author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLIFTON DAVID TUCKER-EL, Defendant-Appellant.
    Second District
    No. 82 — 459
    Opinion filed May 9, 1984.
    Rehearing denied June 8, 1984.

      G. Joseph Weller and Michael Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, Frank Weiss, and Wendy S. Paul, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury, defendant, Clifton David Tucker-El, was convicted of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)) and was sentenced to seven years’ imprisonment. He appeals contending: (1) that his confession should have been suppressed for failure of the State to present a material witness at the suppression hearing, and the trial court further erred in denying defendant’s request for a continuance so that he could subpoena that witness; (2) that his statutory right to a speedy trial was violated; and, (3) that in imposing sentence the trial court erroneously relied upon a prior conviction of defendant which had been reversed. He does not contest the sufficiency of the evidence to sustain his conviction.

Evidence at trial disclosed that on the afternoon of November 3, 1981, Lake Bluff police officers Carl Sebones and Leon Raymond responded in separate cars to a burglary alarm at a Lake Bluff residence; the house, located on Green Bay Road, was vacant as the owner was in Florida. The officers saw that a door had been forced open and called for assistance. Two police officers from the Lake Forest police department came to the scene. On inspection of the house, the officers found defendant standing inside the front door; he was ordered to come out and was then placed face down on the ground and handcuffed. One of the Lake Forest police officers guarded defendant while Sebones and Raymond looked through the house. In the master bedroom, they observed a chest of drawers which had been opened and empty boxes. After examining the house for about 20 minutes, the officers searched defendant and a pry tool, watch, diamond rings and necklaces were recovered from his person. The watch and jewelry were identified at trial as the property of the home’s owner.

Defendant’s confession to the commission of the burglary was given to Officers Raymond and Sebones at the police station and introduced in trial. Defendant therein stated he had committed the burglary because he owed $25,000 to some people in Chicago who had threatened to kill him if he failed to pay them.

Defendant also testified at trial denying he had committed the burglary and repudiating his confession as the product of police threats to kill him if he did not confess. According to defendant, he had been walking on a Lake Bluff street on that day when Officer Sebones stopped him and asked what he was doing in town. The officer then drew his weapon and placed defendant in a patrol car and drove him to the house on Green Bay Road; en route Sebones advised other police officers via radio he had a suspect in custody who looked like one of the several black men earlier seen in the area in a suspicious car. Defendant further testified that three or four police cars were at the house on Green Bay Road when he and Sebones arrived. Defendant was then forced to lie face down on the ground outside the house and, he stated, Sebones threatened to kill him at that time. Another police officer then came over to him and pointed an empty shotgun at his head and pulled the trigger several times as he ordered defendant to confess to having burglarized the house or be killed. Defendant stated he was on the ground for about 20 minutes during which time some of the officers were in the house after having gained entry by a key. He testified that later at the police station he was again threatened before he gave his confession. Defendant denied that any of the items introduced into evidence had been removed from his person during the search.

Before trial, defendant filed a motion to suppress his confession in which he alleged that he had been forced to lie upon the ground while police pointed a shotgun at his head and several times pulled the trigger while warning him if he did not confess he would not make it to jail. The motion did not specify the identity of the officers involved and accused the Lake Bluff police department of the coercion which led to this confession. At the pretrial hearing of defendant’s suppression motion the State called Lake Bluff police officers Carl Sebones and Leon Raymond to testify to the circumstances of his arrest and confession. As relevant, the officers stated that they had handcuffed defendant and required him to lie on the ground at the time of his arrest and that he had been left under the watch of a Lake Forest police officer while Sebones and Raymond examined the interior of the house. The officers testified they had not threatened defendant with any harm if he declined to make a statement.

After the officers testified defendant asked the court for a continuance of the proceedings since the State had not produced all officers who were involved with his arrest. The trial judge declined to do so, stating that the State did not have to bring them forth and that if defendant wanted them to be present he could have subpoenaed them. Defendant thereupon moved for a continuance in order to subpoena the missing officers. The trial court denied defendant’s motion as he had not exercised his right to do so prior to the hearing. Defendant did not testify at the hearing, and the motion to suppress his confession was denied.

We consider first whether the trial court erred in denying defendant’s motion to suppress his confession.

When the voluntariness of a confession has been challenged, the State has the burden of producing all witnesses material to that issue or explain their absence. (People v. Armstrong (1972), 51 Ill. 2d 471, 475-76, 282 N.E.2d 712; Ill. Rev. Stat. 1983, ch. 38, par. 114-ll(d).) Defendant argues the rule was violated by the State’s failure to call the Lake Forest police officer who had allegedly threatened him with a shotgun and, also, by denying defendant’s request for a continuance in order to subpoena the witness. The State responds that any error was waived by defendant’s failure to raise this issue in his post-trial motion and, alternately, that the failure to call further witnesses by the State was excused as defendant’s motion failed to sufficiently apprise it of the persons responsible for the claimed coercion so as to enable the State to identify and call other material witnesses.

It is apparent defendant has waived these issues for review as he failed to preserve them by inclusion in his post-trial motion (People v. Precup (1978), 73 Ill. 2d 7, 16, 382 N.E.2d 227; People v. Lenninger (1980), 88 Ill. App. 3d 801, 804, 410 N.E.2d 1157). In Mincey v. Arizona (1978), 437 U.S. 385, 398, 57 L. Ed. 2d 290, 303, 98 S. Ct. 2408, 2416); however, the court held that “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ‘even though there is ample evidence aside from the confession to support the conviction.’ ” (Emphasis in original.) We conclude defendant’s contention must be reviewed pursuant to the plain error doctrine of Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)).

We do not find merit in the State’s argument that it was insufficiently advised by defendant’s motion to suppress to enable it to call all material witnesses. The motion alleged that at the time of his arrest he was made to lie upon the ground while the police held an empty shotgun to his head and pulled the trigger several times, telling defendant he had better sign a confession or he would not make it to jail. It is also apparent that the officer who guarded defendant during the 20-minute interval while other officers searched the house was not produced as a witness. Nor was defendant permitted to call that officer as a witness in the suppression hearing.

In People v. Glanton (1975), 33 Ill. App. 3d 124, 140-41, 338 N.E.2d 30, the court, in discussing production of material witnesses, stated, “The purpose of the requirement is to compel the State to produce those officers who were witnesses to, or who had a role in procuring, the making of the controverted statement.” Because of defendant’s allegations, it seems apparent that the officer who guarded him was a material witness necessary to the issue of whether defendant’s ultimate confession was voluntary. People v. Armstrong (1972), 51 Ill. 2d 471, 476, 282 N.E.2d 712; People v. Lumpp (1983), 113 Ill. App. 3d 694, 699, 447 N.E.2d 963, appeal denied (1983), 96 Ill. 2d 546; People v. Feagans (1983), 118 Ill. App. 3d 991, 995-96, 455 N.E.2d 871.

Our conclusion does not require that defendant’s conviction be reversed, however, but that it be remanded for a new, full hearing on the voluntariness and admissibility of defendant’s confession. (See People v. King (1975), 61 Ill. 2d 326, 329, 335 N.E.2d 417; People v. Parquette (1984), 123 Ill. App. 3d 233; People v. White (1973), 10 Ill. App. 3d 914, 923, 295 N.E.2d 300.) If after hearing defendant’s confession is found to be voluntary and admissible, the trial court should enter a new judgment of conviction. If the confession is not determined to have been voluntary, the court will vacate the judgment of conviction and grant defendant a new trial.

Defendant also contends he was denied his statutory right to a speedy trial (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5). He was arrested on November 3, 1981, and was not brought to trial until May 3, 1982; throughout that 181-day period of time defendant remained in custody. The issue, as framed by defendant, is whether the running of the term was tolled by an eight-day continuance of the preliminary hearing due to his physical incapacity and for the delay occasioned by defendant’s pro se motion for a change of venue.

At the original preliminary hearing on November 12, 1981, defendant collapsed in the courtroom and had to be taken to a hospital before the proceeding could begin; the court rescheduled the hearing for November 20. Defendant argues that as the continuance was not at his request it may not be charged to him.

The speedy-trial term is suspended during a continuance necessitated because a defendant is physically unable to appear in court, and it may be granted on the court’s own motion. (Ill. Rev. Stat'. 1981, ch. 38, par. 114 — 4.) The statute also provides that the speedy-trial term starts to run again once the court has determined, after presentation of evidence, that the physical condition necessitating a continuance has sufficiently improved so that defendant can appear in court. While it does appear the continuance in this case was ordered for a specific period of time by the trial court without knowledge of the extent of defendant’s incapacity, defendant did not advise the court that he could proceed with the preliminary hearing prior to November 20, if such was the case. Since he failed to do so, we find that the 120-day term did not run during the period of defendant’s incapacity.

We also conclude that the delay occasioned by defendant’s motion for change of venue filed by him on January 27, 1982, and withdrawn on March 26, 1982, is chargeable to defendant. Prior to filing his pro se motion defendant had waived counsel, but when it came up for hearing on February 8, the trial court questioned its legal sufficiency and offered defendant the choice of having the motion then heard or appointing counsel to assist defendant with it. Defendant chose to have counsel appointed and the hearing of the motion was continued. Defendant argues that not all of the delay which followed until he withdrew the motion should be attributed to him because appointed counsel failed to expeditiously act.

The time required to hear and decide a motion for change of venue is delay attributable to the defendant (People v. Ortiz (1979), 70 Ill. App. 3d 684, 686, 388 N.E.2d 891), and the trial court so advised him. Defendant argues he should not be charged with all of the delay attending his motion because some of it resulted from counsel’s lack of diligence; particularly, he argues that he should not be charged with the period of time from March 17 to when the motion was withdrawn on March 26. On March 17 defendant filed a petition for a writ of habeas corpus which alleged that appointed counsel lacked diligence in seeking a hearing of defendant’s change of venue motion. However, that petition did not request that the motion be withdrawn; indeed, it reiterated his request for a change of venue. Despite any lack of diligence on the part of counsel, as of March 17 defendant was still seeking a change of venue and his original motion was not withdrawn by him until March 26. We conclude he was correctly charged with that period of time (see People v. Ortiz (1979), 70 Ill. App. 3d 684, 388 N.E.2d 891), and his right to a speedy trial was not violated.

Defendant finally contends that his sentence must be vacated and the cause remanded for a determination of whether one of his prior convictions, claimed to have been relied upon by the trial court in sentencing, had been reversed.

At the commencement of the sentencing hearing the court inquired whether defendant had read the presentence report and had any corrections or additions to it. When defendant replied there were no corrections the court proceeded to hear evidence in aggravation and mitigation. The assistant State’s Attorney referred to the many prior convictions of defendant reflected in the presentence report, including three convictions for burglary in the State of California. Defendant then interjected that one of his California convictions had been reversed, without further explanation. In imposing sentence the trial judge referred to defendant’s long history of prior offenses as shown by the presentence report and thereafter imposed the maximum seven-year sentence for the present offense.

It is well established that a sentence cannot be based on a conviction which has been reversed. (People v. Reynolds (1983), 116 Ill. App. 3d 328, 330-31, 451 N.E.2d 1003; People v. Merneigh (1981), 101 Ill. App. 3d 536, 537, 428 N.E.2d 688, appeal denied (1982), 91 Ill. 2d 563.) However, in order for a defendant to prevail in such circumstances he must affirmatively demonstrate that the trial court relied upon an invalid conviction in sentencing him. (See People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44; People v. Longoria (1983), 117 Ill. App. 3d 241, 452 N.E.2d 1350, appeal denied (1983), 96 Ill. 2d 563; People v. Merchel (1980), 91 Ill. App. 3d 285, 414 N.E.2d 804.) It is presumed that a sentencing court recognized and disregarded incompetent evidence introduced at a sentencing hearing, such as an invalid conviction. (People v. Spicer (1970), 47 Ill. 2d 114, 119, 264 N.E.2d 181; People v. Kirkwood (1980), 82 Ill. App. 3d 252, 263, 402 N.E.2d 677.) Only if the record rebuts this presumption, can a defendant prevail on such a claim. People v. Handley (1977), 51 Ill. App. 3d 68, 74, 366 N.E.2d 405.

We do not consider the presumption has been rebutted in this instance. Defendant’s presentence report listed three California convictions for burglary, the first of which occurred in 1979. Also listed were Illinois convictions for robbery, aggravated battery, criminal trespass, impersonating a government official, false personation, and two convictions for unlawful use of a weapon. In recommending a sentence of seven years, the prosecutor correctly noted defendant had an extensive record of prior convictions. It was at this point that defendant advised the court the State had misconstrued his record of felony convictions outside the State of Illinois stating he had been convicted of a felony in California which had later been reversed. In sentencing defendant the court made no explicit disclaimer of reliance on all three of the California convictions noted in the presentence report. However, silence of the court does not rebut the presumption that it followed the law and disregarded a suspect conviction. (People v. Hamilton (1978), 64 Ill. App. 3d 276, 278, 381 N.E.2d 74.) The court was not required to state its forebearance to consider the conviction and the record does not otherwise indicate that it did consider it. (People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9.) Defendant relies upon People v. Reynolds (1983), 116 Ill. App. 3d 328, 451 N.E.2d 1003, in which this court concluded that the sentencing judge had considered a conviction which was subsequently reversed in imposing sentence. There, the record demonstrated that the prosecutor had referred to the conviction in his sentencing argument, and the court had stated that it had considered the presentence report which listed the conviction. In Reynolds, however, the invalid conviction was not reversed until after the sentencing hearing, and the trial judge therefore had no.reason to believe that one of the convictions cited in aggravation could not be considered for sentencing. (116 Ill. App 3d 328, 330-31.) Thus, the presumption that the court followed the law by disregarding an improper conviction could not apply in Reynolds. In the present case the presentence report listed three prior California convictions and the prosecutor did refer to those in his argument before defendant had claimed that one had been reversed. These circumstances do not affirmatively rebut the presumption that the court then disregarded the challenged conviction. (People v. Beyah (1981), 102 Ill. App. 3d 434, 437, 430 N.E.2d 83.) Nor can it be here contended that because the trial court read the convictions listed in the presentence report and referred generally to California convictions, that the court considered in sentencing that conviction which defendant stated had been reversed. (See People v. Miller (1983), 115 Ill. App. 3d 592, 450 N.E.2d 767, appeal denied (1983), 96 Ill. 2d 547.) When the trial court noted the California convictions, there were still two recent convictions in that State which had been unchallenged by defendant. Defendant also relies upon People v. Phinnizee (1981), 92 Ill. App. 3d 590, 416 N.E.2d 55. There, however, the trial court in fixing sentence expressly noted in support of the substantial sentence imposed that defendant had a history of prior criminal convictions, whereas, except for the three convictions challenged by defendant as invalid, his only prior conviction was for driving without a valid driver’s license. We conclude that the record does not support defendant’s assertion that the challenged California conviction in this case was considered by the trial court in imposing sentence.

We also consider in this case that the sentence imposed was not an abuse of discretion on the part of the trial court in view of the extensive criminal record of defendant which he has not challenged. Even had the court considered the third California burglary conviction in imposing sentence that would have been simply cumulative and, therefore, harmless in this case. People v. Calvert (1981), 100 Ill. App. 3d 510, 426 N.E.2d 1218.

Accordingly, this cause is remanded for a new hearing of defendant’s motion to suppress his confession in accordance with the views expressed in our opinion.

Reversed and remanded with directions.

SEIDENFELD, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
    FRANK FAGIANO, Appellant, v. THE POLICE BOARD OF THE CITY OF CHICAGO et al., Appellees. RICHARD W. BASTIAN et al., Appellees, v. PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Appellants.
    First District (5th Division)
    Nos. 80 — 3010, 81 — 0569, 81 — 0863, 81 — 1060 cons.
    Opinion filed April 27, 1984.

      John D. Moss, of Chicago, for appellant Frank Fagiano.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for the City of Chicago.
    Ditkowsky & Contorer, of Chicago (Kenneth K. Ditkowsky, of counsel), for appellee Richard W. Bastían.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago (Saul A. Epton and Gerald B. Mullin, of counsel), for appellee Norman C. Byttow.
    Rick Allen White, of Chicago, for appellee John Green.
   JUSTICE WILSON

delivered the opinion of the court:

Fagiano, Bastían, Byttow and Green (employees), career service employees of the city of Chicago (the city), were discharged from employment following separate hearings before either the city police board (Fagiano) or the city personnel board (Bastían, Byttow and Green) regarding alleged violations of certain departmental rules predicated upon the city’s residency requirement (Chicago Municipal Code (1977), ch. 25, sec. 30), which requires that “[a]ll officers and employees in the classified civil service of the City shall be actual residents of the City.” The circuit court granted the employees’ individual petitions for writ of certiorari requesting administrative review and, following arguments by each, entered orders sustaining Fagiano’s dismissal and reversing the dismissals of Bastían, Byttow and Green.

On appeal, this court affirmed the circuit court’s finding of unconstitutionality in the consolidated case of Bastian v. Personnel Board (1982) , 108 Ill. App. 3d 672, 439 N.E.2d 142, and, reversed the judgment of the circuit court as to Fagiano on the same ground of unconstitutionality. (Fagiano v. Police Board (1982), 108 Ill. App. 3d 1205 (Rule 23 order.)* Pursuant to Supreme Court Rule 315 (87 Ill. 2d R. 315), the Illinois Supreme Court granted the boards’ petitions for leave to appeal and the motion to consolidate both decisions. Confronted solely with the constitutionality issue, the supreme court held that the residency requirement was not unconstitutionally vague, and, accordingly, vacated the judgments of the appellate court and remanded the cause to the appellate court for consideration of those issues not reached on the original appeals. Fagiano v. Police Board (1983) , 98 Ill. 2d 277, 456 N.E.2d 27.

On remand, the following issues are before this court: (1) each employee contends that the decisions of the boards were contrary to the manifest weight of the evidence; (2) Fagiano further claims that: (a) he was found guilty of the wrong charge by the police board; (b) the circuit court’s findings were prejudicially inconsistent; and (c) the hearing officer erred in granting improper continuances which prejudiced his procedural due process rights; (3) Bastían further claims that: (a) he was denied his right to procedural due process during the hearing; and (b) a domicile requires more than the observance of an individual in a suburban community; and (4) Byttow further claims that the personnel board’s order of discharge is invalid on the ground that it is void of findings of fact and articulated standards of proof. For the reasons that follow, we affirm the decisions of the police board and personnel board, affirm the judgment of the circuit court as to Fagiano, and reverse the judgment of the circuit court as to Bastían, Byttow and Green.

a. Frank Fagiano

Effective October 27, 1978, Frank Fagiano, Chicago police officer, was suspended from the police department for a minimum of 30 days after a determination by the superintendent of police that he had violated certain departmental rules, including the requirement “to actually reside within the corporate boundaries of the City of Chicago.” (Rule 25.) Following the initial determination, charges were filed with the police board after which a hearing was conducted during which both sides were represented by counsel. At the hearing, Fagiano testified that since his remarriage in 1975 to the present, he and his wife have changed rental residences in Chicago eight times. In March 1975, Fagiano sublet his apartment on Elm Street to Janet Schart, a co-worker of his wife’s. At that time, Schart helped move some of their clothing and personal belongings to Fagiano’s parents’ home in Bensenville. Shortly thereafter, on May 1, 1975, Fagiano moved to 2538 West Belmont where he lived for a few months behind a sandwich shop that he owned and operated in partnership with a fellow police officer. On August 30, 1975, Fagiano moved to a three-flat building owned by his in-laws on Winchester. Approximately two months later, he moved to a building on Superior where he leased an apartment from the parents of his business partner. In March 1976, Fagiano moved back to the Winchester building owned by his in-laws. A few months later, in July 1976, he moved again to an apartment on Clarendon where he remained for approximately three months, after which he moved to Wrightwood where he and his wife shared an apartment with his wife’s girlfriend and the girlfriend’s son. Four months later, Fagiano moved back to his in-law’s building on Winchester. Evidence revealed that at all of the aforementioned addresses, the lease and utility bills were in Fagiano’s name.

Fagiano’s parents purchased their home in Bensenville in 1969 and hold title in joint tenancy. All utilities for the Bensneville residence are in the father’s name. From 1975 to the present, Fagiano has regularly visited his parents’ home three or four times per week, and he and his wife have stayed overnight there as often as possible. Occasionally, Fagiano leaves for work directly from the Bensenville residence. Fagiano’s three children from his first marriage reside in Melrose Park with their mother and visit Fagiano at the Bensenville residence. Because he moves so frequently, Fagiano uses the Bensenville address as his mailing address.

Janet Schart testified that she has visited Fagiano and his wife at the Bensenville residence three or four times. On cross-examination, Schart admitted that she had purchased furniture from Fagiano and that there remains a controversy as to the amount due and owing which has resulted in a bitter feud between Schart and the Fagianos. In February 1976, Schart wrote the letter to the internal affairs division of the Chicago police department which notified them of Fagiano’s alleged violation of the residency requirement. When no action was taken immediately, she wrote a follow-up letter in January 1977. Fagiano presented an offer of proof intended to impeach Schart’s credibility and both Fagiano and his wife testified as to Schart’s bad reputation for truth and veracity.

Joanna Fitzgerald, former co-worker of Mrs. Fagiano, testified that when she visited the Bensenville residence with Mrs. Fagiano in August 1975, she observed clothing belonging to Fagiano and his wife, including a police officer’s uniform. On cross-examination, Fitzgerald stated that she and Mrs. Fagiano had had an altercation and were no longer friends. She was, however, a friend of Janet Schart. Both Fagiano and his wife testified as to Fitzgerald’s bad reputation for truth and veracity.

Leroy Dorff and Paul Bendis, Chicago police officers, testified that during their surveillances of the Bensenville address, they had observed Fagiano leaving the residence on three separate occasions in an automobile registered to him. Two of the surveillances had been made in the early morning hours on days that Fagiano was on duty. The third surveillance had been made in the afternoon. The record is unclear as to whether Fagiano had been on duty the day of the third surveillance. On a separate occasion, in February 1977, Officer Bendis and another officer accompanied Fagiano to his alleged residence on Wrightwood in order to view the premises. Although the apartment appeared to be lived in, Fagiano had no police uniforms there, and, with the exception of one pair of blue jeans on the bed, had no civilian clothing in the apartment.

b. Richard W. Bastían

Bastían, a career service firefighter employed by the Chicago fire department, was charged with violating the residency requirement and certain rules and regulations of the Chicago fire department “in that on or about September 19, 1979, and prior thereto, he was not an actual resident of Chicago.”

At the personnel board hearing, Bastían testified that in 1969 he built a house in Niles as a business venture. He and his estranged wife still hold title to the house as joint tenants. Shortly after the house was built, Bastían and his wife unofficially separated, and were legally separated six years later. Mrs. Bastían and their four children have remained in the Niles residence while Bastían has rented apartments in Chicago, most recently on Lincoln Avenue. Mrs. Bastían is unemployed and Bastían pays all maintenance costs, taxes and mortgage payments on the Niles residence. He and his wife file joint tax returns. The Bastían children either attended or still attend Niles schools. Bastían admitted to staying overnight in Niles on occasion, but had no idea how often he had done so. Approximately one week prior to the hearing, Bastían and his wife reconciled and moved together to an apartment on East River Road in Chicago. Those children not currently in college continue to reside in the Niles home. Bastian’s automobile is registered in Chicago, he banks and last voted in Chicago, and has phone bills, credit cards, and insurance policies in his name which all bear a Chicago address.

Thomas Pleines, investigator for the Chicago fire department, testified that he had conducted early morning residency surveillances of the Niles residence on three separate days that Bastían was scheduled to be on duty. On one occasion, Pleines had observed Bastían leaving the Niles residence in a brown Datsun. On another occasion, when the Datsun was parked one block over from the Niles residence, he observed Bastían cut through the back yards from the direction of the Niles residence, enter the car and drive away. On the third occasion, Pleines had observed Bastían driving out of the Niles driveway. Within a week or two of the surveillances, Pleines had conducted a canvas of the Niles neighborhood at which time he talked with several of the neighbors. Three neighbors had recognized a photograph of Bastían, and two of the three had indicated where he lived.

Edmund Beauregard, investigator in the internal affairs division of the Chicago fire department, stated that, pursuant to information gleaned from Bastian’s personnel file, the 1978 real estate tax bill on the Niles residence was in Bastian’s name, the Niles phone number is listed in Mrs. Bastian’s name, and Bastian’s Datsun is registered to him at the Lincoln Avenue address. Beauregard also testified that on four separate occasions, while conducting early morning residence surveillances of the Niles address, he had observed Bastían leave the house and drive away in the Datsun. It was later verified that Bastían was at work on those days. On a fifth occasion, Beauregard had observed Bastían leave the Niles residence at 6:20 a.m. and proceed to load the hatchback. Beauregard never observed the Lincoln Avenue address.

Captain James J. Ryan, Director of the Bureau of Inspectional Services for the Chicago fire department, testified that he had conducted early morning residency surveillances at the Lincoln Avenue address on two occasions and had never observed Bastían enter or leave the building. It was later verified that Bastían had been at work those days.

Marion Bastían, plaintiff’s wife, testified that, pursuant to the separation decree, Bastían is obligated to maintain the Niles residence and to pay all expenses. However, the utility bills are in her name only. Mrs. Bastían stated that plaintiff did not have a key to the residence and had not stayed overnight during the period from January to September 1979. She recalled telephoning her husband in the early morning on occasion to ask him to stop by to repair something. However, she did not recall how often she had made such requests, or at what time.

In support of his motion to dismiss at the conclusion of the city’s case, Bastían attached 25 affidavits, all allegedly attesting to the fact that he resided at the Lincoln Avenue address. The affidavits were form documents on which the affiants circled those statements to which they could swear and then signed the documents. Pursuant to the affidavits, each affiant stated that: (a) he was duly sworn; (b) he had personal knowledge of Bastian’s domicile on Lincoln Avenue in Chicago, which knowledge was obtained by personally visiting him, by being aware of where he voted, and by seeing his personal check; and (c) Bastían was separated and living apart from his wife. However, when the affiants testified at the hearing, it was revealed that none of them had been duly sworn or had had their signatures properly notarized, that only five had actually been inside Bastian’s apartment, only four had ever seen Bastian’s personal checks, and none had personal knowledge as to where Bastían voted.

c. Norman C. Byttow

Byttow, fire engineer for the Chicago fire department, was charged with violating the residency requirement as well as related Chicago fire department rules and regulations “in that on or about September 4, 1979, he was not an actual resident of the City of Chicago.”

At the personnel board hearing, Byttow testified that he owns and resides in a four-flat on Langley Avenue in Chicago that he had purchased in joint tenancy with his wife and another couple, the Hameetmans, in 1964. Before retiring from his job as a Chicago firefighter, Hameetman had shared the same unit in the four-flat with Byttow. The wife and children of both Hameetman and Byttow lived in the suburbs. When Hameetman retired, he sold his interest in the four-flat to another firefighter and joined his wife and children in Peotone. In 1969, Byttow and his wife, as joint tenants, purchased a home in Dolton, Illinois. Byttow never “fully” moved into the Dolton residence, but lived “between” his Chicago address and the Dolton residence until he and his wife were separated in 1974.

Byttow’s three children and his estranged wife currently reside in Dolton. All of the Byttow children either attended or still attend Dolton-area schools. Although his wife works as an automobile salesperson, Byttow pays her $500 per month plus he pays the mortgage, all household maintenance costs and all other bills. In addition to his firefighting duties, Byttow is self-employed as a carpenter and maintains his business office at the Dolton address. The business office has a separate entrance and is equipped with its own washroom, bar and daybed. Because his office is in Dolton, Byttow can be found at the Dolton residence at various times. He often drives to the office as early as 5:30 or 6 a.m. to pick up supplies or to do paper work before starting his firefighter job. On or about September 4, 1979, he was at the Dolton address nearly every day because of a big remodeling job on which he was working. Byttow estimated that he had spent an average of two hours per day, five days per week, at his Dolton office in September 1979. Further, when his wife worked late, he would stay and watch television with the kids. Byttow has free access to the house and leaves his laundry there for his daughter to wash.

Byttow owns several cars and a van, all of which are registered to the Chicago address. He keeps most of his carpentry tools in the van and parks it in the driveway of the Dolton residence when he is there. Operating and maintenance costs of the four-flat building are split between the owners. Byttow’s driver’s license, voter’s card and his personal checking account all bear the Chicago address, while his business account and business phone are registered to the Dolton address. The business phone can be answered anywhere in the residence. Byttow further indicated that when he is on duty (nine days per month), he sleeps at the firehouse.

Donald McGreal, Chicago fire department investigator for internal affairs, testified that he had conducted a surveillance of the Dolton address on eight occasions. Two of the surveillances had taken place approximately midnight or shortly thereafter, at which times he had observed Byttow’s van parked in the driveway, and his Ford Mustangs parked in front of the house. When McGreal returned later in the morning on those two days as well as on four other mornings, he saw Byttow leave the residence in the van approximately 7 a.m. It was later verified that Byttow had been at work on those days. Mc-Greal never conducted a surveillance at the Chicago address.

In October 1979, when McGreal conducted a resident canvas of the Dolton neighborhood, five of the neighbors identified Byttow’s photograph. Two of the five would not indicate whether he lived in the Dolton residence, two indicated that he did, and the- record is unclear as to what, if anything, the fifth indicated. In May 1979, Mc-Greal conducted a canvas of the Chicago building. Of the two mailboxes at the building, one had the names, “Hameetman, Byttow and Janusz,” on it; the other had no name on it. McGreal spoke with one tenant who did not know Byttow and who, in fact, said that no one lived in the apartment that Byttow claimed to occupy. The neighborhood was run-down and was primarily Spanish or Mexican.

William Rotlof, a civilian investigator for the Chicago police department, had conducted a residency canvas in Dolton in October 1979, at which time three neighbors had recognized Byttow’s photograph and had said that he lived at the Dolton address.

In Byttow’s behalf, Paul Potocki, self-employed construction worker; Robert Paholke, owner of a lounge which Byttow remodeled; Gordon Guntner, self-employed plumbing contractor; Roger Christ, self-employed cabinet maker; and Dominick Massoglia, Chicago firefighter, all testified that they had visited Byttow at his Chicago apartment on numerous occasions, and at various times of the day and night over the past few years, and that the Chicago address was his residence.

The aforementioned testimony concluded the April 1980 hearing. Following the personnel board’s order that Byttow be discharged, Byttow filed a complaint for administrative review in the circuit court which resulted in the cause being remanded to the personnel board for an additional hearing. When the hearing resumed, Clarence Hameetman, retired Chicago firefighter and self-employed plumber, testified that he had lived at the Chicago address with Byttow for 10 years, until October 1978, when Hameetman retired from the fire department and joined his wife and children in Peotone.

Robert Suster and George Nolan, Chicago firefighters and self-employed contractors who have worked frequently with Byttow, testified that Byttow lived at the Chicago address for the period in question. Both stated that they had been inside his apartment. In addition, Jane May, a tenant at the Chicago address, and Byttow’s two children testified that Byttow had lived at the Chicago address for the period in question.

d. John Green

Green, an engineer technician for the Chicago water department, was charged with violating the residency requirement and certain personnel rules in that “on or about May 20, 1980, and prior thereto, he was not an actual resident of the City of Chicago.”

At the personnel board hearing, Green testified that he moved to his current “hotel-type rooming house,” located on Clark Street in Chicago in 1977, and, prior to that, had lived on Pine Grove in Chicago. His room is furnished with a bed, chairs and a dresser, but has no closet, washroom (washroom is in the hall), stove, refrigerator or telephone. Green separated from his wife, a registered nurse, in 1974 because she refused to live in Chicago. They were not legally separated until September 1976. In 1977, Green and his estranged wife, as joint tenants, purchased a home in Wheaton where Mrs. Green and their 10-year-old son currently reside. At the time that the house was purchased, Green lived there for a few weeks “until everything settled.” Green helps with the yard work and general maintenance. He did not recall in whose name the Wheaton phone bill or utility bills are addressed. However, the real estate tax bill is in both names. The Greens file joint tax returns and receive refunds, if any, at the Wheaton address. In addition, joint credit cards are billed to the Wheaton address. Green has a checking and savings account at a Chicago bank and a joint account with his wife at a Wheaton bank. The two social clubs to which Green belongs are located in the south suburbs. Pursuant to the separation decree, Green is obligated to pay his wife $600 per month, but actually pays her more than this.

- Green keeps half of his personal clothing at the Wheaton address, spends the Christmas holidays there, and eats dinner there with his son three or four times per week. During 1979, Green spent three or four nights in Wheaton and spent the entire first three months of 1980 there because of his wife’s health problems. Green owns two cars, one jointly owned with his wife, the other owned solely by him. The latter has a Chicago vehicle sticker. The insurance bills for both cars are mailed to the Wheaton address and Mrs. Green pays the premiums with money given to her expressly for that purpose by Green.

Yvonne Green, Green’s wife, testified that her husband stayed overnight at the Wheaton residence whenever she had difficulty obtaining a sitter for their son who has minimal brain damage. Because she now works the 3 p.m. to 11 p.m. shift, Green sometimes prepares dinner for himself and their son, but does not spend the night.

Lydia Conlisk, residency investigator for the Chicago police department, testified that during the period from December 1979 through March 1980, she had conducted five separate early-morning surveillances of Green’s alleged Chicago residence and six separate surveillances of his alleged Wheaton residence. While observing the Chicago residence, Conlisk had never seen Green enter or exit the building. It was later verified that he had been on duty on those days. By contrast, on each of the Wheaton surveillance dates, Conlisk had observed Green exit the Wheaton house approximately 7 a.m., enter his car and drive to the Chicago and Northwestern train station. A later verification on each of those days revealed that Green had been working. In addition, Conlisk had conducted a neighborhood canvas of each of the areas. The owner of the Clark Street building stated that Green had lived there for about five years, but that he had never seen Green. Conlisk further stated that the Wheaton utility bills were in Mrs. Green’s name, Green’s automobile was registered to him at the Clark Street address and Green was registered to vote in Chicago.

Opinion

I. Common Issue: Manifest Weight

On appeal, each employee asserts that the board’s decision to discharge was contrary to the manifest weight of the evidence. We disagree. It is well established that if there is any evidence in the record that supports an administrative agency’s decision, that decision is not contrary to the manifest weight of the evidence and must be sustained on judicial review. (Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458, 423 N.E.2d 230.) Moreover, it is particularly within the province of the administrative agency to resolve any factual conflict presented by the evidence and to determine the credibility of the witnesses. (Schnulle v. Board of Fire & Police Commissioners (1974), 16 Ill. App. 3d 812, 818, 306 N.E.2d 906.) Simply because a reviewing court finds that an opposite conclusion might be equally as reasonable or that it would have reached a different conclusion is not sufficient ground to set aside the agency’s decision. (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 654, 456 N.E.2d 998.) To do so, the facts must indicate that an opposite conclusion is clearly evident. Kelly v. Police Board (1975), 25 Ill. App. 3d 559, 564, 323 N.E.2d 624.

In the present consolidated appeal, we find Fagiano v. Police Board (1983), 98 Ill. 2d 277, 456 N.E.2d 27, and O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998, dispositive of the manifest weight issue. In Fagiano, the Illinois Supreme Court resolved a long-standing controversy and interpreted the term “actual residence,” as used in the residency requirement, to be synonomous with “domicile,” which it had earlier defined in Peirce v. Peirce (1942), 379 Ill. 185, 39 N.E.2d 990, as “the place where a person lives and has his true, permanent home, to which, whenever he is absent, he has an intention of returning.” 379 Ill. 185,192.

Shortly thereafter, confronted with a manifest weight issue and factual circumstances substantially similar to those before us now, the court in O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 456 N.E.2d 998 began its analysis with the recent supreme court interpretation of “actual residence,” and proceeded to analyze the applicable law governing domicile to determine whether the personnel board’s decision was supported by the evidence. In affirming the board’s decision, the O’Boyle court focused on the following legal principles: (1) a person can have only one domicile; (2) once a domicile is established, it continues until a new one is acquired; (3) there must be actual abandonment of a former domicile with no intent to return; and (4) the new domicile must be acquired with the intent of making it a true and permanent home. (119 Ill. App. 3d 648, 655.) The O’Boyle court further noted that the intent required to effect a change in domicile is generally absent in cases where civilian public employees are required to reside in a certain locale. 119 Ill. App. 3d 648, 656.

Applying the O’Boyle court analysis to the factual situations before us, we conclude that there was sufficient evidence to support the boards’ determinations that none of the employees had abandoned his suburban domicile with the intent not to return, and none had acquired a new domicile in Chicago with the intent of making it a true and permanent home. Accordingly, we find that the boards’ decisions were not against the manifest weight of the evidence.

II. Fagiano Only

In addition to his manifest weight argument, Fagiano contends that: (1) he was found guilty of the wrong charge by the police board; (2) the circuit court’s findings were prejudicially inconsistent; and (3) the hearing officer improperly granted continuances.

In the formal notice of charges brought against Fagiano by the police department, dated October 26, 1978, Fagiano was charged with violating, inter alia, Rules 2 and 25 of the Rules of Conduct of the Rules and Regulations of the Chicago police department. Under the heading “Specifications,” the notice set forth those specific acts which were found to have violated the various rules. With respect to Rule 2, a general misconduct rule, the specifications stated that Fagiano “has been actually residing since 1975 at 810 River Forest Drive Bensenville, Illinois.” With the exception of the clause, “since 1975,” the specification pertaining to Rule 25, the residency rule, was identical to that stated for Rule 2.

At the hearing, Fagiano moved to dismiss the Rule 25 charge on the ground that the absence of a time frame in the Rule 25 specification precluded him from preparing a proper defense. When reminded by the city that the specification for Rule 2 provided the necessary time frame, Fagiano’s counsel retorted, “I’m not asking for the Rule 2 allegation to be dismissed. I’m asking for the allegation of violation of Rule 25 to be dismissed.” The hearing officer agreed that there was insufficient specificity regarding the allegations relating to Rule 25 and, over Fagiano’s objection, granted the city’s motion to amend the pleadings to add “since 1975” to the Rule 25 specifications.

Subsequently, in the findings and decision of the police board, issued on March 28, 1979, the police board erroneously set forth the Rule 25 charge in its pre-amendment form, i.e., without the clause “since 1975.” The findings and decision did, however, include the Rule 2 charge which contained the appropriate time frame. Fagiano claims that, as a result of the police board’s misstated Rule 25 finding, he was found guilty of the wrong charge. In our opinion, Fagiano’s argument is an unpersuasive attempt to extol form over substance. Both the Rule 2 specifications and the amendment made to the Rule 25 specifications during the hearing sufficiently notified Fagiano of the charges and established the time frame. Although it is clear that the board did misstate the Rule 25 finding, the misstatement was nothing more than an inconsequential clerical error which did not prevent Fagiano from presenting a vigorous and thorough defense to the circuit court regarding the relevant time frame or prejudice him in any other way.

Fagiano next contends that the circuit court’s findings were prejudicially inconsistent in that the court reversed the board’s Rule 2 finding and affirmed the Rule 25 finding. Fagiano argues that if he is not guilty of violating Rule 2, he cannot be guilty of violating Rule 25 which is grounded on the same act. Fagiano’s untenable argument is the result of a serious misconception on his part that the reversal of a finding is synonomous with a determination of not guilty. To the contrary, absent an express determination of “not guilty,” the effect of a court’s reversal of a particular finding or allegation is to cancel or nullify the finding. It is not a determination of guilt or innocence of the charge. While the record is not clear as to the court’s rationale for its findings, the law is clear that dismissal of the Rule 2 charges was not inconsistent with affirmance of the Rule 25 charge.

Finally, Fagiano contends that the numerous continuances granted by the hearing officer, over his objections, severely prejudiced him in preparing his defense and securing his witnesses. The record and briefs, however, are void of any explanation as to how he was actually prejudiced. Pursuant to the police board rules governing administrative hearing procedures, it is within the hearing officer’s discretion to grant continuances. Upon reviewing the record, we find no abuse of that discretion. To the contrary, those continuances granted because of an overlooked court holiday, motions filed instanter, and insufficient paper for the court reporter’s machine were unquestionably proper and in no way suggest dilatory or otherwise improper tactics. Accordingly, we affirm the judgment of the circuit court as to Frank Fagiano.

III. Bastían Only

In addition to the manifest weight issue, Bastían contends on appeal that: (1) he was denied a fair hearing; and (2) the term “domicile” must be more precisely defined.

Bastían claims that he was denied a fair hearing because of the “refusal of the defendants to produce their records, the destruction of notes, the rush to a hearing without giving the plaintiff adequate time to prepare, the blatant admission of unreliable hearsay from a witness who testified three times that he had no independent recollection (actually it was four times), and the rendering of decision on issues not presented in the tendered charges.” We shall address these allegations in the order in which they are stated.

First, it is difficult to discern from Bastian’s brief exactly what records and notes he is referring to in his allegation. We can only assume, based on his subsequent references to the fire department investigators, that he is referring to the preliminary notes taken by the investigators during the Niles canvasses. At the hearing, Bastían placed great emphasis on the fact that, after dictating their final, signed reports from their notes, the investigators destroyed the notes according to standard departmental procedure. Apparently, Bastían does not consider the investigators’ signed reports, transcribed and retained in the ordinary course of business, sufficient verification of the information gleaned from the neighbors during the canvas. We reach a different conclusion and find that the investigators’ signed reports, which were readily accessible to Bastían, and were admitted into evidence during the hearing, were sufficient verification of the reliability of their testimony. Accordingly, we do not find that the absence of the investigators’ preliminary notes denied Bastían a fair hearing.

We next address Bastian’s contention that he was not given adequate time within which to prepare for the hearing. Preliminarily, we note that pursuant to section 8 of the Administrative Hearing Procedures of the personnel board of the city of Chicago, no more than 10 days is required from notice of charges to the date of the hearing. In Bastian’s case, charges were filed on March 31, 1980, the hearing was originally scheduled for April 15, 1980, and continued to May 5, 1980, at Bastian’s request. On May 5, Bastían filed a motion instanter to dismiss the charges, alleging that: (1) the charges were too vague to allow him to prepare his defense; and (2) the city was estopped from claiming that Bastían lives outside Chicago because the city mailed notice of the charges to Bastían at his Chicago address. After briefly addressing the elusive merits of the estoppel issue, the hearing officer explained that he did not have jurisdiction to decide a motion to dismiss. Rather, it was the personnel board’s function. Thus, the hearing officer agreed to forward the motion to the personnel board for consideration, but declined to delay the hearing pending its decision.

Bastían then argued that he had been prejudiced by the city’s failure to give him the home addresses of 11 of its witnesses. Instead, the city listed the fire department training school on DeKoven Street as the address for all 11. In this regard, Bastian’s counsel stated, “I think we are entitled to a list of witnesses and we are entitled to be served with the documents, we are entitled to have some discovery.” However, when queried by the hearing officer, Bastian’s counsel admitted that he had not as yet filed a motion to produce, claiming that he did not know what discovery he would need until he received specific charges as to where and when Bastían was allegedly residing outside of Chicago. Bastian’s counsel further admitted that he had never tried to contact the 11 witnesses by mail at the address given, nor had he previously requested the city to supply their home addresses or telephone numbers. When reminded by the city that Bastian’s co-counsel had been advised at the initial April 15 hearing to notify the city of any problems in proceeding with the hearing on May 5, Bastian’s counsel stated that he was not aware of that conversation and that “[i]n any case, [he was] not prepared to go ahead” for the reasons already stated. He then reiterated his arguments set forth in his motion to dismiss regarding his failure to receive statements of the witnesses, a list of all witnesses with correct addresses, specific charges as to Bastian’s out-of-Chicago address or subpoena forms. In response, the hearing officer observed that this request appeared to be a motion to produce, which ordinarily would be granted. However, in this case, the hearing had been continued from April 15 to May 5 at Bastian’s request and the granting of that continuance carried with it a responsibility to request or demand production of documents or additional information during that three-week interim period. The hearing officer further explained that those arguments made in defense of the charges were more appropriately reserved for Bastian’s case in chief. With regard to Bastian’s argument that without the correct names and addresses of the witnesses he could not effectively investigate them, the hearing officer replied,

“Okay, if you are going to make a motion in terms of the significance of the addresses of the witnesses, based upon that to
delay this trial, I’m going to overrule you on that motion.
* * *
If you have [the witnesses’] names and you have an address and that address happens to be the City residence or address at a facility that is in the City of Chicago, then the measurement of the propriety of that address is whether or not you can contact them there.
* * *
[T]he relevance is whether or not you, in fact attempted to contact those people using a reasonable procedure or whether or not you were unable to contact them by use of a mailing address is simply that you know something so you can mail and contact parties through the mail. In addition, you could go there on any given day. You could have gone there on any given day to find out if those persons were available for that time.”

Consequently, because the hearing had already been delayed approximately 20 days and Bastían was making his first discovery request at the re-scheduled hearing, the hearing officer ruled that the hearing would commence with the city’s witnesses. However, Bastían was to have the opportunity to review whatever documents were presented and, if after the city’s witnesses testified, Bastían found it necessary to subpoena additional witnesses, the hearing would be continued for that purpose.

Following extensive testimony on the city’s behalf, the hearing was continued to May 22, 1980, at which time Bastían again claimed that he was not ready to proceed because he had not received the information he had requested from the city, nor had he received a copy of the personnel board’s rules or subpoena forms. Bastían then moved to dismiss the charges based on a motion filed the previous day which included 25 affidavits attesting to Bastian’s Chicago residency. The hearing officer reiterated that he had no jurisdiction to rule on the motion to dismiss and would forward it to the personnel board. Further, subpoena forms and rules were available for pick up at the personnel board’s office at City Hall, and there was no reason Bastían could not have acquired these himself with reasonable diligence. However, because the last city witness was unavailable, the hearing was rescheduled as requested to May 27, 1980. On that date, at the conclusion of the city’s case in chief, Bastian’s motion for a directed finding was denied and the matter was continued to June 11 for commencement of Bastian’s case in chief.

When the hearing resumed on June 11, 20 individuals testified on Bastian’s behalf. Nineteen of them were the affiants who had signed the affidavits attached to Bastian’s most recent motion to dismiss. The other was Bastian’s estranged wife. Testimony indicated that none of the affiants had been under oath, none had had his signature notarized, and the majority of them had made false statements.

In our opinion, the preceding synopsis of the hearing illustrates the exemplary efforts made by the hearing officer to assure that all necessary action was taken to avoid delay, maintain order and insure the development of a clear and complete record. Bastian’s claims that he was “rushed” into proceeding without having had adequate time to prepare are simply not supported by the record. Bastían was given ample opportunity to subpoena additional witnesses, he had in excess of one month from the start of the city’s case in chief to the start of his own within which to investigate documents, query witnesses, or otherwise prepare his case. In recognition of the legal axiom that a fair hearing before an administrative agency includes the opportunity to be heard, right to cross-examine adverse witnesses, and right to impartiality in ruling upon the evidence (Lakeland Construction Co. v. Department of Revenue (1978), 62 Ill. App. 3d 1036, 1040, 379 N.E.2d 859), we conclude that Bastían was given that opportunity and he cannot now claim he was prejudiced by his failure to take advantage of it.

Next, Bastían asserts that he was denied a fair hearing by “the blatant admission of unreliable hearsay from a witness who testified three times that he had no independent recollection.” As a general rule, hearsay evidence is not admissible in administrative hearings. (Goranson v. Department of Registration and Education (1980), 92 Ill. App. 3d 496, 501, 415 N.E.2d 1249.) However, section 20(a) of the Administrative Hearing Procedures of the personnel board of the city of Chicago allows for the admission of hearsay that is reliable and upon which a reasonable person could form an opinion. Although Bastían again fails to clearly identify the witness to whom he is referring in his allegation, we assume from our review of the record that he is referring to Thomas Pleines, an investigator for the Chicago fire department, who conducted surveillances and canvasses of the Niles neighborhood in order to gather information regarding Bastian’s residency. In our opinion, Bastian’s hearsay objection to Pleines’ testimony regarding comments made by the neighbors during the canvas was properly overruled by the hearing officer. Contrary to Bastian’s contention, we find that the hearsay testimony met the criterion of reliability in that notations of the comments had been made at the scene and were later transcribed into a report signed by Pleines. Moreover, we find nothing improper about Pleines’ need to refresh his recollection at several different points in his testimony.

Bastian’s final due process allegation that the real reasons for his discharge were his high salary grade level and his union involvement is untenable. This allegation has absolutely no support in the record and, in fact, was never even argued at the hearing. In our opinion, it is nothing more than inflammatory speculation and, as such, is an affront to the integrity of this court.

Finally, Bastian’s argument for a more clear definition of the word “residence” appears to be a hybrid constitutionality/manifest weight argument, both aspects of which have been previously addressed and require no further discussion. Accordingly, we affirm the personnel board’s decision to discharge Bastían. IV. Byttow Only

In addition to his contention that the personnel board’s decision was against the manifest weight of the evidence, Byttow argues on appeal that the board’s findings as articulated in its order of discharge did not constitute adequate grounds for reversal. As support for his position, Byttow relies on Board of Education v. Ingels (1979), 75 Ill. App. 3d 334, 394 N.E.2d 69, Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, 329 N.E.2d 218, and Board of Education v. File (1980), 89 Ill. App. 3d 1132, 412 N.E.2d 1030. After careful review, we find these cases to be inapposite to the present case and, thus, unpersuasive of Byttow’s position.

In Ingels, following an administrative hearing on charges brought against a tenured certificated teacher for teaching deficiencies, the administrative tribunal determined that there was not clear and convincing evidence of a pattern of deficiency. The board of education sought review of the administrative decision, noting that the tribunal had applied the wrong standard of proof. The proper standard was proof by a preponderance of evidence, not the more stringent clear and convincing standard applied by the tribunal. The circuit court reversed the administrative decision. In upholding the judgment of the circuit court, the appellate court stated that when an incorrect standard of proof is applied as in the case of the administrative tribunal, the resulting finding is invalid and, thus, not capable of review. (Board of Education v. Ingels (1979), 75 Ill. App. 3d 334, 337.) As the above indicates, Byttow’s reliance on Ingels as support for the proposition that the hearing officer’s alleged failure to apply any test renders his findings invalid is a gross misapplication of the Ingels holding. Moreover, in the present case, there is no evidence as to what test the hearing officer applied and no requirement that there be such evidence. O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 657, 456 N.E.2d 998.

In Reinhardt, plaintiff, a tenured kindergarten teacher, was discharged for immoral behavior. At the conclusion of the hearing, the president of the board polled the board members on the question whether “reasons or causes” existed for the teacher’s dismissal. The vote was “yes” and the meeting was adjourned. No findings were made by the board. On appeal to the supreme court, the cause was remanded to the circuit court with instructions to remand to the board for further proceedings on the ground that “a decision by an administrative agency must contain findings to make possible a judicial review of the agency’s decision.” (Reinhardt v. Board of Education (1975), 61 Ill. 2d 101, 103.) In direct contrast to Reinhardt, the personnel board in the present case set forth the hearing officer’s findings in its “Findings and Decision of the Personnel Board of the City of Chicago,” thereby adopting those findings as grounds for its decision.

Finally, we disagree with Byttow’s comparison of the findings found inadequate in File and those articulated in the present case. Byttow alleges that the findings in File were “verbose” compared to those before us now. In File, the hearing officer’s finding consisted of a statement that plaintiff’s dismissal was not for just cause and then proceeded to set forth the disciplinary action to be taken. Relying upon Reinhardt and its progeny, the File court found that the finding was “a bare decision, nothing more,” and, consequently, not reviewable. (Board of Education v. File (1980), 89 Ill. App. 3d 1132, 1138.) By contrast, in the present case, the hearing officer made the following findings:

“1. That the Respondent, Norman C. Byttow was at all times mentioned herein an Engineer with the Chicago Fire Department, with career service status.
2. That the Respondent received due and adequate notice of the charges against him, and of the time and place of the hearing in the above entitled cause in accordance with the law.
3. That the Department presented evidence which supports the charges filed against the Respondent Norman C. Byttow.”

In our opinion, the above findings constituted much more than “bare decision” in that they satisfied questions of jurisdiction, procedural due process and sufficiency of the evidence. Such findings, coupled with a clear and complete record of the hearing, are fully capable of review. We further note that there is no statutory requirement for detailed and specific findings of fact by an administrative agency. Where the testimony before the agency is preserved for review, specific findings of fact by the agency are unnecessary to obtain judicial review. (O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 657, 456 N.E.2d 998.) Accordingly, we conclude that the order of discharge pertaining to Byttow was valid and reviewable.

For the reasons enumerated above, we affirm the boards’ decisions to discharge Fagiano, Bastían, Byttow and Green; affirm the judgment of the trial court as to Fagiano; and reverse the judgments of the trial court as to Bastían, Byttow and Green.

Affirmed in part; reversed in part.

MEJDA, P.J., and SULLIVAN, J., concur.

       Although each employee presented separate and independent arguments before the circuit court, each was fundamentally similar in that they were argued before the same judge and all claimed that the respective board’s decision was against the manifest weight of the evidence and, in the alternative, that the residency requirement was unconstitutionally vague and, thus, unenforceable. Fagiano’s case was the first to be heard and an order was entered August 22, 1980, reversing several of the board’s findings, yet sustaining Fagiano’s dismissal based on his violation of Rule 23 for failure to report secondary employment and his violation of Rule 25 for failure to actually reside within the city of Chicago. Fagiano’s motion for a rehearing was denied on October 21,1980.
      Similarly, in orders entered on January 9, 1981, and on January 19, 1981, respectively, the circuit court affirmed the personnel board’s dismissal of Green and Byttow. Less than one month later, in entering judgment as to Bastían, the circuit court deviated from its previous findings and found that the residency requirement’s term “actual residence” is unconstitutionally vague. Based upon the Bastían decision, the circuit court granted Byttow’s and Green’s motions for reconsideration and vacated the January 9, 1981, and January 19, 1981, orders, reversed the board’s decision in each case, and ordered that, if appealed, Byttow and Green should be consolidated with Bastían. In addition, the circuit court noted that its decisions to reverse were based on the issue of unconstitutionality only and that it found the personnel board’s decisions not to have been contrary to the manifest weight of the evidence.

      In Bastían, this court also affirmed the trial court’s refusal to grant attorney fees to Bastían pursuant to section 1988 of the United States Code. (42 U.S.C. sec. 1988 (1976).) In Fagiano, this court further held that because Fagiano’s business partner and fellow policeman received only a one-day suspension for failing to report his secondary employment in violation of Chicago police department Rule 23, it was error to discharge Fagiano for violation of the same rule.

       Rule 2 — Any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department.
      Rule 25 — Failure to actually reside within the corporate boundaries of the city of Chicago.

      Pursuant to section 16 of the Administrative Hearings Procedure of the personnel board of the city of Chicago, discovery is to be made upon written request prior to the hearing and filed with the hearing officer and served upon the corporation counsel’s office.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NORMAN L. TESSIER, JR., Defendant-Appellant.
    Fifth District
    No. 82 — 512
    Opinion filed May 9, 1984.
    Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender’s Office, of Springfield, and Edwin Anders, law student, for appellant.

      J. Lewis Wingate, State’s Attorney, of Vienna (Stephen E. Norris and Raymond E Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

This is an appeal from the circuit court of Johnson County. A jury found the defendant guilty of burglary, felony theft, and misdemeanor theft, and the appeal is from the judgment rendered on the verdict.

On appeal, the defendant asserts (1) he did not knowingly and intelligently waive his right to counsel as required under Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)), since he was silent throughout the court proceedings, (2) the trial court did not conduct an inquiry into his ability to conduct his own defense, (3) the trial court failed to hold a hearing on his competence to stand trial, and (4) the trial court focused on deterrence rather than rehabilitation when imposing sentence.

On March 28, 1982, the defendant was charged with entering John De’s Chevrolet and Oldsmobile dealership in Vienna, Illinois, stealing a car, and then stealing a license plate from Harry Spiller for the stolen car.

On March 29, 1982, the defendant made his first court appearance, without counsel, before Judge Williamson, who read the charges to him. The defendant was then asked by the court:

“Q. Mr. Tessier, do you understand what I have read to you? Answer for the record.
A. (nods affirmatively)
Q. Let the record show that the defendant nodded his head affirmatively. I directed the defendant to answer verbally. The defendant is shaking his head that apparently he’s not willing to answer affirmatively or answer in any respect.”

The court then asked the arresting officer, Neal Watkins, if the defendant could speak. Officer Watkins said that he could. The court read the possible penalties for the crimes with which the defendant was charged and asked the defendant if he understood. Again, the defendant nodded in affirmance. The defendant was told of his rights and was then asked by the court:

“Q. Are you going to hire your own counsel, Mr. Tessier? Did you hear me? Are you going to hire your own lawyer?
A. (nods negatively) [sic].”

Thereupon, the court appointed public defender Mary Collina to represent the defendant.

On March 31, 1983, Judge Williamson held a preliminary hearing for the purpose of considering the public defender’s motion to withdraw. Defendant was present. Mrs. Collina stated that defendant had informed her that he did not want an attorney, that he wanted to represent himself. Throughout this hearing the defendant refused to answer any questions and stood mute. After hearing the arresting officer tell of defendant’s ability to speak, the court permitted the public defender to withdraw as defendant’s attorney.

At a preliminary hearing the court heard evidence from the State, but the defendant did not cross-examine, offered no witnesses and again remained mute. Probable cause was found. When defendant was asked how he pleaded to the charges, he remained mute, and a plea of not guilty was entered.

The court conducted a pretrial conference on May 5, 1982, to set a trial date. Judge Williamson advised defendant to retain counsel but the defendant was mute.

On May 12, 1982, the court held a hearing on its own motion in order to make a more adequate determination as to whether or not the defendant had voluntarily and intelligently waived his right to counsel. The trial court felt this was necessary due to the defendant’s nonresponsiveness in the courtroom at the March 29 appearance. The court explained to the defendant the law regarding his right to counsel and the significance of the hearing. The defendant was again asked if he persisted in representing himself. The defendant did not respond but sat with his fist clenched up against his face and staring down at the floor.

At this hearing, and in defendant’s presence, Mary Collina testified that she had spoken to the defendant on March 31, 1982, and the defendant had told her “in no uncertain terms” that he did not want an attorney because he wanted to represent himself. Mrs. Collina related that she had asked the defendant for certain information relating to his defense and he had refused it, stating that he was going to represent himself, and therefore, was not going to tell her anything about the case or about himself.

Once again in open court the defendant was asked if he waived counsel, and once again he did not respond to the court’s question.

Ely Faulkner, sheriff of Johnson City, testified at this same hearing that two days before the defendant’s arrest he had seen the defendant in a tent at the intersection of Interstate 24 and Route 146, east of Vienna. The sheriff had asked for the defendant’s identification and the defendant had willingly given it. The sheriff also testified that at that same time the defendant asked him if he wanted the defendant to leave. The sheriff told the defendant that he could stay as long as he was not bothering anyone. The sheriff further testified that the defendant could see, hear, and talk freely and had done so on many occasions including March 26 and again on March 28, when he was arrested. Faulkner mentioned that the only time the defendant was uncommunicative was when he was in the courtroom.

The court then offered the defendant the opportunity to question Sheriff Faulkner, but the defendant once again did not respond. The court thereupon concluded, based on the entirety of the record, that the defendant had voluntarily and knowingly waived his right to counsel.

A jury trial was conducted on July 23, 1982. The defendant appeared without an attorney and was unresponsive and mute during the entire trial proceeding. Officer Neal Watkins testified that after the defendant had been arrested and read his Miranda rights, the defendant told him that once Watkins found out who he, the defendant, was, everything would be all right, as the car was his. The defendant did not cross-examine Officer Watkins nor did he offer a defense despite repeated invitations by the court to do so.

Sentencing was set for July 14, 1982. The presentence investigation report indicated that the defendant had refused to speak about his life with the probation officer. At the sentencing hearing, the defendant was again given the opportunity for counsel. This offer was met with no response from the defendant. The court advised the defendant as to sentencing alternatives and asked him if he had anything to say concerning them. The defendant said nothing. The court sentenced the defendant to six years for burglary, four years for felony theft, and 300 days for misdemeanor theft. All of the sentences were to be served concurrently.

On appeal, the defendant contends that he did not knowingly and intelligently waive his right to counsel.

Supreme Court Rule 401(a) (87 Ill. 2d R. 401(a)) provides:

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

At the defendant’s initial appearance before the court, the court complied with the provisions of Rule 401(a) by reading to the defendant the nature of the charges against him, the minimum and maximum penalties prescribed by law, his right to counsel and bail provisions. The defendant nodded to the court in the affirmative when asked if he understood the penalties and charges, and shook his head in the negative when asked if he was going to hire his own attorney. Further, at the hearing to determine if the defendant had knowingly and intelligently waived his right to counsel, the public defender testified in defendant’s presence that the defendant had expressly told her he did not want an attorney and would handle his own defense.

The record in this case shows that the trial court conducted more than a routine inquiry (People v. Templeton (1978), 60 Ill. App. 3d 711, 377 N.E.2d 228) by holding a hearing on its own motion and by repeatedly asking the defendant throughout the trial and sentencing proceedings if he wanted the assistance of counsel and by offering to appoint counsel. The trial court seriously and wholeheartedly recommended to the defendant that he reconsider his decision not to retain counsel. The defendant persisted throughout the entire proceedings in his refusal to answer questions, to accept the offers of help extended by the court and the public defender, to cross-examine the State’s witnesses or to offer any defense in his own behalf. He even refused at the sentencing hearing to discuss the sentencing alternatives presented to him. This conduct was elected by the defendant despite his obvious ability to understand and communicate. He is shown to have conversed readily and freely with the sheriff and his officers and with the public defender on many occasions outside the courtroom. It is obvious that the defendant adopted his “stand mute” strategy as a ploy in the face of overwhelming proof of guilt and the total absence of any defense. The ploy will not work. Defendant was obviously trifling in a cavalier manner with the very system designed and provided for his protection. The record furnishes full justification for the finding of the trial court that the defendant had knowingly and understandingly waived his right to counsel, and we affirm that finding.

Since the defendant was firm in his desire to represent himself, the defendant’s choice to waive his right to counsel and to proceed to trial pro se must be honored although he conducts his defense ultimately to his own detriment. People v. O’Neal (1978), 62 Ill. App. 3d 146, 379 N.E.2d 12; Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.

The defendant next argues that the trial court abused its discretion when it failed to hold a hearing on the defendant’s competence to stand trial which was brought into question by his behavior in court.

A defendant is presumed to be fit to stand trial or to plead and be sentenced. A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10.) When a bona fide doubt of the defendant’s fitness is raised, the court is to order an independent determination of the issue before proceeding further. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(a).) Whether a bona fide doubt exists is a decision which rests largely within the discretion of the trial court which, unlike a court of review, is in a position to observe the accused and evaluate his conduct. People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.

The trial court on its own motion held the very hearing that the defendant contends it did not. The trial court wanted to find out through the hearing if the defendant understood the consequences of his action to waive counsel. The court carefully explained the law and the significance of the law to the defendant. The court also inquired of the defendant’s attorney and the sheriff of Johnson County as to the defendant’s ability to understand and communicate. The public defender testified that the defendant had stated that he wanted to represent himself “in no uncertain terms.” The sheriff testified that the only time the defendant was noncommunicative was when he was in the courtroom.

The defendant’s unwillingness to cooperate with counsel cannot be deemed equivalent to the inability to do so. (People v. O’Neal (1978), 62 Ill. App. 3d 146, 379 N.E.2d 12.) Furthermore, although the defendant displayed a contempt for the process of the court, we see nothing in the record to indicate or suggest that because of a mental condition or any other reason the defendant could not understand the nature of the proceeding and could not assist counsel in his defense. People v. Nicks (1974), 23 Ill. App. 3d 435, 319 N.E.2d 531.

Finally, the defendant urges that as he had no prior convictions the trial court abused its discretion by concentrating on deterrence rather than rehabilitation when sentencing the defendant.

Burglary is a Class 2 felony, for which punishment is a fixed term of between three and seven years. (Ill. Rev. Stat. 1981, ch. 38, pars. 19 — 1(b), 1005 — 8—1(a)(5).) Theft of property exceeding $300 in value is a Class 3 felony, for which the punishment is a fixed term of between two and five years. (Ill. Rev. Stat. 1981, ch. 38, pars. 16— 1(e)(3), 1005 — 8—1(a)(6).) Theft of property not exceeding $300 in value is a Class A misdemeanor, for which the punishment is any term less than one year. Ill. Rev. Stat. 1981, ch. 38, pars. 16 — 1(e)(1), 1005 — 8—3(a)(1).

The defendant was sentenced to six years for burglary, four years for felony theft, and 300 days for misdemeanor theft. All sentences were to be served concurrently.

Where it is contended that a sentence imposed by a trial judge is excessive, even though such sentence is within the limits prescribed by the applicable law, it will not be disturbed unless it appears that such penalty constitutes a great departure from the spirit and purpose of the law. People v. McMorris (1974), 17 Ill. App. 3d 364, 308 N.E.2d 291.

Here it cannot be said that the penalty imposed on the defendant constitutes a great departure from the spirit and letter of the law. Although there was little property damage and no violence, the trial court had no way of knowing about the defendant’s character or history due to the defendant’s lack of cooperation with the court or the probation officer who prepared the presentencing report. The defendant has no home address and there would therefore be a supervision problem if he were to be placed on probation. He has not expressed remorse for his crime. Accordingly, we find no error in the sentences imposed by the trial court. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

For the foregoing reasons, the judgment of the circuit court of Johnson County is affirmed.

Affirmed.

WELCH, P.J., and EARNS, J., concur.


author: JUSTICE EARNS

text:
    THE CITY OF BENTON, Petitioner-Appellee, v. JAMES ODOM et al., Defendants-Appellants.
    Fifth District
    No. 5 — 83—0619
    Opinion filed April 18, 1984.

      Elmer Jenkins, of Benton, for appellants.
    Donald G. Musick and Robert E. Shaw, both of Musick and Mitchell, of Mt. Vernon, for appellee.
   JUSTICE EARNS

delivered the opinion of the court:

This is an eminent domain action. Defendants-landowners, James Odom and Loretta Odom, appeal from the judgment of the circuit court of Franklin County entered upon a directed verdict in favor of the condemning authority, city of Benton. Benton was successful in condemning Odoms’ agricultural property for an avigation easement, a right-of-way and clear zone for its municipal airport. Defendants contend that the court erred by denying their motion to dismiss the petition for condemnation and in striking their affirmative defenses. Defendants also contend that the court erred in disallowing their proffered valuation testimony and, consequently, erred by directing a verdict for damages.

The petition to condemn was filed in August 1979. Defendants traversed the petition with a motion to dismiss, contesting Benton’s right to take or condemn their property. Defendants alleged numerous grounds for dismissal, including failure to state a cause of action; that the petition did not allege facts setting forth the necessity for condemnation; that the airport is not a legally authorized airport; that the ordinances attached to the petition are illegal and void; and that the airport is in violation of the regulations of the Illinois Department of Aeronautics and the Illinois Aeronautics Act.

The court denied the motion to dismiss after arguments. Defendants filed a timely answer. The answer included affirmative defenses alleging the same issues included in the motion to dismiss. After argument, the court granted Benton’s motion to strike Odoms’ affirmative defenses with leave granted to file amended affirmative defenses “limited to the sole issue of whether the City Council of the City of Benton, Illinois abused its legislative discretion in enacting Ordinance No. 1016.” Defendants failed to amend despite a four-month opportunity and a two-week extension of time so to do.

The parties were before the court on several occasions pretrial. In September 1981, the parties appeared for a pretrial conference. The court’s docket entry reads: “Parties announce that discovery is completed and cause ready to proceed to jury trial on value.” In January 1983, the court heard arguments on defendants’ claim for damages to land not taken. In February 1983, the parties appeared to argue Benton’s motion in limine to disallow defendants’ valuation evidence based on residential subdivision use. The court’s docket entry reads: “Parties appear with counsel for Identification of Exhibits and Hearing on all Preliminary matters prior to trial.” Jury trial commenced February 7, 1983. The court entered a pretrial order after finding no objection thereto on the part of defendants. The pretrial order provided “[t]hat the allegations of paragraph 1 of the Petition to Condemn are admitted and the allegations of paragraphs 2 through [the remainder] are true and proved.”

The jury viewed the premises and heard valuation testimony from both sides. Benton’s witness testified regarding value based on agricultural use. Defendants’ testimony regarding value based on a residential subdivision use was stricken. Defendants did not testify as to the property’s agricultural value. Consequently, the court directed a verdict for damages in the amount supported by the evidence presented.

Defendants’ motion to dismiss traversed the allegations of plaintiff’s authority to condemn and of the necessity for the taking. When such a motion is filed, the burden is upon the plaintiff to make a prima facie case of the disputed allegations. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 335 N.E.2d 443.) A prima facie case was established by the allegations of the petition and remained as such notwithstanding respondents’ protestations to the contrary in their motion to dismiss.

The petition to condemn was brought pursuant to section 11— 101 — 1 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 101—1). It is clear that the municipality of Benton has authority and may establish and maintain public airports and provide for safe approach and take-off by aircraft and is authorized to acquire by condemnation any private property for these purposes specified in that section. The petition alleged that the interest sought to be condemned was useful, advantageous and desirable for the city. It had been determined by ordinance duly enacted that it was necessary, convenient and desirable for the city to acquire the interest. The ordinances were incorporated in the petition to condemn.

Defendants’ challenge to Benton’s authority to acquire their property has no merit. Benton has exercised a legislative prerogative and this court will not inquire into the necessity or the propriety of its exercise absent a clear abuse of authority. (Department of Public Works & Buildings v. Keller (1975), 61 Ill. 2d 320, 325, 335 N.E.2d 443, 447.) Furthermore, ordinances adopted by municipalities are presumptively valid. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399.) Defendants have not carried their burden of demonstrating that the ordinances are “illegal and void,” that the airport is not legally authorized and that the airport is in violation of administrative regulations and statutes, although given ample opportunity to do so. Defendants’ motion to dismiss was properly denied, as it was overcome by plaintiff’s prima facie case. Defendants’ assertion that the motion was summarily dismissed without hearing is refuted by the record:

“10/3/80. R W. Whitmer. Parties appear on Motion to Dismiss. Argument heard. Motion denied. Def’t ordered to answer within 28 days.”

Likewise, defendants’ affirmative defenses were not stricken until after arguments on the motion to strike were heard. This was the second opportunity for defendants to argue substantially the same issues that they raised in their motion to dismiss. Again, the record contains no substantial evidence to support these defenses and overcome Benton’s prima facie case. The court properly ordered the affirmative defenses stricken, granting leave “to file new affirmative defenses limited to the sole issue of whether the City Council of the City of Benton, Illinois abused its legislative discretion in inacting [sic] Ordinance No. 1016 [authorizing acquisition].” Defendants failed to file amended defenses of any kind. The next pleading was filed a year and a half later, and that was a claim for damage to property not taken. Defendants’ failure to introduce evidence on these preliminary matters and their proceeding to trial on the question of value constitutes a waiver of these matters. See Department of Public Works & Buildings v. McBride (1930), 338 Ill. 347,170 N.E. 295.

In summation, the record does not establish defendants’ premise that they were denied hearings on either of these matters. Furthermore, defendants failed to object to the pretrial order finding all allegations of the petition admitted or proved. We conclude that all preliminary issues were properly determined prior to jury trial on value.

Defendants contend that the trial court erred in ruling they could not present evidence to prove the highest and best use of their property as residential and present valuation evidence based on that use; however, the court did allow testimony regarding highest and best use as residential but later struck such testimony because it was supported only by inadmissible valuation evidence. The court was correct in striking the testimony.

Defendants cite several propositions of law in support of their argument, among them, “[t]he owner of property appropriated for public use is entitled to its market value for the most profitable use for which it is available, and any capacity for future use which may be anticipated with reasonable certainty, though dependent upon circumstances which may possibly never occur, is competent to be considered by the jury if it in fact enhanced the market value of the land in its present condition and state of improvement” (Crystal Lake Park District v. Consumers Co. (1924), 313 Ill. 395, 406, 145 N.E. 215, 219); “[t]he measure of compensation for land taken by eminent domain proceedings is its fair cash market value for the highest and best use to which it is available, even if, at the time of filing the petition, the land is not being put to such use” (City of Chicago v. Equitable Life Assurance Society of the United States (1956), 8 Ill. 2d 341, 345, 134 N.E .2d 296, 299); and that the condemnee may value his property at the highest and best use to which it is “presently adapted,” even though it is not being applied to that use, citing City of Chicago v. Equitable Life Assurance Society of the United States and City of Chicago v. Harbecke (1951), 409 Ill. 425, 100 N.E.2d 616. These are the general rules, of course, but they are not applicable to the facts presented here.

The Odoms’ property is a farm. Mr. Odom has farmed it for many years. It is zoned agricultural and was subject to existing avigation easements. Mr. Odom testified in his capacity as landowner, and Mr. Reeder testified as an expert witness. In striking their testimony, the court properly distinguished between evidence of the value of unsubdivided land proposed, adapted or available for subdivision purposes and evidence of the value of subdivided land zoned residential and currently being sold for subdivision purposes. Odom and his expert witness attempted to value the property based on the latter, when the property is presently suited only to the former. They testified to value based on highest and best use as residential property but were unable to offer any proof of that value based on the value of comparable property. The evidence they offered was based on value of noncom-parable property and was properly stricken. (See Waukegan Park District v. First National Bank (1961), 22 Ill. 2d 238, 174 N.E .2d 824; City of Chicago v. Pridmore (1957), 12 Ill. 2d 447, 147 N.E.2d 54; Central Illinois Public Service Co. v. Gibbel (1978), 65 Ill. App. 3d 890, 382 N.E. 2d 846; Department of Public Works & Buildings v. Exchange National Bank (1976), 40 Ill. App. 3d 623, 356 N.E.2d 376.) While it is true that part of the land affected was being used for residential purposes and that Odoms had expended labor and expense to adapt this particular property to residential use, it is clear that they attempted to value their farm land as if it were an existing subdivision with a number of lots damaged by the avigation easements. In this regard it is noted that Odoms may have survived a directed verdict had they presented evidence of the value of their agricultural zoned property as unsubdivided and undeveloped land with a present potential for subdivision use. Odoms did not present evidence of value of this sort.

Defendants’ final contention is that the court erred by directing a verdict for the amount of compensation to be paid. We have concluded that the court did not abuse its discretion by disallowing defendants’ proffered valuation testimony regarding residential subdivision use. In view of this and in view of the fact that defendants presented no counter evidence of value, nor any evidence of damage to land not taken, the court properly assessed compensation based on the valuation testimony of Benton’s witness.

Defendants assert that since the jury viewed the property, this provided other and different evidence from that provided by Benton. Consequently, the jury could have decided not to believe Benton’s witness. But if this were true, the jury would be left with nothing but the evidence from its own view. A verdict may not be based upon a jury view only. “ ‘The verdict must be supported by the evidence and can in no case rest solely upon the personal examination of the premises by the jury, however well convinced they may be that their examination furnishes a more reliable basis for an assessment of damages than the testimony of the witnesses.’ ” (Mauvaisterre Drainage & Levee District v. Wabash Ry. Co. (1921), 299 Ill. 299, 318.) The jury must bring in a verdict within the range of the valuation testimony presented. (F. Righeimer, Eminent Domain in Illinois sec. 5.09 (2d ed. 1972).) Here, the jury was not afforded a range to choose within and the question was properly dealt with as a matter of law.

For the reasons stated above, the judgment of the circuit court of Franklin County is affirmed.

Affirmed.

HARRISON and KASSERMAN, JJ., concur.