of permanent exclusive actual custody by nature and default.

The father being undiscoverable, notice to the custodial mother was enough. In fact, at oral argument the minor agreed that if his mother was properly served, section 4 — 4 excused publication to the unknown and therefore individually unservable father. The minor’s argument before this court is that the mother had not been formally served either. But we do not read section 4 — 4 as demanding useless formality. The mother had actual notice of the charges against her son and the correlative threat to her own rights; she appeared in court and participated actively in the proceedings without objection. She thereby waived formal service of process and submitted to the jurisdiction of the court. The lack of formal service in no way prejudiced the minor or his mother. Considerations of fairness are all on the State’s side: the respondents should not be permitted to have an adjudicatory hearing, hoping for a finding in their favor, and if they lose get a second chance by complaining of formal defects in service of process that could and should have been objected to immediately, could have been easily cured if timely objected to, and made no difference anyway.

There was no impropriety in holding the adjudicatory hearing without publication. The circuit court therefore erred in allowing the motion in arrest of judgment and vacating the finding of delinquency on that ground.

Ironically, however, publication will be necessary upon remand. This cause has not yet been disposed of. Additional proceedings must occur in the juvenile court, and the minor’s mother is no longer there to stand with him. The minor’s mother has died. He is no longer in her custody. Notice to and participation by her in the past is therefore no longer sufficient under section 4 — 4. In fact, the minor does not now appear to have any custodian or guardian. His father may be the only adult in the world from whom he can claim or hope for any loyalty or help whatever. Even a slight hope is better than nothing. Moreover, the court’s disposition of the minor may be influenced by whether there is any adult willing to take responsibility for him; and the father may be the only candidate.

The order of the circuit court in cause No. 54636 is reversed, and the cause is remanded for further proceedings. ,

In cause No. 54256, J. W., a minor, was sentenced to an indefinite term of probation by the circuit court of Rock Island County, and his probation was later revoked. The appellate court reversed the revocation, holding the juvenile court lacked jurisdiction due to the failure to notify the minor’s father of the revocation proceeding. (89 Ill. App. 3d 150.) After allowing the State’s petition for leave to appeal, we decided in In re T. E. (1981), 85 Ill. 2d 326, that judgments placing juveniles on probation for indefinite terms are void. This argument was made by the minor in the appellate court in this case, but because the appellate court disposed of the appeal on another ground, it did not reach this issue.

The minor has moved in this court for summary disposition of this appeal based upon our decision in In re T.E., and that motion was taken with the case. The appeal in cause No. 54256 is clearly controlled by In re T. E., and it is, therefore, unnecessary to reach the issue considered by the appellate court. Consequently, we vacate the judgment of the appellate court, reverse the judgment of the circuit court and remand this cause to the circuit court for further proceedings consistent with In re T. E.

54256 - Appellate court vacated; circuit court reversed; cause remanded.

54636 - Order reversed; cause remanded.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 54187.

      In re MARRIAGE OF JEANETTA E. LEE, Appellee, and HARRY F. LEE, Appellant.

      Opinion filed November 20, 1981.

      John F. Boos, of Peoria, for appellant.
    James Lewis, of Peoria, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The circuit court of Peoria County awarded plaintiff, Jeanetta Lee, $6,000 as her share of the proceeds derived from the sale of a residence owned by defendant, Harry Lee, at the time of their marriage. The appellate court, with one justice specially concurring in the results, affirmed, holding that defendant’s nonmarital property was commingled with marital property, thereby transmuting the entire property into marital property. 88 Ill. App. 3d 1044.

The first issue raised is whether the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.) provides for the “transmutation of property” theory utilized by the appellate court. Then, we must determine if the trial court erred in awarding plaintiff one-half of the net proceeds attributable to improvements made to the residence during her marriage to defendant.

On November 1, 1978, after five years of marriage, the trial court granted a dissolution to the parties. At the subsequent hearing regarding distribution of property, the evidence revealed that, prior to his marriage, defendant owned a residence in Peoria valued at $12,500. Plaintiff had no legal interest in the house. The parties lived in this home while they were married, during which time $20,000 was expended upon improvements to the residence. Of this $20,000, $12,000 was paid from marital funds and $8,000 was borrowed. Subsequently, defendant sold the house to his adopted daughter for $32,500, a figure which was arrived at by adding the purchase price to the $20,000 in improvements.

The trial court found the value of the residence to be $32,500. It concluded that $12,500 (the acquisition price) was nonmarital property and that after the $8,000 loan was deducted, $12,000 in improvements constituted a species of marital property, of which plaintiff was entitled to half as her share of the proceeds. The appellate court held that the entire property was transmuted into marital property, which should be apportioned according to the contribution of each party. It found that the trial court erred in terming the original value of the residence nonmarital, yet upheld the circuit court’s ruling because “it had the same practical effect of recognizing [defendant’s] original contribution to the value of the property.” The court then found that, in the absence of any evidence showing that one spouse contributed more than the other, the trial court’s distribution of the net proceeds realized from the improvements was proper. 88 Ill. App. 3d 1044, 1047.

As we recently held in In re Marriage of Smith (1981), 86 Ill. 2d 518, 531-32, where there has been contribution of marital property to nonmarital property, the entire property is rebuttably presumed to be transmuted to marital property.

Defendant argues the improvements represent an increase in value of property acquired before the marriage and are, therefore, nonmarital property under section 503(a)(5). He asserts that the increase in value of the residence is no different than an increase in value by appreciation which this court held to be nonmarital property in In re Marriage of Komnick (1981), 84 Ill. 2d 89, and Bentley v. Bentley (1981), 84 Ill. 2d 97. Defendant also argues that plaintiff made no contribution to the improvements. Plaintiff argues that the $12,000 in improvements came out of marital income, and that she is entitled to a share of the proceeds received for those improvements.

Under section 503(b), the presumption is that all property acquired by either spouse after marriage is marital property. In In re Marriage of Komnick (1981), 84 Ill. 2d 89, and Bentley v. Bentley (1981), 84 Ill. 2d 97, that presumption was overcome when it was shown that the increase in value of property acquired before the marriage was “substantially attributable to external economic factors and not to any capital improvements made upon the land.” (In re Marriage of Komnick (1981), 84 Ill. 2d 89, 92.) The rationale underlying Komnick was that appreciation in value of property acquired before marriage is nonmarital because it increased in value without any enhancement on the part of the marital parties. The court in Komnick clearly indicated that the decision was limited to an increase in value due solely to inflationary factors. 84 Ill. 2d 89, 95.

Here, the increase in value was not attributable to inflationary factors; it was clearly the result of contribution by the parties. The record reveals that the improvements to the home were made during the marriage while plaintiff and defendant resided there. Twelve thousand dollars in improvements came from marital income, the remainder from a loan. While married, the plaintiff worked as a secretary earning between $80 and $125 per week. This income was used primarily for family and household expenses. Plaintiff testified that in addition to working eight hours a day, she cleaned house, did the laundry, cooked the meals, and took care of two children from her previous marriage. We hold the $12,000 in proceeds attributable to the improvements to which both parties contributed constitutes marital property, thereby creating the presumption, unrebutted in this case, that the entire residence was transmuted into marital property. See In re Marriage of Smith (1981), 86 Ill. 2d 518. After property has been characterized as marital property, it is apportioned taking into account each spouse’s contributions, as well as the other enumerated factors under section 503(c). We conclude that when plaintiff’s contributions are taken into account under section 503(c), the trial court was not in error when it awarded her $6,000 of the proceeds realized from the improvements.

On the basis of the views expressed herein, the judgment of the appellate court is affirmed.

Judgment affirmed.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 54392.

      In re MARRIAGE OF JAMES PATRICK MUSSER, Appellant, and MARGARET MONA MUSSER, Appellee.

      Opinion filed November 20, 1981.

      Hull, Campbell, Robinson & Gibson, of Decatur (Michael I. Campbell and Thomas W. Gendry, of counsel), for appellant.
    Tenney, Tietz & Heavner, of Decatur (Richard L. Heavner, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent, Margaret Mona Musser, appealed from the order of the circuit court of Macon County modifying its previous order entered in proceedings following the dissolution of her marriage to petitioner, James Patrick Musser. The appellate court reversed and remanded (90 Ill. App. 3d 18), and we allowed petitioner leave to appeal.

In the original judgment of dissolution of the marriage petitioner was ordered to pay respondent $30 per week child support and $50 per month for one year as maintenance. Petitioner was also awarded his military retirement pension as his exclusive nonmarital property. Respondent appealed, and the appellate court reversed and remanded. (70 Ill. App. 3d 706.) On remand the circuit court, in compliance with the appellate court’s mandate, modified the original order by awarding respondent a portion of the military retirement- pension. On the same day that the docket order was entered effecting the modification, petitioner filed a motion under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3). The circuit court, upon allowance of that motion, again awarded petitioner the entire pension. The appellate court reversed with directions to the circuit court to reinstate the order granting respondent 45% of the net monthly benefits from the military pension. The present appeal is from this order.

The principal issue in this case has been resolved by the decision of the Supreme Court in McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728. We need not lengthen this opinion with a discussion of the rationale of the Supreme Court’s opinion; it suffices to say that it was held that the retired pay of military personnel is a personal entitlement and that Federal law precludes a State court from dividing military nondisability retired pay pursuant to State law.

The only remaining question argued in the briefs is respondent’s contention that upon remand the circuit court was without authority to consider evidence of events occurring subsequent to the entry of the order of dissolution, upon which evidence the order awarding petitioner his entire pension was based. In view of our conclusion that the decision in this case is governed by McCarty, we need not and do not consider this latter contention.

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

Appellate court reversed; circuit court affirmed.


text:
    (No. 53915.
    JOHN IVLOW, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Westclox Division of Talley Industries, Appellee).

      Opinion filed November 20, 1981.

      Anthony C. Raccuglia & Associates, of Peru, for appellant.
    O’Conor, Karaganis & Gail, Ltd., of Ottawa (Andrew J. O’Conor, Sanford R. Gail, and Bruce White, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

An arbitrator for the Industrial Commission found that petitioner, John Ivlow, sustained accidental injuries arising out of and in the course of his employment by respondent, Westclox Division of Talley Industries, and that the disabling condition was temporary and had not yet reached a permanent condition. Petitioner was awarded $105.50 per week for a period of 64 weeks and $83.20 per week for a further period of 80 6/7th weeks of temporary total incapacity. (Ill. Rev. Stat. 1977, ch. 48, par. 138.19(b).) No review was taken from this award. Approximately 13 months later a second award was entered by another arbitrator, awarding petitioner compensation for a period of 64 weeks and for the further period of 60 weeks for the reason that he had sustained a fracture of the skull. Petitioner sought review, and the Industrial Commission modified the award by awarding an additional 47 weeks of compensation for the 20% loss of use of petitioner’s right arm. In all other respects the arbitrator’s award was affirmed. The circuit court of La Salle County confirmed the decision of the Commission and petitioner appealed. 73 Ill. 2d R. 302(a).

Petitioner contends that the decision of the Industrial Commission was against the manifest weight of the evidence. He argues here that the judgment should be reversed and the cause remanded to the Industrial Commission “for further proceedings as to the nature and extent of his injuries” but does not articulate any specific award he considers would be appropriate under the evidence.

The testimony shows that petitioner was thrown from a forklift and sustained injuries to his head, neck and back. He was hospitalized for a period of 13 days. He testified that upon release from the hospital he experienced difficulty in walking and suffered from dizziness. He was seen by a physician at regular intervals. He has not been employed since the injury and apparently is now receiving social security benefits. He still complains of pain in his right arm and dizziness.

A medical report offered in evidence at the second arbitration hearing stated that after “initial treatment” a diagnosis was made that petitioner had suffered a skull fracture, a moderate to severe brain concussion, severe contusions to the cervical spine and right elbow, severe sprain and contusion to the right shoulder, and a perforation of the right ear drum. In a medical report dated several days prior to the second hearing, petitioner’s condition was described as “stable.” The report stated that the petitioner complained of loss of balance to the right side, dizziness, discomfort in the right ear, moderate to severe pain in the right neck, and severe fatigue. It reported that petitioner had suffered a contusion to the right neck with secondary neuralgia, showed evidence of osteoarthritic formations in the cervical spine and an old healed fracture, and also suffered from moderate to severe hypertension.

This court has repeatedly held that it is the accepted rule that it is the responsibility of the Industrial Commission to determine questions of fact, including the nature and extent of the disability suffered. (Bishop v. Industrial Com. (1980), 78 Ill. 2d 315.) From our examination of the record we are unable to say that the decision of the Industrial Commission is against the manifest weight of the evidence, and the judgment is therefore affirmed.

Judgment affirmed.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54477.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BILLY JOE CASTILE et al., Appellees.

      Opinion filed November 20, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Donald W. Weber, State’s Attorney, of Edwardsville, John Baricevic, State’s Attorney, of Belleville, and David W. Hauptmann, State’s Attorney of Harrisburg (Martin N. Ashley and Gillum Ferguson, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid, Charles M. Leonhard, and Daniel M. Kirwan, of the Office of the State Appellate Defender, of Mt. Vernon, for appellee Vernon DeWitt.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

The sole issue before us in these five consolidated criminal cases is whether a bail deposit in custody of the clerk of the appellate court can be applied to the satisfaction of costs taxed in the trial court, the authenticity of which is established before the appellate court by certificate of the circuit court clerk. The appellate court denied the State’s motion to apply the deposit to payment of both trial court costs and appeal costs, holding that the deposit could be applied against costs incurred and taxed in the appellate court but that it was without statutory authority to apply the deposit against costs taxed by the trial court. (91 Ill. App. 3d 958.) We allowed the State’s petition for leave to appeal and now reverse.

The defendants contend, and the appellate court held, that in the absence of specific statutory authority costs taxed in one court may not be satisfied by application of bail deposits in custody of another court in the same cause, except through civil remedies such as levy and execution. The State contends such authority is to be found in the relevant statute which in pertinent part provides:

“(a) The person for whom bail has been set shall execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money equal to 10% of the bail, but in no event shall such deposit be less than $25.
* # «
(f) When the conditions of the bail bond have been performed and the accused has been discharged from all obligations in the cause the clerk of the court shall return to the accused, unless the court orders otherwise, 90% of the sum which had been deposited and shall retain as bail bond costs 10% of the amount deposited.
# <* #
(i) After a judgment for a fine and court costs or either is entered in the prosecution of a cause in which a deposit had been made in accordance with paragraph (a) the balance of such deposit, after deduction of bail bond costs, shall be applied to the payment of the judgment.” Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7.

We think these quoted sections clearly allow trial court costs, taxed in the trial court and included as part of the judgment in that court, to be recovered from a bail deposit in the appellate court. Although defendants contend that subparagraph (i) applies only to costs taxed by the same court having custody of the bail deposit, we note that both subparagraphs (f) and (i) use the term “cause,” which would normally include both the trial and reviewing court proceedings in the case.

In People v. Nicholls (1978), 71 Ill. 2d 166, this court, after quoting from Crum v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. (1918), 212 Ill. App. 518, noted:

“Thus, the authority of a clerk of a court of review to tax costs against a losing party arises from the judgment of that court. Also, the amount of bail on deposit with the clerk can only be applied to the satisfaction of those costs for which judgment has been entered, as provided in section 110 — 7(h), quoted above.” (71 Ill. 2d 166, 178.)

Although in that case we also noted that a judgment for costs is only incidental to the criminal conviction (71 Ill. 2d 166, 174), that judgment, nevertheless, is before the appellate court when the cause is appealed. The judgment of the trial court includes the costs of those proceedings (Ill. Rev. Stat. 1979, ch. 38, par. 180 — 3), and they are necessarily incorporated into the judgment appealed from. Its judgment for costs, in the absence of a contrary provision, normally includes all costs. Therefore, when the appellate court enters a judgment in the cause which affirms the conviction, section 110 — 7(i) authorizes the bail deposit to be applied in part to the payment of the judgment. The appellate court is not taxing trial court costs — that has already been done by the trial court. It is simply entering a judgment carrying with it the costs accrued in the case. Similarly, the mandate of a reviewing court which has entered a judgment for costs enables a lower court holding a bail deposit to apply the balance of that deposit to payment of those costs. Here, too, the costs and the judgment will, upon issuance of our mandate, be before the court with jurisdiction over the bail deposit, a procedure we believe contemplated by the statute. Moreover, we fail to perceive any benefit to defendants or the State were we to adopt defendant’s position. If costs could be satisfied only by levy and execution against the bail deposit, those costs would still be recovered, but at significantly greater cost to defendant and inconvenience to the State and the judicial system. Accordingly, we hold that where costs have been taxed by a trial court, the reviewing court may order them paid from a bail deposit in its custody. Ill. Rev. Stat. 1979, ch. 38, par. 110 — 7.

The judgments of the appellate court in the fifth district in People v. Castile, No. 75—26, People v. Thomas, No. 76—475, and People v. DeWitt, No. 77—279, are therefore reversed and the causes remanded to the appellate court with directions that it allow the State’s motion for costs in all courts in accordance with this opinion. In the other two fifth district cases, People v. Wynne, No. 76—250, and People v. Haywood, No. 77—29, which do not involve costs in the circuit court, the judgments are affirmed.

Reversed and remanded, with directions, in People v. Castile, People v. Thomas, and People v. DeWitt; judgments affirmed in People v. Wynne and People v. Haywood.


text:
    (Nos. 54395, 54396 cons.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LAWRENCE LEE EVANS et al., Appellees.

      Opinion filed November 20, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Debra A. Buchman, of the State’s Attorneys Appellate Service Commission, of Springfield, of counsel), for the People.
    Burger, Fombelle, Wheeler & Dvorak, P.C., of Decatur, for appellee Larry Evans.
    Daniel D. Yuhas and Lawrence Bapst, of the Office of the State Appellate Defender, of Springfield, for appellee John Dorris.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendants, John Dorris and Larry Evans, were jointly tried before a jury in the circuit court of Champaign County for the murder of Charles Wilson and the attempted murder of Willie Davenport. Following instructions on lesser included offenses, the jury returned verdicts of guilty of involuntary manslaughter and aggravated battery against Dorris and guilty of voluntary manslaughter and aggravated battery against Evans. The trial court sentenced Dorris to five years for involuntary manslaughter, to be served concurrently with three years for aggravated battery. Evans was sentenced to an extended term of 10 years’ imprisonment for voluntary manslaughter and the maximum term of five years for aggravated battery, to be served concurrently. The appellate court reversed the judgments of conviction against Dorris. It affirmed the judgments of conviction against Evans, but vacated the extended sentence and remanded for resentencing. 90 Ill. App. 3d 707.

The issues before us are (1) whether the circumstantial evidence against Dorris, on an accountability theory, excluded every reasonable hypothesis of innocence so as to establish his guilt beyond a reasonable doubt, (2) whether Evans was proved guilty beyond a reasonable doubt of voluntary manslaughter, (3) whether the trial court erred in imposing an extended sentence for Evans’ voluntary manslaughter conviction, and (4) whether the convictions of Evans and Dorris should be reversed because of inconsistent verdicts reached by the jury. In view of the results reached, this last issue need not be addressed.

A summary of the facts reveals that during the day of September 12, 1979, Dorris went to the home of Evans to have Evans work oh the transmission of his car. At this time, Evans stated that he did not have any bullets for his gun, whereupon Dorris informed him that his cousin had left some in Dorris’ car. Evans obtained sufficient bullets to load his pistol. Later that evening, at approximately 7:30 p.m., Dorris stopped by a car wash where he met Davenport. At this meeting, Davenport made some insulting remarks about Dorris’ dog, after which Dorris left and chanced to meet Evans, who was driving about Champaign. According to Evans, Dorris invited Evans to accompany him to the car wash to celebrate Wilson’s birthday. This occurred at about 8:30 or 9 p.m. Evans then drove home, where Dorris picked him up. Evans took his gun from his car, but testified that he did not inform Dorris of that fact.

Evans and Dorris arrived at the car wash, where approximately 25 to 30 people had gathered. Dorris got out of the car and, according to Evans, was speaking to Wilson when Davenport approached Wilson and Dorris. At some point, Davenport and Dorris exchanged angry words and gestures. It appears that Dorris then walked away and Evans and Davenport exchanged words. Evans testified that Davenport said, “I’ll do to you the same thing I will do to John” and then turned toward his car. At this point, the record indicates that Evans, who was still seated in Dorris’ car, jumped out of the car and fired two shots, one hitting Davenport in the leg, the other striking the windshield of Davenport’s car. Evans then chased Davenport around his car, firing several shots. Evans finally caught Davenport and struck him on the head with his gun. At this point, Dorris searched Davenport’s car and remarked that he couldn’t find a gun. At the conclusion of these events, Charles Wilson was discovered lying nearby with a chest wound from which he died. The bullet that caused the wound was not of the same type as those that were subsequently found in the glove compartment of Dorris’ car.

The State proceeded against defendant Dorris on the theory that he was accountable for the acts committed by Evans. Section 5 — 2 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1979, ch. 38, par. 5 — 2) provides:

“A person is legally accountable for the conduct of another when:
# # #
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.

Mere presence does not render one accountable under the statute; there must be proof of the required intent and that defendant aided, abetted or attempted to aid another in the perpetration of the crime. People v. Tyler (1979), 78 Ill. 2d 193, 196-97.

As the State concedes, proof of Dorris’ role in the crime rests on circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances which gives rise to a reasonable inference of other facts which tend to establish the guilt or innocence of a defendant. When the evidence finding defendant guilty is entirely circumstantial, the facts proved must be consistent with defendant’s guilt and inconsistent with any reasonable hypothesis of innocence. (People v. Rhodes (1981), 85 Ill. 2d 241, 249; People v. Garrett (1975), 62 Ill. 2d 151, 163; People v. Branion (1970), 47 Ill. 2d 70, 77; People v. Lewellen (1969), 43 Ill. 2d 74, 78; People v. Benson (1960), 19 Ill. 2d 50, 61.) In this case the trial court, over objection of Dorris, failed to include the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (1968), which states:

“You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.” (Emphasis added.)

This paragraph should be given when the proof of guilt, as to each element of the offense, is circumstantial. Here the State concedes that conviction of Dorris was founded on circumstantial evidence; therefore, this portion of the instruction should have been given to the jury. The State asserts that the jury was aware of the law on this point. We find rib substantiation for such assertion because it is the court that instructs the jury on the law to be applied to the facts presented.

Nevertheless, the State posits that the circumstantial evidence against Dorris excluded every reasonable hypothesis of innocence, thereby establishing his guilt beyond a reasonable doubt. The State concludes that “it is evident Dorris picked up Evans for support in his argument with Davenport and had returned to the car wash with the intention of doing physical harm to Davenport.” The State contends it is “apparent that Evans and Dorris had previously discussed this course of action because Dorris moved away from the path of the bullets of Evans as if he was moving in response to a signal from Evans.” The State also asserts that Dorris’ failure to attempt to stop Evans during the incident “is consistent with the view that Dorris and Evans had gone to the car wash looking to get Davenport.”

We recognize that proof of a common purpose can be drawn from the circumstances surrounding the commission of an act. (People v. Holmes (1977), 67 Ill. 2d 236, 240; People v. Tate (1976), 63 Ill. 2d 105, 109; People v. Richardson (1965), 32 Ill. 2d 472, 476.) However, the facts in this case are clearly distinguishable from cases where, in addition to a defendant’s mere presence, the evidence demonstrated that the defendant possessed the necessary intent and that he solicited, aided, abetted, or attempted to aid in the planning or commission of the offense, thereby leading to a conviction under an accountability theory. (People v. Tyler (1979), 78 Ill. 2d 193; People v. Holmes (1977), 67 Ill. 2d 236; People v. Morgan (1977), 67 Ill. 2d 1; People v. Tate (1976), 63 Ill. 2d 105; People v. Richardson (1965), 32 Ill. 2d 472.) In those cases, the facts did not support any reasonable hypothesis of innocence. Cf. People v. Shields (1955), 6 Ill. 2d 200 (defendant’s mere presence at the commission of an alleged offense, without any affirmative act of assisting, abetting or encouraging the commission of the act was not sufficient to make him a principal in the commission of the offense).

The State’s conclusions in this case are based upon speculation and conjecture. Our review of the record reveals no direct evidence of fact upon which the jury could arrive at the conclusions advanced by the State to establish accountability on the part of Dorris. Evans testified that he and Dorris returned to the car wash to meet Wilson to celebrate his birthday. Evans also testified that Dorris did not know he was taking his gun along. There is no evidence that Dorris did know of that fact. Further, there is no evidence in the record that Dorris signaled Evans to shoot. None of the State’s witnesses testified to that effect. In addition, two of the State’s witnesses testified that the argument appeared to be over between Davenport and Dorris when Evans and Davenport began arguing. As to the bullets obtained by Evans in his earlier visit with Dorris, this occurred prior to both of Dorris’ encounters with Davenport. Moreover, the record does not reveal that Dorris’ first meeting with Davenport involved a serious argument that would form the basis for the inference that Dorris enlisted Evans’ aid to shoot Davenport.

The evidence presented leads to the conclusion that the State failed to meet its burden of excluding every reasonable hypothesis of innocence. Consequently, Dorris’ convictions of involuntary manslaughter and aggravated battery were correctly reversed by the appellate court.

Defendant Evans argues that he was not proved guilty beyond a reasonable doubt of voluntary manslaughter. Section 9 — 2(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(b)) provides:

“A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

Evans argues his belief that he was acting in self-defense was reasonable. To support this argument, he points to the fact that the evidence revealed that Davenport was reputed to carry guns and that Davenport threatened him and then turned to his car, presumably to get his gun. Evans testified that he shot at Davenport and chased him around the car with the intention of keeping Davenport from reaching into his car to get his gun. On the other hand, several witnesses testified that Davenport made no move to reach into his car when the shooting started. No one other than the defendant testified that it appeared as if Davenport attempted to get into his car. Finally, a search of Davenport’s car after the shooting did not reveal a gun.

The determination of whéthér the defendant’s subjective belief is reasonable in a manslaughter case is for the jury to make. (People v. Lockett (1980), 82 Ill. 2d 546, 552.) This court will not disturb the jury’s verdict as to whether a killing is justified under self-defense “unless the evidence is palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory that it justifies entertaining a reasonable doubt of the defendant’s guilt.” (People v. Jordan (1960), 18 Ill. 2d 489, 492-93.) The standard set by the rule was not met in this case. We believe, from the evidence presented, the jury could have properly concluded that Evans’ belief that the shooting was necessary to prevent his own death or bodily harm was unreasonable. Consequently, the evidence proved Evans guilty of voluntary manslaughter beyond a reasonable doubt and his conviction of that offense is affirmed.

Evans also argues that the extended-term sentence he received was improper. Section 5 — 5—3.2(b)(2) of the Unified Code of Corrections provides that an extended sentence may be imposed “[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2).) The trial judge found that Evans’ acts constituted wanton cruelty and imposed an extended sentence for voluntary manslaughter. The appellate court reversed the extended sentence because Wilson was an unintended target and killed as a result of unintended action and there was some evidence that Evans believed he was acting in self-defense. The State argues that (1) the extended-term provision is applicable to crimes that result in injury to an unintended victim and (2) the actions directed at Davenport constituted wanton cruelty.

Section 5 — 8—2(a) of the Unified Code of Corrections provides:

“A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a).) (Emphasis added.)

When section 5 — 8—2(a) is read in conjunction with section 5 — 5—3.2, it is clear from the plain language of the statutes that the most serious offense of which the offender is convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. In this case, Evans could only receive an extended sentence if the voluntary manslaughter offense (a Class 2 felony (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2(c))—as opposed to aggravated battery, a Class 3 felony (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(e)))—were accompanied by wanton cruelty. Evans’ voluntary manslaughter conviction arose out of Wilson being killed by an apparently stray bullet. Inasmuch as Wilson was an unintended victim and none of Evans’ actions were directed toward Wilson, we concur in the appellate court’s determination that the voluntary manslaughter offense was not accompanied by exceptionally brutal or heinous behavior indictive of wanton cruelty.

We recognize that the present legislative scheme could lead to the anomalous result of insulating a defendant from receiving an extended sentence for an offense accompanied by wanton cruelty by virtue of his conviction of a more serious offense. This case, however, does not present a situation in which that problem arises. We do not believe that Evans’ actions directed toward Davenport were indicative of wanton cruelty. The fact that the trial court gave a voluntary manslaughter instruction reveals there is at least some evidence that Evans’ actions toward Davenport were made under the subjective belief he was acting in self-defense. Further, the jury’s verdict of voluntary manslaughter, rather than murder, necessarily reveals its conclusion that a subjective belief was present. See People v. Lockett (1980), 82 Ill. 2d 546, 551-53.

Our review of the record supports that determination. Although no gun was found in Davenport’s car, several witnesses testified that Davenport had the reputation of being a violent person and of carrying a gun. Evans testified that Dorris told him earlier in the evening that Davenport had pulled a pistol on him two or three times. Evans also stated that Davenport turned toward his car. Two witnesses testified that Evans might have been pointing the gun in the air when he shot and that it appeared as if he might have been attempting to scare Davenport to prevent him from getting to his gun. Also, several witnesses testified that the gun discharged when Evans hit Davenport, demonstrating the possibility that the continued shooting was only to prevent Davenport from getting to his car until Evans could catch him. Compare People v. Jones (1979), 73 Ill. App. 3d 99.

In our opinion, actions committed under a subjective belief, albeit unreasonable, that the actions were in self-defense do not constitute wanton cruelty. As the appellate court noted, section 5 — 8—2 of the Unified Code of Corrections was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence. (See People v. Schlemm (1980), 82 Ill. App. 3d 639, 651.) Because the evidence indicated that all Evans’ actions toward Davenport were committed under the belief, although unreasonable, that he was acting in self-defense, we cannot say the aggravated battery offense was accompanied by wanton cruelty.

We conclude that the trial court erred by imposing an extended sentence for Evans’ voluntary manslaughter conviction. See People v. Cox (1980), 82 Ill. 2d 268; People v. Perruquet (1977), 68 Ill. 2d 149.

For the above reasons, the judgments of the appellate court are affirmed.

Judgments affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 54444.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARY LOU GREER, Appellee.

      Opinion filed November 20, 1981.

      Tyrone C. Fahner, Attorney General, of Springfield, and Robert Shuff, State’s Attorney, of Mt. Vernon (Herbert Lee Caplan, Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, and Martin N. Ashley, Christopher S. Carroll, and Gaye A. Bergschneider, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.

      Paul D. Giamanco, of Giamanco & Wexstten, of Mt. Vernon, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

This appeal concerns the admissibility of evidence seized pursuant to a search warrant, the complaint for which was based on an anonymous telephone caller’s tip. Mary Lou Greer’s (defendant’s) home was searched, the evidence seized, and she was charged with burglary and theft. Prior to a bench trial, the defendant filed a motion to suppress the evidence. The Jefferson County circuit court denied the motion. The defendant was convicted of burglary and theft. The appellate court reversed, with one justice dissenting. (91 Ill. App. 3d 304.) We granted the State leave to appeal pursuant to our Rule 315 (73 Ill. 2d R. 315).

On July 28, 1978, Karl Powers, dispatcher for the Mt. Vernon police department, received a telephone call from an anonymous female. The caller told Powers that she had information about “the Wielt case.” She stated that a television set, a police scanner, and a clock, taken in a burglary of the Wielt home in rural Jefferson County, could be found “at the Greer home at 2101 College” in Mt. Vernon. Powers relayed this information to his superior, who, in turn, contacted Deputy Roy Bradford of the Jefferson County sheriff’s office, within whose jurisdiction the case fell. Bradford telephoned Powers to confirm the anonymous call and to inform Powers that the items mentioned had in fact been stolen from the Wielt home.

Based on this information, Deputy Bradford signed a complaint for a search warrant. The complaint alleged:

“1. That on July 28, A.D. 1978, at the hour of 11:30 A.M. Karl Powers received an anonymous phone call stating that materials involved in burglary of the Wielt residence were located at the residence of Mary Lou Greer located at 2101 College, Mt. Vernon, Illinois. Powers checked with deponent who verified the items taken in the burglary and the victims address which collaborated [sic] the informants information that by reason thereof, deponent believes that the offense of Burglary and Theft has been committed.”

The circuit court denied the motion to suppress the evidence seized pursuant to the warrant, stating that probable cause existed because the anonymous informant’s description of the items taken matched that given by the victim of the burglary. The appellate court reversed. We find that the complaint for the search warrant does not meet the two-prong test set out in Aguilar v. Texas (1964), 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509.

Both the fourth amendment of the United States Constitution and article I, section 6, of the Illinois Constitution of 1970 provide that a search warrant may not issue without probable cause. The evaluation as to whether probable cause exists for the issuance of the warrant must be made by a neutral and detached judicial officer and not the police officer. That determination must be made from sworn statements or affidavits presented to the judge.

Recently, this court considered a search and seizure case in which the search warrant had been issued on the basis of a complaint containing information supplied in an anonymous letter. (People v. Gates (1981), 85 Ill. 2d 376.) We consider the holding in that case controlling here and will therefore not elaborate in detail on the applicable law.

The Supreme Court in Aguilar v. Texas set forth the constitutional standard to be used in determining whether a search warant was properly issued when it was based on information supplied by an anonymous informant. The test is essentially in two parts, which are commonly referred to as the “basis of knowledge” prong and the “veracity” prong. Because of the holding in our case, it will not be necessary for us to discuss the veracity prong.

To satisfy the basis-of-knowledge part of the test, the informant must disclose some underlying facts or circumstances which support his conclusion that the property to be seized (in our case the stolen property) is where he claims it to be. Such underlying information will enable the neutral judicial officer to make his own evaluation of the under- , lying facts in determining whether or not to issue the warrant. The information may fail to adequately set forth the basis of his knowledge; that is, how his information was obtained. However, this deficiency may be cured if the information is so detailed that the judicial officer could reasonably infer that the informant had gained this information in a reliable manner. (Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.) The subsequent verification of the details the informant furnishes may be used to support a finding of probable cause.

In People v. Gates the anonymous letter not only stated the location where narcotics could be found, but also stated some details concerning the activities of the people who, it was alleged, had possession of the narcotics. These details were subsequently verified by the police. Nevertheless, this court held that the basis-of-knowledge test had not been satisfied, and that the corroborative evidence, when coupled with the details of the informant’s letter, did not constitute probable cause under the test of Aguilar. The details furnished in Gates were substantially more than those furnished in our case.

In the case now before us, the informant stated simply that a television set, a police scanner, and a clock that had been taken in a burglary of the Wielt house could be found at the Greer home at 2101 College in Mt. Vernon. She did not state how she knew these items were stolen, or how she knew they were in the Greer home. Nor did she give any details from which one could conclude that she did have a basis for making her allegations.

The State contends that the informant’s information was subsequently verified. It was established by checking with the sheriff’s office that the Wielt home had in fact been burglarized and that a television set, a police scanner, and a clock had been taken. In Gates we stated that self-verifying detail as a means of satisfying the basis of knowledge prong must be accepted with great circumspection. We also noted that Mr. Justice Harlan, in Spinelli, cautioned that the informant must describe the criminal activity in detail adequate to show the magistrate he is relying on information more substantial than casual rumor.

The information the anonymous informant gave the Mt. Vernon police officer does not satisfy the basis-of-knowledge requirement. As Mr. Justice Harlan stated in Spinelli:

“This meager report could easily have been obtained from an offhand remark heard at a neighborhood bar.” (Spinelli v. United States (1969), 393 U.S. 410, 417, 21 L. Ed. 2d 637, 644, 89 S. Ct. 584, 589.)

The fact that it was later learned that the Wielt home had been burglarized and that the items named by the informant had been stolen does not constitute sufficient verification of the tip so as to satisfy the “basis of knowledge” prong. This information could indeed have been heard at a neighborhood bar, or possibly, could have been heard on a local news broadcast, or could have been read in the paper. More substantial verification is required.

The judgment of the appellate court is affirmed.

Judgment affirmed.


text:
    (No. 54360.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. MARLA B. HAYES, Appellee.

      Opinion filed November 20, 1981.

    Tyrone C. Fahner, Attorney General, of Springfield, and Rick Keller, State’s Attorney, of Effingham (Martin N. Ashley, Gaye A. Bergschneider, Gillum Ferguson, and Stephen E. Norris, of the State’s Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.
    John H. Reid and John W. McGuire, of the Office of the State Appellate Defender, of Mount Vernon, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered , the opinion of the court:

Following a bench trial in the circuit court of Effingham County defendant, Marla B. Hayes, was convicted of retail theft of less than $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3(a)). She was sentenced to 30 months’ probation, the first 60 days to be served in confinement. The appellate court reversed and remanded (90 Ill. App. 3d 102), and we granted the People’s petition for leave to appeal.

The information, in three counts, charged three separate instances of retail theft of less than $150, contained no allegations of a prior conviction of retail theft, and did not state whether the offense charged was a misdemeanor or a felony. Upon defendant’s first appearance before the circuit court she was advised that the People were seeking a conviction for a Class 4 felony, and the penalties which could be imposed upon conviction for a Class 4 felony were explained to her. At trial it was stipulated that defendant had previously been convicted of retail theft.

The appellate court, in reversing the judgment, reviewed a number of authorities (People v. Ostrand (1966), 35 Ill. 2d 520; People v. Owens (1967), 37 Ill. 2d 131; People v. Weaver (1968), 41 Ill. 2d 434; People v. Dixon (1970), 46 Ill. 2d 502), and although it concluded that the basis for the rule was subject to serious question, it held that our decision in People v. Edwards (1976), 63 Ill. 2d 134, required that the judgment be reversed.

Section 16A — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3) defines the offense of retail theft, and section 16A — 10 provides:

“§ 16A — 10. Sentence.
(1) Retail theft of property, the full retail value of which does not exceed $150, is a Class A misdemeanor.
(2) After a conviction of retail theft or theft, without regard to the full retail value thereof, a second or subsequent offense of retail theft, the full retail value of which does not exceed $150 is a Class 4 felony.
(3) Any retail theft of property, the full retail value of which exceeds $150, is a Class 3 felony.” Ill. Rev. Stat. 1979, ch. 38, par. 16A — 10.

The sole issue presented in this appeal is whether, in order to invoke the provisions of section 16A — 10(2), it was necessary to allege in the information that the offense charged was “a second or subsequent offense of retail theft.”

In its review of the authorities the appellate court, after discussing People v. Ostrand (1966), 35 Ill. 2d 520, People v. Owens (1967), 37 Ill. 2d 131, and People v. Dixon (1970), 46 Ill. 2d 502, concluded that none of these authorities can be read to hold “that the prior conviction must be alleged in the indictment.” (90 Ill. App. 3d 102, 105.) We agree.

In reviewing a number of opinions of the appellate court, the appellate court said that the “cases have held that while there is no requirement that prior convictions which may subject a defendant to an enhanced penalty or extended term of imprisonment need be set out in an indictment or information (People v. Butler (1979), 78 Ill. App. 3d 809, 396 N.E.2d 1374; People v. Racinowski (1979), 78 Ill. App. 3d 954, 397 N.E.2d 932), where the statute mandates an enhanced penalty or elevates the degree of an offense from a misdemeanor to a felony, the prior conviction must be alleged in the indictment. (People v. Racinowski, citing, inter alia, Ostrand and Ramey.) The stated logic is that the prior conviction then becomes an element of the offense charged. (People v. April (1979), 73 Ill. App. 3d 555, 392 N.E.2d 400.) Again, the issue before the court in Racinowski and April, however, was not whether the body of the indictment or information must contain the allegation of the prior conviction to charge the enhanced offense or require the imposition of an enhanced penalty.” 90 Ill. App. 3d 102, 105.

For the most part, the defendants in the cases cited have contended that the allegation and proof of prior convictions have been prejudicial. Indeed, in the Habitual Criminal Act (Ill. Rev. Stat. 1979, ch. 38, par. 33R — 1 et seq.) allegation and proof of prior convictions are proscribed until after conviction.

We are not unaware of the differences between the result of conviction of a felony and a misdemeanor. (Ill. Const., art. XIII, §1; Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—5.) We do not, however, find any sound reason to hold that because the prior conviction elevates the degree of the offense from a misdemeanor to a felony it should be necessary, at the risk of prejudice to the accused, that it be alleged in the information and proved.

We hold that in order to invoke the provisions of section 16A — 10(2) the sentencing court must find beyond a reasonable doubt, after notice to the accused and an opportunity to refute the allegation, that the accused was in fact convicted of a prior offense of retail theft and that the record supports that finding.

Here defendant was advised at her first appearance before the court that the People sought to invoke the felony provisions of the statute. The prior conviction was stipulated, and defendant has shown no prejudice as the result of the failure to allege the prior conviction in the information.

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

Appellate court reversed; circuit court affirmed.


text:
    (No. 54804.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DAVID “MICK” JOHNSON (R. C. Lanto, Jr., et al., Appellees).

      Opinion filed November 20, 1981.

      Thomas J. Difanis, State’s Attorney, of Urbana (Trisha Crowley, Assistant State’s Attorney, of counsel), for the People.
    John Gadau, of Champaign, for appellants R. C. Lanto, Jr., and Paul R. Wilson, Jr.
    Howard H. Braverman, of Springfield, for amici curiae Illinois State Bar Association.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Attorneys R. C. Lanto, Jr., and Paul R. Wilson; Jr., appointed to represent indigent defendants, requested compensation for their services and expenses incurred. The Champaign County circuit court awarded the attorneys nominal fees. The appellate court reversed and remanded (93 Ill. App. 3d 848), holding that the fees were unreasonable. We granted leave to appeal.

Both attorneys were appointed by the circuit court to represent defendants charged with murder. Subsequent to the disposition of the cases, the attorneys filed verified petitions for fees and expenses. Wilson requested $15,000 for attorney fees and $90 for costs. Lanto requested $9,454.50, which included attorney fees and costs. A hearing was held, at which the attorneys and other witnesses testified.

Wilson stated that, since he was admitted to the practice of law in Illinois in 1974, he has practiced primarily in the field of criminal law. The firm in which he is currently a partner charges an hourly rate of $75, and his hourly share of the firm’s overhead is $21.06. Wilson’s petition indicates that he spent approximately 35 hours in court and 220 hours out of court under his appointment.

Lanto has been practicing law in Illinois since 1968, and currently devotes 40% of his practice to criminal matters. His hourly charge for services is between $55 and $60 and from this $18 is allocated to office overhead. Under his appointment, Lanto spent approximately 7 hours in court and 155 hours out of court.

The uncontroverted testimony of other witnesses indicated that the customary fee for defending a murder case in Champaign County ranges from $12,000 to $20,000. The public defender for Champaign County receives an annual salary of $34,050, and is not responsible for overhead costs. The court took judicial notice that special prosecutors for the county are paid $60 per hour. A laborer testified that his hourly wage is $12.35.

Following the hearing, the trial court awarded Wilson $2,000 for fees and $90 for out-of-pocket expenses incurred; Lanto was awarded $1,200 for fees. The fees allowed were at the rate of approximately $8 an hour, an amount less than one-half of their.overhead expenses. Both attorneys appealed, contending that the awards were unreasonable.

The appellate court found that the awards were so unreasonably low as to constitute a clear abuse of discretion. While compensation equal to the prevailing market rate is not required, the court determined that fees awarded should reimburse the attorney for expenses and provide some additional compensation.

The sole issue is what constitutes “reasonable” compensation in awarding fees to private counsel appointed to represent indigent defendants in criminal cases.

Section 113 — 3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1980 Supp., ch. 38, par. 113 — 3(c)) (eff. Dec. 28,1979) provides, in relevant part:

“Upon the filing with the court of a verified statement of services rendered the court shall order the county treasurer of the county of trial to pay counsel other than the Public Defender a reasonable fee. In counties with a population of not more than 2,000,000, the court shall consider all relevant circumstances, including but not limited to the time spent while court is in session, other time spent in representing the defendant, and expenses reasonably incurred by counsel.” (Emphasis added.)

This statute was in effect when Wilson and Lanto rendered a portion of their legal services and submitted their petitions for fees. All parties agree that section 113 — 3(c), as amended, is controlling. At the time the attorneys were appointed, but before they completed their services, the statute provided for a maximum rate of compensation. In misdemeanor cases, compensation was limited to $150 for each defendant; in felony cases, fees awarded could not exceed $1,000. Additional compensation was available in extraordinary circumstances. Ill. Rev. Stat. 1975, ch. 38, par. 113 — 3(c).

The State contends that the awarded fees are reasonable since the trial court granted Wilson 100% and Lanto 20% more in fees than could have been permissible under the prior statute. This argument is not persuasive since the State concedes that the quoted statute is controlling. The current statute mandates that counsel be paid a reasonable fee; a fee award is not necessarily reasonable merely because it provides greater compensation than previously allowed.

The State’s primary argument in support of the fees allowed focuses on an historical analysis. Traditionally, representing indigent defendants without compensation has been viewed as a professional obligation of attorneys as officers of the court. (People v. Sanders (1974), 58 Ill. 2d 196, 199.) Performing free services was deemed a duty incident to the privilege of practicing law. (Vise v. County of Hamilton (1857), 19 Ill. 78, 79.) The State further argues that the appellate court, by allowing counsel reimbursement for expenses in addition to a fee, ignored the attorneys’ historical duty to represent indigent criminal defendants.

We are not unmindful of the attorneys’ important obligation to defend those persons who are financially unable to retain private counsel. However, fee awards providing only nominal compensation for this service are no longer feasible. There is a growing tendency to allow counsel more than “token” compensation for representing indigent defendants. Courts in other jurisdictions have determined that the community, as well as the bar, should assume financial responsibility for the defense of indigents. (E.g., State v. Horton (1961), 34 N.J. 518, 532, 170 A.2d 1, 8.) We agree.

A primary reason for providing greater compensation for private attorneys is the increased frequency of court appointments. (Abodeely v. County of Worcester (1967), 352 Mass. 719, 227 N.E.2d 486; State v. Lehirondelle (1976), 15 Wash. App. 502, 550 P.2d 33.) Due to the expansion of criminal defendants’ rights (e.g., Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792), and the consequent conflicts with the public defenders, the burden of representation imposed on the bar has significantly increased.

Coincident with the need for increased representation, the need for more effective representation has arisen. Counsel is expected to maintain a high degree of competence and skill and faithfully guard his clients’ interests. “We think the days are past when a lawyer could be expected to do this solely as a public service. If society is to demand representation by counsel in an expanding variety of proceedings and to insist on a high level of competency in the performance of such representation, then counsel should be paid.” Luke v. County of Los Angeles (1969), 269 Cal. App. 2d 495, 499, 74 Cal. Rptr. 771, 774.

The inequitable burden of representation provides an additional argument for allowing reasonable compensation to counsel representing in digents. As a result of the recent trend by attorneys to limit their practice to certain fields of law, the “general practitioner” is quickly becoming obsolete. Thus, only a small percentage of attorneys are trial lawyers; an even smaller percentage practice in criminal defense matters. “It is unjust that this comparative handful of individuals should alone bear the burdens which are rightly those of all of the bar and indeed of the community and the taxpayers.” Abodeely v. County of Worcester (1967), 352 Mass. 719, 723, 227 N.E.2d 486, 489.

While the present trend is to allow counsel reasonable compensation for representing indigents, courts have not allowed attorneys full compensation for performing this duty. Rather, the courts atteifipt to strike a balance between providing gratuitous service as a professional duty and alleviating the increased burden of defending indigents imposed on the bar. See State v. Horton (1961), 34 N.J. 518, 532, 170 A.2d 1, 8; State v. Lehirondelle (1976), 15 Wash. App. 502, 504, 550 P.2d 33, 34.

Courts consider numerous factors in determining what constitutes “reasonable” compensation for private counsel appointed to represent indigent defendants. Some of the considerations are the extent of services performed and time involved (United States v. James (W.D. Tex. 1969), 301 F. Supp. 107; Lindh v. O’Hara (Del. 1974), 325 A.2d 84, 93), expenses incurred (see State v. Rush (1966), 46 N.J. 399, 416, 217 A.2d 441, 450; State v. Miller (Iowa 1973), 204 N.W.2d 834, 844), the rate of compensation for counsel in comparable jurisdictions (State v. Lehirondelle (1976), 15 Wash. App. 502, 504-05, 550 P.2d 33, 34-35), and the availability of public funds (Lindh v. O’Hara (1974), 325 A.2d 84, 92). At least two courts have adopted a definite rule for determining compensation. (State v. Sidney (1975), 66 Wis. 2d 602, 610, 225 N.W.2d 438, 442 (two-thirds of the prevailing rate charged private clients for comparable services) and State v. Rush (1966), 46 N.J. 399, 413, 217 A.2d 441, 448 (60% of the customary fee).) A few courts have not established any criteria; the matter of compensation, and the relevant factors to consider, are left to the discretion of the lower courts. See Smith v. State (1978), 118 N.H. 764, 394 A.2d 834; State v. Belding (1974), 192 Neb. 555, 222 N.W.2d 835; Abodeely v. County of Worcester (1967), 352 Mass. 719, 227 N.E.2d 486.

Accordingly, we believe that reasonable compensation “should reimburse assigned counsel for his overhead and yield something toward his own support.” (State v. Rush (1966), 46 N.J. 399, 413, 217 A.2d 441, 448.) In the instant case, this was not done. A fee award which is insufficient to cover reasonable office overhead and expenses of trial is clearly unreasonable.

The formula for reasonable compensation should be the hourly fee normally charged for comparable trial court services, less an amount adequate to satisfy the pro bono factor. In determining what constitutes a reasonable fee, the trial court must consider a number of factors, including, but not limited to, time spent and services rendered, the attorney’s skill and experience, complexity of the case, overhead costs, and expenses of trial. Another consideration is local conditions, which refers to the number of attorneys, in a given location, who could be called upon to perform pro bono work. Where there are only a few criminal-trial lawyers in a particular locale, the court must necessarily appoint attorneys from the same select group to represent indigent defendants. This process imposes an unfair burden on that group of attorneys, a burden which is not being shared by all members of the bar. The trial court must also consider this inherent inequity in determining compensation.

In order to aid the trial court in its determination, attorneys should keep an itemized log of all time spent and services performed, and by whom. Specifically, the attorney must designate the amount of time spent in court and out of court, and indicate which services were performed by himself, his associates, law clerks, or paralegals. This information will establish a basis upon which to determine compensation, as well as provide a record in the event of review.

In their cross-appeal, appellees are requesting interest on any reasonable fee allowed by the trial court, dating from the time in which they were entitled to the fee until it is paid. In addition, they are requesting attorney fees incurred in the defense of this appeal.

Interest is generally allowed from the date a final judgment is entered. (Ill. Rev. Stat. 1975, ch. 74, par. 3.) However, the appellees never received a final judgment in terms of a dollar amount; the case was remanded by the appellate court to the trial court to determine a reasonable fee. As a result, there has been no final judgment upon which to base an award of interest. Consequently, on remand, interest should not be attached to any reasonable fee allowed by the trial court.

Appellees request attorney fees on the theory that equitable principles so require since the lower court’s abuse of discretion necessitated the appeal. We note that section 121 — 13 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 121 — 13) allows appointed counsel, other than the public or appellate defender, reimbursement for fees incurred in appealing a defendant’s felony conviction. However, this is not the situation here. Appellees request attorney fees for defending their own judgment. Generally, with certain exceptions not relevant here, attorney fees are not recoverable unless permitted by statute. (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 51-52.) The fees requested in this case are not statutorily authorized, and therefore should not be allowed.

Accordingly, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Champaign County for a redetermination of the attorney fee awards in accordance with the views expressed herein.

Affirmed and remanded.