author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SANTIAGO LABOY-RIVERA et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 82—2231, 83—176 cons.
    Opinion filed June 29, 1984.
    Rehearing denied August 9, 1984.

      James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant Santiago Laboy-Rivera.
    Steven Clark and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellant Juan Andino.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Timothy J. Joyce, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Defendants Santiago Laboy-Rivera (Rivera) and Juan Andino (An-dino) were tried simultaneously before a jury and found guilty of murder, armed robbery and armed violence. Rivera was sentenced to concurrent terms of 50 years for three counts of murder, three counts of armed robbery and armed violence. Andino was sentenced to concurrent terms of 55 years for each conviction.

On appeal, Rivera contends that (1) the trial court erred in denying his motion for severance, and (2) his sentence for felony murder is excessive due to his passive participation in the crime and because it was based on factors inherent in any felony murder. Andino contends that (1) his convictions should be reversed and the cause remanded for a new fitness examination because the psychiatric report as to his competency to stand trial failed to comply with statutory requirements; (2) the improper exclusion of two veniremen because they were opposed to the imposition of the death penalty resulted in a jury which was unrepresentative of the community and which was inherently biased and prone to convict; and (3) his extended-term sentence is excessive because the offense was not accompanied by brutal behavior indicative of wanton cruelty.

Defendants jointly contend that (1) their concurrent extended-term sentences for armed robbery are improper, and (2) their convictions for armed violence and two counts of murder must be vacated.

We affirm in part, reverse in part.

The charges arose from the fatal stabbing of William Klein on July 20, 1981. Neither defendant contends that his guilt was not established. Therefore, we set forth only the facts relevant to our disposition of the issues presented.

Jose Lessale testified that he was sleeping in his basement apartment when he was awakened by noises at 2:30 a.m. on July 20, 1981. He looked out the window and saw Andino standing in front of Klein with a knife in his hand. Lessale further testified that he saw Andino stab Klein repeatedly while Klein was being restrained by Rivera. He immediately called the police. Afterwards, he noticed Andino wipe the blood from his knife and put it in his pocket. Both defendants fled from the scene.

The following day, Lessale saw Rivera walking along Sheridan Road and phoned police. Rivera was taken into custody, where he was interviewed by Detective Robert Elmore. At trial, Elmore testified as to the contents of Rivera’s post-arrest statement. According to Elmore, Rivera stated that he and Andino were walking down the street when they saw Klein sitting on the stoop of an apartment building drinking beer. Andino asked him for a beer. Andino grabbed Klein and demanded his money. While Rivera held Klein, Andino searched his pockets and removed his money. When Klein began to struggle, Andino stabbed him. Both he and Rivera ran from the scene and split the proceeds. Twenty dollars was recovered from Rivera.

Andino was also taken into custody, where he was questioned by Detective Robert O’Leary. O’Leary testified that during the interview Andino revealed that he and Rivera spotted Klein and discussed robbing him. As they approached him, Rivera walked behind Klein and put him into a headlock. Andino asked Klein for his money, searched his pockets and removed his money — about $80. According to O’Leary, Andino admitted stabbing Klein several times. Thereafter, Rivera took Klein’s watch and both defendants ran from the scene.

Rivera testified on his own behalf at trial. On July 20, 1981, he and Andino were walking down Sheridan Road when they saw Klein sitting in front of an apartment building. Andino approached Klein and asked him, “Where is the money you owe me?” An argument ensued. Rivera admitted that he tried to restrain Klein but asserted that he was unable to do so. Klein lunged toward Andino. Rivera saw a knife in Andino’s hand and tried unsuccessfully to push Klein away. Andino stabbed Klein. After he and Andino ran from the scene, An-dino suggested that they go to his house and split the money.

Andino also testified that on July 19, 1981, he met Rivera at Sheridan and Cuyler at about 1:30 p.m. They drank beer, smoked marijuana and took some LSD. Andino testified that he was still under the influence of the drugs several hours later when Rivera suggested that they take Klein’s money. The two men went over to Klein, and Rivera grabbed him from behind and put him into a headlock. Andino went through his pockets and took his money. When Andino started walking away, Klein grabbed him. Andino stabbed him and Klein fell to the ground with blood all over him. Andino further testified that he did not intend to stab or kill Klein. In fact, he was unaware at the time that he had actually stabbed Klein. He also stated he saw Rivera take a watch from Klein, who was lying on the ground. Later, Andino gave Rivera half the money he had taken.

Following closing argument and instructions to the jury, both defendants were found guilty of murder, armed robbery and armed violence. After a death penalty hearing with respect to Andino, the jury was unable to unanimously agree that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Both defendants were thereafter sentenced to terms in the penitentiary.

First, Rivera contends that the trial court improperly denied his motion for severance. Prior to trial, Rivera moved for a severance on the grounds that Andino’s post-arrest statement implicated him. He also alleged that his defense would be antagonistic to that of his codefendant’s. This motion was denied. Rivera further contends that he was prejudiced by the trial court’s refusal to sever the case from Andino’s when the State indicated that it intended to seek the death penalty against Andino. However, at the hearing on the motion, the State argued that Rivera might be eligible for the death penalty, depending on how the evidence unfolded. The court ruled that Rivera’s request for severance was premature and again denied Rivera’s motion.

As a general rule, severance should be granted only where the defenses of the codefendants are so antagonistic that a fair trial cannot be assured without severance. (People v. Guyon (1983), 117 Ill. App. 3d 522, 453 N.E.2d 849.) It is incumbent upon the defendant seeking the severance to make a specific showing, prior to trial, that he will be prejudiced by a joint trial. (People v. Murphy (1981), 93 Ill. App. 3d 606, 417 N.E.2d 759.) The defendant must demonstrate that he and his codefendant have truly conflicting and antagonistic defenses marked by opposition, hostility or discord. Mere apprehension that the defenses may prove antagonistic is insufficient. (People v. Cart (1981), 102 Ill. App. 3d 173, 429 N.E.2d 553; People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.) The decision as to whether severance should be granted rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461.

We find that Rivera failed to point out specific aspects of Andino’s defense that would be antagonistic to his. In Rivera’s amended motion for severance, he outlined what his anticipated defense would be. He stated that although he was present at the scene of the crime, he had no intention of robbing or killing Klein. Furthermore, he alleged that he did not take part in the robbery or murder. Rivera’s motion also included allegations that he believed his codefendant’s defense would be that Andino was not present at the scene and took no part in the robbery and murder. Finally, he alleged that Andino’s post-arrest statement implicated him. During the hearing, Andino’s counsel initially stated that his client’s defense would be similar to that of Rivera’s. However, he subsequently indicated that Andino would not deny that he was present at the scene, contrary to Rivera’s representations. Although Andino’s attorney stated that they would “point the finger” at Rivera and attempt to establish that Andino did not perpetrate the robbery, no facts were put forth to support this assertion.

The instant case is analogous to People v. Lee (1981), 87 Ill. 2d 182, 429 N.E.2d 461, wherein the defendant moving for a severance claimed that his codefendants had made statements that the State would use against him at trial and that their defenses were antagonistic to his. He also argued, as did Rivera in the instant case, that he believed his codefendants’ testimony would implicate him. In upholding the trial court’s denial of defendant’s motion for severance, the supreme court stated that there was no showing before trial that the codefendants’ defenses were antagonistic. Without a detailed and specific showing of antagonism, the court noted, there was no basis on which the trial judge could determine if defendant would be prejudiced. Here, as in Lee, the conclusionary assertions made by Rivera are no substitute for a detailed recitation of what the codefendant’s defense could be and how it conflicted with his. We find that the trial court did not abuse its discretion in denying Rivera’s motion for severance. Moreover, Rivera's failure to demonstrate the prejudice which he would have suffered from a joint trial, combined with the independent evidence establishing his guilt, negated the necessity for severance. People v. Guyon (1983), 117 Ill. App. 3d 522, 453 N.E.2d 849.

Next, Rivera contends that the trial court improperly imposed an extended-term sentence of 50 years’ imprisonment. Rivera argues that the sentence is excessive because it was based on factors inherent in any felony murder and because his allegedly passive participation in the crime mitigated the seriousness of his offense. We reject both arguments.

It is firmly established that a trial court’s decision regarding sentencing will not be altered absent a clear abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Childs (1981), 95 Ill. App. 3d 606, 420 N.E.2d 513.) While Supreme Court Rule 615(b)(4) grants reviewing courts the power to reduce the trial court’s sentence (87 Ill. 2d R. 615(b)(4)), that power must be exercised cautiously because the trial judge is in a better position to assess and weigh all the factors relevant to the sentence. (People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823, cert. denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371, 102 S. Ct. 3490; People v. Childs (1981), 95 Ill. App. 3d 606, 420 N.E.2d 513.) Finally, in evaluating the brutality and heinousness of the offense, the trial judge must analyze the entire spectrum of facts surrounding the incident. People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.

Our review of the record reveals that the trial judge reached its decision after properly considering the respective roles of the code-fendants, the seriousness of the crime and the exceptionally brutal nature of the attack. The evidence establishes that Andino stabbed the victim seven times while Rivera restrained him. Before pronouncement of the sentence, the court commented on the brutality of the offense “*** you [Rivera] showed no mercy to William Kline [sic] when you paralyzed his body so that the repeated thrusts of your co-assistant could end the life of William Kline [sic], whose only crime was living ***.” This court has repeatedly held that multiple stabbings are indicative of wanton cruelty. (People v. Childs (1981), 95 Ill. App. 3d 606, 420 N.E.2d 513; People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.) We find that the record clearly supports the trial judge’s determination that Rivera’s conduct in the instant offense justifies the imposition of an extended-term sentence. Accordingly, Rivera’s 50-year sentence should not be reduced.

We now turn to the issues raised by defendant Andino. He first contends that the psychiatric report as to his fitness to stand trial failed to comply with statutory requirements. (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 15(a).) Relying on People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941, Andino argues that due to the report’s insufficiency, the trial judge was unable to determine whether a bona fide doubt as to defendant’s fitness to stand trial existed, requiring reversal.

Due process is violated when one is required to stand trial when he is not competent to do so. (Pate v. Robinson (1966), 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836; People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767.) A defendant is unfit to stand trial if 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; People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) Once a bona fide doubt as to defendant’s fitness to stand trial is raised, the court must hold a fitness hearing to determine whether defendant is competent. (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677.) Whether a bona fide doubt has been raised is a decision resting largely with the discretion of the trial court. People v. Skorusa (1973), 55 Ill. 2d 577, 304 N.E.2d 630; People v. Green (1983), 116 Ill. App. 3d 815, 452 N.E.2d 767.

In the present case the trial court ordered, at defense counsel’s request, that Andino be examined by a psychiatrist regarding his fitness to stand trial. Following his examination of defendant, a staff psychiatrist from the Psychiatric Institute of the circuit court of Cook County submitted his findings to the trial court which, read as follows:

“Pursuant to Your Honor’s Order, the undersigned psychiatrist examined the above defendant on November 9, 1981.
Based on the above examination, it is my opinion that this defendant is Mentally Fit for trial. He is able to understand the nature of the charge pending against him, and able to cooperate with counsel in his defense.
Based on the above examination, it is my opinion that at the time of the alleged offense, this defendant was Legally Sane. It is my opinion he was able to appreciate the criminality of his act, and able to conform his conduct to the requirements of the law.”

This report is virtually identical to the one received by the circuit court in People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941. In Harris, this court held that the report did not comply with the requirements of section 104 — 15(a)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 15(a)(1)). It failed to render an explanation as to how the diagnosis was reached and the facts upon which it was based. Furthermore, its conclusional terms precluded the trial court from evaluating independently its validity and thereby restricted the court’s ability to determine the necessity of a fitness hearing. People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941.

However, this case is distinguishable from Harris on its facts. The defendant in Harris had a history of therapeutic treatment. Additionally, he was unavailable for the sentencing hearing because he had attempted suicide by eating metal and glass. The court concluded that the trial court erred by refusing to order a competency hearing in reliance on a psychiatric report which did not fulfill the requirements of section 104 — 15(a). The error was not harmless because the bona fide doubt as to defendant’s fitness to stand trial existed, which underscored the importance of statutory compliance. People v. Harris (1983), 113 Ill. App. 3d 663, 447 N.E.2d 941.

In the instant case, defense counsel never presented the court with facts which would indicate that defendant was not fit to stand trial. It is presumed that defense counsel would have informed the trial court if he believed defendant did not understand the proceedings or was unable to assist in his own defense. (People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261.) Moreover, the record is devoid of facts which raise a bona fide doubt as to defendant’s competency. The transcript of the trial and post-trial sentencing hearing indicates that defendant conducted himself in a coherent manner throughout the proceedings. (People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261.) His answers were lucid and articulate and demonstrated that defendant had an understanding of the nature of the proceedings. (People v. Bivens (1981), 97 Ill. App. 3d 386, 422 N.E.2d 1044.) Under these circumstances, any error which occurred as a result of the trial court’s failure to insure that the psychiatric report complied with the requirements of section 104 — 15(a) was harmless.

Second, Andino contends that his conviction should be reversed because the exclusion of prospective jurors opposed to the death penalty resulted in a conviction-prone jury and violated his right to be tried by a jury representative of the community. In Illinois, it is now well established that this argument is meritless. People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346, cert. denied (1982), 456 U.S. 1011, 73 L. Ed. 2d 1308, 102 S. Ct. 2307; People v. Newsome (1982), 110 Ill. App. 3d 1043, 443 N.E.2d 634; People v. Hamilton (1981), 100 Ill. App. 3d 942, 427 N.E.2d 388, appeal denied (1982), 91 Ill. 2d 554.

Third, Andino argues, as does his codefendant, that his extended-term sentence is excessive because the crime was not accompanied by exceptionally brutal conduct. Our prior analysis and disposition of this issue is applicable here. Additionally, the record reflects that the trial judge properly considered the totality of factors surrounding the incident, including the fact that the jury unanimously found that an aggravating factor existed which permitted the imposition of the death penalty before imposing an extended-term sentence of 55 years. Accordingly, we affirm Andino’s sentence.

Both defendants contend that the trial court erred in imposing extended-term sentences for the less serious offense of armed robbery in violation of section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2). Defendants already received extended-term sentences for murder, the most serious offense for which they were convicted. We are cognizant of the fact that this question currently awaits resolution by our supreme court. (See People v. Jordan (1983), 114 Ill. App. 3d 16, 448 N.E.2d 237, appeal allowed (1984), 96 Ill. 2d 546; People v. Rowe (1983), 115 Ill. App. 3d 322, 450 N.E.2d 804, appeal allowed (1984), 96 Ill. 2d 548.) We choose to follow People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684, until such time as the supreme court resolves this issue. In Mims, the court found the trial court’s extended-term sentence for armed robbery was proper under section 5 — 8—2, notwithstanding the fact that defendant also received an extended-term sentence for murder. Therefore, we hold that the trial court did not err in imposing extended-term sentences for defendants’ armed robbery convictions.

Finally, both defendants contend that their armed violence convictions and two of their three murder convictions must be vacated. We agree.

Under People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, multiple convictions for both armed violence and the underlying felony cannot stand where a single physical act is the basis for both charges. Each of defendants’ convictions for armed violence is based on a predicate offense, either murder or armed robbery, and must be vacated. Also, two of each of defendants’ three murder convictions must be vacated because they arose from one act. People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.

For the reasons stated above, defendants’ convictions and sentences for murder and armed robbery are affirmed. Defendants’ convictions for armed violence and two counts of murder are reversed and their sentences vacated.

Judgments affirmed in part, reversed in part.

BUCKLEY, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    JOHN C. WEINER, Plaintiff-Appellee, v. FOREST PRESERVE DISTRICT OF COOK COUNTY, Defendant-Appellant.
    First District (4th Division)
    No. 83—1650
    Opinion filed July 19, 1984.

      Michael W. Ward, of O’Keefe, Ashenden, Lyons & Ward, of Chicago, for appellant.
    John P. Sullivan, of Sullivan & Sullivan, of Chicago (Robert N. Lipsehuitz, of counsel), for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

This action challenges the propriety of a writ of mandamus issued by the trial court which ordered the defendant, Forest Preserve District (District) of Cook County, to pay money to the plaintiff, John Weiner, to enforce eight judgments for special assessment. Between 1914 and 1943, the village of Lyons sought and received the eight judgments confirming special assessments against the District. The judgments were sold as delinquent in the form of “special assessment liens” by the village to a bond company in 1949. The plaintiff in the instant action bought the “liens” from the bond company in 1955.

In August of 1979, the plaintiff demanded payment from the District. The plaintiff’s request was refused and he filed the instant man- damns action on October 5, 1979. The trial court issued a writ of mandamus against the District, compelling it to pay the judgments for special assessment. The District now appeals the trial court's order.

The threshold issue in this appeal is whether the interest purchased by the plaintiff in 1955 can support a cause of action for mandamus. This interest is referred to by the plaintiff at certain times as either a lien on the District’s property or a cause of action to collect money from the District. Each of these characterizations raises different legal implications. As we shall discuss below, any lien theory raised by the plaintiff would be barred by Illinois case law and any argument alleging the purchase of a cause of action would be barred by the statute of limitations. Because the plaintiff can prevail on neither theory, the order of the trial court must be reversed and the writ of mandamus must be quashed.

We shall first address the ramifications upon the instant action if the interest purchased by the plaintiff was in fact a lien. We believe that the Illinois Supreme Court’s decision in Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1946), 395 Ill. 26, 69 N.E.2d 251, controls this issue. In Saline, the court noted that a judgment confirming a special assessment against property owned by a private owner is a judgment in rem which must be enforced against the property, not the individual owner. In contrast, the court found that a judgment confirming a special assessment against a municipal or public corporation cannot create such a lien upon the property. Rather, the judgment must be enforced in personam against the public owner by way of a writ of mandamus. In other words, “[sjuch judgments create no lien against the property [and] [t]hey cannot be enforced by a sale of the property.” (Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1946), 395 Ill. 26, 32, 69 N.E.2d 251, 254.) Thus, under Saline, a lien could not be created against public property and any such attempt to create a lien is without legal effect. Consequently, the plaintiff’s lien theory must fail.

The plaintiff nonetheless attempts to distinguish Saline from the instant action by alleging that Saline arose under the levee act (see Ill. Rev. Stat. 1945, ch. 42, pars. 2 through 5), while the instant case arose under the Local Improvement Act (see Ill. Rev. Stat. 1981, ch. 24, par. 9 — 2—115). The plaintiff argues that the levee act contains a notice provision for the confirmation of an assessment and that a similar provision is not included in the Local Improvement Act. However, we observe that the supreme court’s decision in Saline did not in any way hinge upon this unique provision of the levee act but rather likened drainage assessments to any other special assessment against a public body. (See Saline Branch Drainage District v. Ur-bana-Champaign Sanitary District (1946), 395 Ill. 26, 31-32, 69 N.E.2d 251, 253-54.) We therefore believe that the plaintiff’s arguments concerning purported distinctions between the two acts to be unfounded and we find no merit in his contention that he acquired liens upon the District’s property.

We must next determine whether the plaintiff could prevail against the District if the interest he purchased was in fact a cause of action to collect money from the District. The District maintains that such a claim would be time-barred by the statute of limitations. We agree.

Two separate sections of the statute of limitations have been cited by the parties as being applicable to the plaintiff’s claim. The plaintiff contends that the statute of limitations for the foreclosure of special assessment liens must control. (Ill. Rev. Stat. 1979, ch. 24, par. 9 — 2— 70.) As we have already discussed, no lien rights may attach to the property of a municipal or public body; they may only attach to the property of private individuals. Thus, the statute of limitations cited by the plaintiff is applicable only in regard to the property of individuals and not to the property of public bodies. Because in this case the District is a public body immune from having its property attached by liens, the statute of limitations dealing with special assessment liens is inapplicable to the facts now before this court. We therefore find the plaintiff’s arguments to be misplaced.

The District, on the other hand, cites the statute of limitations for actions for collection of delinquent taxes as being applicable to the plaintiff’s claim. (Ill. Rev. Stat. 1979, ch. 120, par. 892.) That section provides in part:

“Actions for the collection of any delinquent installments of special assessments or special taxes, or the enforcement or foreclosure of the lien thereof shall be commenced within 30 years after such installments became delinquent and not thereafter and after such 30 years the lien on account of any such installment shall be discharged and released. ***”

We agree with the District’s position that this section of the statute of limitations is applicable to the case at bar.

The plaintiff’s exhibits disclose that the so-called special assessment liens were sold as delinquent on January 11, 1949, to a bond company. Under the statute of limitations, the plaintiff had 30 years from that date in which to commence an action to collect the special assessments. Thus, the plaintiff had until January 11, 1979, to file his cause of action in order to avoid the time bar of the statute of limitations. However, the plaintiff did not file the instant action for collection until October 5, 1979. We consequently find that the statute of limitations acted as an alternative bar to the claims raised by the plaintiff.

When the plaintiff’s arguments are viewed in their entirety, it appears that he wishes this court to recognize some sort of hybrid cause of action combining both his lien theory and his argument that he purchased a cause of action to collect money from the District. Specifically, the plaintiff requests that we find his claim not to be a lien for purposes of the Saline decision but then wishes to have the statute of limitations for special assessment liens apply in order to avoid the time bar of the statute of limitations for delinquent installments of special assessments. The plaintiff cannot have it both ways. The purpose of a mandamus proceeding is only to enforce rights already lawfully vested and rights cannot be acquired in such a proceeding. (Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1946), 395 Ill. 26, 69 N.E.2d 251.) Mandamus is not a writ of absolute right but an extraordinary remedy that will not issue in doubtful cases. (Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 374 N.E.2d 932.) In the case at bar, we can find no authority to adopt the plaintiff’s novel cause of action and we do not believe that the extraordinary remedy of mandamus should issue in this case.

For the foregoing reasons, the trial court’s order issuing a writ of mandamus against the District is reversed and the writ of mandamus is quashed.

Reversed.

LINN, P.J., and JOHNSON, J., concur.

      Certain parcels of the property which were benefitted by the assessments were owned by private owners at the time the property was assessed. These parcels were later acquired by the District. In In re Application of County Collector (1979), 79 Ill. App. 3d 151, 398 N.E.2d 392, the court found, based on the Saline decision, that even where a valid lien originally existed on private property, the purchase of the property by a public body extinguished the lien. Therefore, it is irrelevant in this case that certain parcels of the assessed .property originally belonged to private owners.


author: PRESIDING JUSTICE MEJDA

text:
    MELVIN ISENSTEIN et al., Plaintiffs-Appellees, v. EDWARD J. ROSEWELL, County Treasurer and ex-officio County Collector of Cook County, Defendant-Appellant—(Ada Boley et al., Plaintiffs-Appellees, v. THOMAS C. HYNES, Cook County Assessor, et al., Defendants-Appellants).
    First District (5th Division)
    No. 83—2419
    Opinion filed June 29, 1984.
    Richard M. Daley, State’s Attorney, of Chicago (David S. Martin, Assistant State’s Attorney, of counsel), for appellants.
    William J. Harte, Ltd., Kevin M. Forde, Ltd., and Ash, Anos, Freedman & Logan, all of Chicago, for appellees Melvin Isenstein et al.

      Gerard E. Dempsey and Bruce A. Zolna, both of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellees Ada Boley and Glen Boley et al.

   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants appeal from an order of the trial court which granted plaintiffs’ motions for summary judgment and which permanently enjoined the county collector from collecting rollback real estate taxes for 1977 and subsequent years. Defendants contend on appeal that the trial court erred in holding that section 20e of the Revenue Act of 1939, as amended (Ill. Rev. Stat. 1983, ch. 120, par. 5Ole), impliedly repealed sections 20a — 1 through 20a — 3 of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, pars. 501a — 1 through 501a — 3), and that the injunction was therefore improperly issued. For the reasons which follow, we affirm the order of the trial court.

The instant case was brought as a class action. The representative plaintiffs are farm property owners who applied for special farmland valuations of their properties pursuant to sections 20a — 1 and 20a — 2 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, pars. 501a— 1 and 501a — 2). Section 20a — 1 provided for a special farmland valuation for certain qualifying real estate. This valuation was to be made on application by the person liable for the taxes on the property. Unlike the valuation provided by section 20 of the Revenue Act (Ill. Rev. Stat. 1981, ch. 120, par. 501), which was based on fair cash value, the valuation provided by section 20a — 1 was based on fair cash value as measured by the price the land would bring at a fair, voluntary sale for use by the buyer for farming or agricultural purposes. This lower assessment “encourages the continued use of farmland for agricultural purposes by making it economically feasible to continue such use.” (Hoffmann v. Clark (1977), 69 Ill. 2d 402, 428, 372 N.E.2d 74.) Section 20a — 3 provided for a rollback tax which in essence was a recapture provision: when the real property was no longer used for farming or agricultural purposes, the taxpayer became liable for the payment of the rollback tax which equalled the difference between the taxes paid in each of the three preceding years based on the 20a — 1 valuation and what those taxes would have been if based on the section 20 valuation. (Ill. Rev. Stat. 1981, ch. 120, par. 501a — 3.) The purpose of the rollback provision was to discourage diversion of agricultural land to other and possibly more profitable uses. Hoffmann v. Clark (1977), 69 Ill. 2d 402, 428, 372 N.E.2d 74.

In 1976, the circuit court of Du Page County held sections 20a — 1 through 20a — 3 unconstitutional. (See Hoffmann v. Clark (1977), 69 Ill. 2d 402, 372 N.E.2d 74.) During the pendency of the appeal, the legislature adopted section 20e of the Revenue Act (Ill. Rev. Stat. 1983, ch. 120, par. 501e), which provided an entirely different valuation procedure for farmlands. (See O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 408 N.E.2d 204.) Defendants, after the adoption of section 20e, sent letters to plaintiffs which stated that an election under section 20a — 1 was necessary to preserve the farmland valuation of their properties. Plaintiffs complied and paid taxes for the years in question based on the 20a — 1 valuation. Plaintiffs thereafter ceased using the lands in question for agricultural purposes, and defendants accordingly sought to impose rollback tax liability for the preceding three years. Plaintiffs paid the rollback taxes; the trial court entered an order deeming these payments to have been made under protest, and no question concerning this order has been raised on appeal.

The parties stipulated to the material facts and submitted cross-motions for summary judgment to the trial court. The trial court held that the adoption of section 20e impliedly repealed sections 20a — 1 through 20a — 3, by virtue of mutual repugnance, and entered summary judgment in favor of plaintiffs and permanently enjoined defendants from collecting the rollback tax. Defendants thereafter appealed to this court from that order.

During the pendency of this cause in the trial court, the legislature adopted Public Act 83-347 which provided that “Sections 20a — 1, 20a — 2 and 20a — 3 of the ‘Revenue Act of 1939,’ filed May 17, 1939, as amended, are repealed. *** This Act takes effect on becoming a law.” (1983 Ill. Leg. Service, vol. 5, at 2375.) The act was approved on September 14, 1983, and became effective on that date. Ill. Rev. Stat. 1983, ch. 120, par. 501a-1 to 501a-3.

Opinion

Defendants contend that the trial court erred in holding that section 20e of the Revenue Act of 1939 (Ill. Rev. Stat. 1983, ch. 120, par. 501e) impliedly repealed the dual value provisions of sections 20a — 1, 20a — 2 and 20a — 3 (Ill. Rev. Stat. 1981, ch. 120. pars. 501a — 1, 501a— 2, and 501a — 3). Plaintiffs respond initially that this issue was decided by our prior opinion in Isenstein v. Rosewell (1982), 108 Ill. App. 3d 1082, 440 N.E.2d 651, and that defendants are concluded against relitigating this issue.

“The burden of establishing an estoppel by judgment is upon him who invokes it, and to so operate it must either appear upon the face of the record or be shown by extrinsic evidence that the precise question was raised in determining the former suit.” (City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, 512, 39 N.E.2d 26.) Our prior decision was rendered on an appeal from the allowance of defendants’ motion to dismiss, and we concluded under the facts alleged in the complaint that the circuit court had jurisdiction to hear the cause. (Isenstein v. Rosewell (1982), 108 Ill. App. 3d 1082, 1085-86, 440 N.E.2d 651.) This was not a decision on the merits which would bar another action, and our former case is therefore not conclusive upon the decision of the instant matter. Getto v. City of Chicago (1981), 86 Ill. 2d 39, 46, 426 N.E.2d 844; City of Geneseo v. Illinois Northern Utilities Co. (1941), 378 Ill. 506, 513-14, 39 N.E.2d 26.

Defendants argue that the trial court erred in awarding relief in that plaintiffs’ voluntary payment of the lower valuation under section 20a — 1 precludes any relief in the instant case, and they cite Burley v. Lindheimer (1937), 367 Ill. 425, 429, 11 N.E.2d 926, in support of this proposition. Defendants’ argument, as we perceive it, is that plaintiffs have accepted the benefits of the lower valuation under section 20a — 1 and cannot now complain of the imposition of the rollback tax under section 20a — 3. While the general rule is that a party claiming a benefit under a statute may not simultaneously attack the validity of the same statute (see Hoffmann v. Clark (1977), 69 Ill. 2d 402, 411-12, 372 N.E.2d 74), we believe that it would be unduly harsh to apply this rule to the instant case, inasmuch as it was the conduct of defendants which induced plaintiffs’ actions. Had defendants not required plaintiffs to make an election under section 20a — 1, plaintiffs would have qualified for the lower farm valuation under section 20e automatically. (O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 270, 408 N.E.2d 204.) Defendants’ citation to Burley v. Lindheimer indicates their reliance on the voluntary payment doctrine as well. We believe, however, that the threat of valuation at the higher section 20 value constitutes compulsion which precludes application of this doctrine. (Getto v. City of Chicago (1981), 86 Ill. 2d 39, 51-53, 426 N.E.2d 844.) We will accordingly consider the issues on their merits.

In the instant case plaintiffs contend and the trial court held that sections 20a — 1, 20a — 2, and 20a — 3 of the Revenue Act of 1939 were impliedly repealed by the adoption of section 20e of that same statute. We observe that although section 20e did not contain an express repealer, sections 20a — 1 through 20a — 3 were expressly repealed by Public Act 83-347, effective September 14, 1983. (Ill. Rev. Stat. 1983, ch. 120, par. 501a — 1 to 501a — 3). The parties have not argued the effect of this express repeal except as it relates to legislative intent concerning the asserted implied repeal. We note that “[w]here the legislature passes a repealing act and nothing is substituted for the act that is repealed, the effect is to obliterate such statute as completely as if it had never been passed.” (People ex rel. Eitel v. Lind-heimer (1939), 371 Ill. 367, 375-76, 21 N.E.2d 318.) Further, a court of review will apply the law as it exists at the time of decision, rather than at the time of the trial court’s judgment. (Rios v. Jones (1976), 63 Ill. 2d 488, 494-95, 348 N.E.2d 825.) The obligation of the citizen to pay taxes is purely a statutory creation and taxes can be levied, assessed, and collected only in the manner provided by express statute. (People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367, 371, 21 N.E.2d 318.) The express repeal of section 20a — 3, which provided for the rollback tax, leaves defendants without any statutory authority for the assertion of the rollback. “If final relief has not been granted before the repeal goes into effect it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal.” (371 Ill. 367, 373-74, 21 N.E.2d 318.) “The holdings that such a repeal wipes out all remedies under the prior statute and leaves the parties where the repeal finds them, [citations] necessarily makes the repealing act retrospective.” 371 Ill. 367, 376, 21 N.E.2d 318.

People ex rel. Eitel v. Lindheimer pertained to a special remedial statute providing for the credit or refund of excess taxes paid on an over-assessed valuation of property for any year in which the over-assessed valuation was ordered corrected and reduced by a competent tribunal. The supreme court has indicated, however, that this principle applies to statutory causes of action (Shelton v. City of Chicago (1969), 42 Ill. 2d 468, 473-74, 248 N.E.2d 121, citing Hogan v. Bleeker (1963), 29 Ill. 2d 181, 185, 193 N.E.2d 844), and that this is so despite the statutory construction act (Ill. Rev. Stat. 1983, ch. 1, par. 1103). The instant case is distinguishable from Doolin v. Korshak (1968), 39 Ill. 2d 521, 236 N.E.2d 897, in that the statute in Doolin which repealed the Leasing Occupation Tax Act and the Leasing Use Tax Act (Ill. Rev. Stat. 1965, ch. 120, pars. 453.101 and 453.121) provided that:

“ ‘However, any taxes imposed under the Acts repealed by this Act with respect to transactions consummated before this Act takes effect shall continue to be assessed and collected in the same manner and to the same extent as if said Acts were not repealed. Also, claims for credit or refund of taxes paid pursuant to those Acts with respect to transactions occurring before the effective date of this Act, may continue to be filed and shall continue to be disposed of in the same manner and to the same extent as if said Acts were not repealed.’ ” (39 Ill. 2d 521, 523, 236 N.E.2d 897; see also Ill. Rev. Stat. 1983, ch. 120, par. 810.)

No such savings clause was included in Public Act 83-347. (See 1983 Ill. Leg. Service, vol. 5, at 2375.) The legislature could easily have included such a clause in the repealing statue were its intent to preserve actions collecting the rollback taxes imposed by the repealed sections. Consequently, we believe that the legislature did not intend to preserve defendants’ power to assert liability for rollback taxes under the repealed sections. In contrast, the provision for payment of taxes under protest (Ill. Rev. Stat. 1983, ch. 120, par. 675) was unaffected by Public Act 83-347 and, we believe, still provides a mechanism for the recovery of the funds paid.

For the foregoing reasons, we hold that the trial court properly entered summary judgment for plaintiffs and against defendants and properly enjoined defendants from collecting the taxes in question.

Therefore, the order of the trial court is affirmed.

Affirmed.

LORENZ and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK SURLES, Defendant-Appellant.
    First District (5th Division)
    No. 81—2839
    Opinion filed July 20, 1984.

      Steven Clark, of State Appellate Defender’s Office, of Chicago (Julius Lucius Echeles, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Bruce A. Cardello, and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the

court:

Following a jury trial, defendant was convicted of armed robbery and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2, 33A — 2, respectively), and sentenced to 20 years in the Illinois Department of Corrections. Defendant appeals, contending that: (1) the suggestive show-up prior to defendant’s arrest so tainted the subsequent photographic and in-court identifications of defendant by complainant as to fender them inadmissible; (2) the State’s inflammatory and factually erroneous statements made to the jury during closing argument prejudiced defendant’s right to a fair trial; (3) the State failed to prove defendant guilty beyond a reasonable doubt; (4) defendant was erroneously convicted of two offenses carved from a single act; (5) the trial court erred in enhancing defendant’s sentence for perjury it perceived during the course of the trial; and (6) the trial court erred in imposing a general sentence where there had been a conviction on two counts. For the reasons that follow, we affirm the conviction for armed robbery, vacate the conviction for armed violence and remand the cause for new sentencing.

Prior to trial, defendant moved to suppress complainant’s identifi- . cation testimony on the ground that complainant was allowed to improperly view defendant in a one-on-one show-up which, in turn, tainted the subsequent photographic identification. In particular, defendant argued that in the early morning hours of June 6, 1980, shortly after the grill at which complainant worked had been robbed, complainant was taken to the scene of an automobile accident by the police for the sole purpose of identifying defendant, driver of one of the automobiles involved in the accident, as the robber. Upon arriving at the accident scene, complainant was informed that the passengers had been taken to St. Anthony’s Hospital in Chicago. The police officer then drove complainant to the hospital, where she was taken to the police room. While sitting in the police room, complainant had her back to the doorway. However, she happened to turn toward the doorway just as defendant was wheeled by on a stretcher by hospital personnel. Complainant denied that she was directed by anyone to look toward the door at that particular moment. When she saw defendant, complainant unhesitatingly and voluntarily told the police officer that he was the man who had robbed the grill. The following day, complainant was shown a photographic lineup at the Forest View police station from which she identified photos of both defendant and his companion, Freddie Anderson.

In an attempt to demonstrate an independent basis for the photographic identification, complainant testified on behalf of the State that on June 6, 1980, approximately 1:30 a.m., she was working by herself at Ed’s Grill in Forest View when defendant and a companion entered the grill, each carrying a sawed-off weapon. Defendant sat down at the counter and told complainant that this was a “stick up.” The grill was well-lit with fluorescent lights, enabling complainant to have a clear view of defendant. After defendant and his companion left the grill with the money from the cash register, complainant immediately called the police. When they arrived, she described defendant as a black male, approximately six feet tall, 175 pounds, between 25 and 30 years old, with a mustache, medium afro, no scars, wearing blue jeans and no shirt. In addition, complainant told the police that she had seen defendant at the grill several times prior to the robbery. However, she did not know his name.

At the conclusion of testimony, the trial court granted that portion of defendant’s motion requesting suppression of the hospital identification, but denied that portion requesting suppression of the subsequent photographic identification. In so ruling the court found that the hospital identification was unnecessary and suggestive, but that complainant’s prior acquaintance with defendant established an uninfluenced, independent basis for the photographic identification and any subsequent in-court identification.

Thereafter, defendant moved that the evidence of the reckless homicide be suppressed, arguing that the reckless homicide and the armed robbery were not connected in any way and that information of the death of a 16-year-old in the other car would severely prejudice defendant. The trial court ruled that evidence of the reckless homicide was admissible to show flight, but that no evidence could be presented regarding the death of or injuries to anyone involved in the accident.

At trial, complainant testified that she was employed at Ed’s Grill, 4700 South Laramie, Forest View, as a short-order cook and waitress. On June 6, 1980, she worked the 10 p.m. to 6 a.m. shift by herself. Approximately 1:30 a.m. that day she was sitting at the counter on the customer side, looking at a quilting magazine entitled “Craft,” when defendant and a companion entered the grill. There were no other customers in the grill at the time. Complainant recognized defendant, but not his companion. She did notice, however, that his companion was wearing a blue jean jacket with the word “Zak [sic]” written across the back on a faded decal, blue jean pants and was carrying a “shiny light brown gun” that looked like a sawed-off rifle or shotgun, but was smaller than the “dirty long sawed-off shotgun” carried by defendant. After defendant demanded the money from the register, complainant handed him all the cash and dumped the change from the change drawer into the “Craft” magazine which was laying open on the counter. Defendant picked up the magazine and left with his companion. Approximately $178 had been taken.

Shortly after she notified the Forest View police of the robbery, Officer Glenn David arrived at the grill and drove complainant to the scene of an accident in Chicago. From there, they went to St. Anthony’s Hospital. In the hospital parking lot, complainant was directed to look in the trunk of a Chicago police squad car where she saw the two guns used in the robbery, the blue jean jacket worn by defendant’s companion, and some change in a brown paper bag.

The following day approximately 2 p.m., complainant met Officer David at the Forest View police station where she viewed a photographic lineup of eight photos of male Negroes. From these photos, complainant identified defendant and his companion. At this point in her testimony complainant made an in-court identification of defendant as the man who robbed the grill. Further, she identified the guns used by defendant and his companion during the robbery the jacket worn by the companion at the time of the robbery the magazine in which she had put the change from the change drawer, a photo of the photographic lineup from which she identified defendant and his companion, and the photos themselves that she had identified at the lineup.

On cross-examination, complainant stated that she had told the Forest View police that she recognized defendant as a previous customer at the grill, but she did not specifically tell the police that she had waited on defendant 20 times. She first saw defendant in the grill approximately five years ago and remembered him because he had been extremely arrogant and hostile on several occasions over the five-year period. In fact, she had called the police twice because of defendant’s unruly behavior. However, each time defendant left the grill before the police arrived. Complainant had not heard or seen a car leaving the area of the grill after the robbery.

Next, Frank Miulli, Chicago firefighter paramedic, testified that on June 6, 1980, approximately 3:30 a.m., he was dispatched to the scene of an automobile accident in the area of 18th and Pulaski. When he arrived at the scene, he saw a brown vehicle and a white vehicle. Defendant was conscious and seated in the driver’s seat of the brown vehicle, wearing blue jeans and no shirt. The passenger, wearing a blue jean jacket and blue jeans, was sprawled across the front seat, unconscious.

After Miulli removed defendant from the vehicle, defendant told him that he wanted to get some money that he had left on the passenger side. Miulli then walked over to the passenger side where his partner shone a flashlight inside the car to locate the money. At that point, the partner spotted two sawed-off weapons which he gave to the Chicago police officer at the scene. On the witness stand, Miulli identified the guns removed from defendant’s automobile and the blue jean jacket worn by defendant’s companion.

Officer Daniel Chorowicki of the Chicago police department then testified that on June 6, 1980, approximately 3:30 a.m., he was at the scene of an automobile accident in the vicinity of 16th and Pulaski when he observed a paramedic recover two sawed-off weapons from a brown vehicle and hand them to a Chicago police officer who put them in the trunk of his squad car. At that time, Chorowicki remembered a message he had heard on his radio a few hours earlier regarding a Forest View robbery committed by two male Negroes carrying sawed-off weapons. After calling dispatch for a more detailed description of the offenders, Chorowicki told the other Chicago police officers at the scene that he believed the two men in the brown vehicle were wanted in connection with an armed robbery in Forest View. At this point in his testimony, Chorowicki' identified the weapons removed from the brown vehicle by the paramedic, the jacket worn by defendant’s companion, and made an in-court identification of defendant as the driver of the brown vehicle.

Next, Officer Gary Zuelke of the Chicago police department testified that on June 6, 1980, approximately 3:30 a.m., he observed a brown Chevrolet proceeding th.e. wrong way down a one-way street. When he attempted to curb the vehicle for the traffic violation, the Chevrolet sped off at a high rate of speed. Zuelke then activated his emergency siren and lights and proceeded to chase the speeding car. From the moment that he first observed the brown vehicle until he saw it collide with another car, Zuelke never lost sight of it. At the scene of the accident, Zuelke observed two people in the brown vehicle, one of whom he identified at trial as defendant.

Zuelke further testified that he observed a paramedic lean into the brown vehicle and find two sawed-off weapons, which he handed to Zuelke. After unloading the weapons, Zuelke placed them in the trunk of his squad car. At this point in his testimony, Zuelke identified the weapons. found in the brown vehicle. Zuelke further stated that when he observed the occupants of the brown vehicle, he noted that the driver was wearing blue jeans and no shirt and the passenger was wearing blue jeans, no shirt and a blue jean jacket with the word “Zap” written across the back. After searching the brown vehicle, Zuelke recovered approximately $100 from the floor, put the money in a brown paper bag and placed the bag in the trunk of his squad car. Upon arriving at St. Anthony’s Hospital, Zuelke was given a blue jean jacket with the word “Zap” written across the back, which he also put into his trunk. While at the hospital, Zuelke met complainant, who accompanied him to his squad car to look at the items in his trunk, i.e., sawed-off weapons, jacket and money. Zuelke then identified the weapons and the jacket he had shown to complainant and the magazine he had observed on the floor of the brown vehicle.

On cross-examination, Zuelke stated that he had found only $18.76, primarily in change, scattered on the floor of the car. Further, the brown vehicle was not registered to defendant. Rather, it had been taken in an armed robbery.

After the State rested its case, defendant’s motion for a directed verdict was denied.

Next, Mark Surles, defendant, testified that on the evening of June 5, 1980, he was drinking with some friends at the park at 55th and Shields in Chicago. Approximately 2:30 a.m. the following morning, while on his way to a tavern at 54th and Shields, defendant noticed an empty car, with its motor running, parked near the tavern. He entered the car and drove off to pick up his friend, Freddie Anderson. Later, on the way to his own house to pick up some more money, defendant noticed a police squad car and immediately sped away. He never saw any weapons or money in the car. At that point in his testimony, defendant identified a photo of the brown vehicle involved in the automobile accident as the automobile he had stolen.

Defendant denied ever having been in Ed’s Grill, ever having seen the sawed-off weapons prior to trial, and denied robbing the grill on June 6. Further, defendant stated that he did not remember whether Anderson had been wearing a blue jean jacket on June 6. However, he did recall that on that date he had been wearing white gym shoes, blue jeans and a faded blue T-shirt which the paramedic had removed immediately after the accident. Defendant further recalled seeing the police search the brown vehicle, but did not see them recover anything.

On cross-examination, defendant admitted to going on a joyride in the early morning hours of June 6, 1980, and admitted that he had been conscious when the paramedics took the weapons from the car. Defendant further indicated that he knew the first names of the friends with whom he had been drinking and knew the area in which they lived, but did not know their last names.

After the defense rested its case, Minwer Ballota, a gas station attendant, testified during the State’s rebuttal that he first saw defendant at his gas station on June 5, 1980, approximately 12:50 a.m. At that time, defendant was carrying a gun, approximately 15 to 18 inches long. Ballota then identified the gun defendant had been carrying as one of those recovered from the brown vehicle.

After closing arguments and instructions to the jury, the jury returned with its verdict of guilty of armed robbery and armed violence. Defendant’s subsequent motion for a new trial was denied. Following a hearing in aggravation and mitigation, the court sentenced defendant to 20 years in the Illinois Department of Corrections. Defendant’s timely appeal followed.

Opinion

We first address defendant’s contention that complainant’s inadmissible show-up identification so tainted the subsequent photographic and in-court identifications as to render them also inadmissible.

At the outset, we dismiss as factually distinguishable the United States Supreme Court decisions mistakenly relied upon by defendant. First, in both Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951, and Foster v. California (1969), 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127, testimony at trial regarding a prior illegal lineup identification was held to be the direct result of the illegal lineup and, thus, inadmissible. In the case at bar, complainant never made reference to the inadmissible show-up identification at any point in her testimony. Second, Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, addressed the inadmissibility of evidence derived from an unlawful entry and an unauthorized arrest. In our case, the legality of defendant’s arrest is not an issue. Third, Nardone v. United States (1939), 308 U.S. 338, 84 L. Ed. 307, 60 S. Ct. 266, concerned photographic identification that had become so attenuated from a prior illegal identification as to dissipate any taint and be admissible. In the case at bar, attenuation was never an issue. Rather, the trial court found that the subsequent identifications were admissible on the ground that the State had established an origin independent of the suggestive show-up.

It is axiomatic that once the defendant has established that a pretrial confrontation was impermissibly suggestive, the State may overcome the obstacle that ruling presents by a clear and convincing showing that a reliable origin of recognition exists for subsequent identifications independent of the suggestive confrontation. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) As a guideline to determining the reliability of the independent origin, the Illinois Supreme Court set forth the following factors which must be considered in evaluating the likelihood of misidentification: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; (5) the length of time between the crime and the confrontation; and (6) any acquaintance with the criminal prior to the crime. People v. McTush (1980), 81 Ill. 2d 513, 521, 410 N.E.2d 861.

Applying the aforementioned factors to the case at bar, we conclude that the trial court was correct in finding that an independent origin of reliability existed for complainant’s photographic and in-court identifications. First, complainant testified that Ed’s Grill was brightly lit with two fluorescent lights which extended the length of the counter. Further, defendant sat one stool away from complainant and confronted her face-to-face. He was not wearing any type of mask.

Second, although Anderson was also in the grill, complainant’s attention was primarily directed toward defendant. He, after all, was the one who had a sawed-off weapon pointed directly at her and the one who had demanded the money.

Third, complainant’s description of her assailant given to the police immediately after the robbery was accurate and uncontradicted by later testimony. Defendant contends that complainant was not “able to identify her assailant with any certitude until she had been prompted into a one-on-one confrontation at the hospital,” and that her “identification *** was remarkable in the spareness of her description.” The record does not support this contention. In fact, complainant described her assailant as a black male, about six feet tall, 175 pounds, between 25 and 30 years old, with a mustache, medium afro and no scars. She then proceeded to describe what both defendant and his companion had been wearing and what their weapons looked like. Contrary to defendant’s contention, we find complainant’s description remarkably thorough and accurate. Defendant attempts to exploit the fact that at trial he had a very noticeable tattoo about which complainant had failed to comment. We find the absence of testimony regarding the tattoo irrelevant for the simple reason that it was never established that defendant had had the tattoo at the time of the robbery.

Fourth, at no time did complainant hesitate in her identification of defendant. Fifth, only one day elapsed between the robbery and the photo identification. Finally, complainant testified at trial that she had been acquainted with defendant for approximately five years as a customer of the grill and had waited on him approximately 20 times during that five-year period. Moreover, she specifically remembered defendant because of his arrogant, rude behavior on several occasions.

Therefore, based upon the foregoing analysis, we conclude that the trial court properly ruled that the photo identification and in-court identification had reliable origins of recognition independent from the suggestive show-up.

Defendant next contends that the State’s inflammatory and factually erroneous statements made during closing argument prejudiced defendant’s right to a fair trial. Specifically, defendant cites the following alleged errors as a concerted attempt by the State “to prejudice, inflame or create sympathy in the minds of the jurors”: (1) reference by the State to the absence of alibi witnesses for defendant; (2) State’s suggestion that defendant used the robbery proceeds to pay gambling debts; (3) State’s abuse of the court’s decision that no reference could be made to the injuries incurred in the vehicle collision; (4) the State’s improper bolstering of complainant’s credibility; (5) the State’s charge of deliberate misrepresentation by defense counsel; (6) the State’s suggestion that defendant was involved in a chop-shop operation; (7) the State’s comment that defendant could freely admit to stealing the automobile because he was not on trial for that crime.

Upon reviewing the record, we find that defendant has waived review of the first five alleged errors by his failure to object to them at trial (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091) and to raise them with specificity in his post-trial motion. People v. Bell (1975), 27 Ill. App. 3d 171, 176, 326 N.E.2d 507.

Defendant concedes that he did not make timely objections to these errors, but maintains that because of the highly prejudicial effect of the State’s comments during closing argument, this court should invoke the doctrine of plain error as an exception to the rule of waiver and address the alleged errors in their entirety. We disagree. The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. (People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.) We do not find that either of these prerequisites has been met in the case at bar, and, thus, find no reason to depart from the general waiver rule.

Regarding those comments to which there were objections at trial, we note that defendant did not set forth these objections in his post-trial motion with the requisite specificity. Illinois law requires that both steps be taken in order to preserve an issue for appeal. (People v. Lucas (1981), 88 Ill. 2d 245, 250.) We are fully cognizant that defendant raised a general objection to the State’s closing argument, but we do not find it to have been sufficiently specific to have afforded the trial court an opportunity to rule on the alleged errors. People v. Bell (1975), 27 Ill. App. 3d 171, 176, 326 N.E.2d 507.

We note, however, that even if the allegedly erroneous comments regarding the chop-shop and stolen vehicle had been properly preserved in the post-trial motion, when viewed in light of the entire record and argument, they neither constituted a material factor in defendant’s conviction nor resulted in substantial prejudice to the defendant so as to warrant reversal. People v. Adams (1982), 111 Ill. App. 3d 658, 666, 444 N.E.2d 534.

Defendant next contends that the State failed to prove him guilty beyond a reasonable doubt. He asserts that the evidence against him consisted primarily of complainant’s tainted identifications which, even if admissible, were insufficient to sustain his conviction.

Preliminarily, we note that this court will not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 342, 385 N.E.2d 671.) In the case at bar, we do not find that defendant has met this standard for reversal. It is well settled that positive identification by a single witness who had ample opportunity to observe is sufficient to support a conviction. (74 Ill. 2d 329, 343.) Moreover, circumstantial evidence is also sufficient in itself to support a conviction as long as it leads to reasonable and moral certainty that the accused committed the offense. People v. Einstein (1982), 106 Ill. App. 3d 526, 532, 435 N.E.2d 1257.

In the present case, there are not only two instances of admissible positive identification of defendant as the perpetrator of the crime by the sole eyewitness, but there is also an overwhelming amount of circumstantial evidence supporting defendant’s conviction. Paramedic Frank Miulli corroborated complainant’s testimony as to what defendant and his companion were wearing on the morning of the robbery and also identified the sawed-off weapons and blue jean jacket as the items he saw removed from defendant’s automobile after the accident. Earlier, complainant had identified the same weapons as those used during the robbery and had identified the jacket as that worn by defendant’s accomplice. Officer Daniel Chorowicki also identified the sawed-off weapons as those he saw a paramedic remove from defendant’s automobile and identified the blue jean jacket as the one worn by defendant’s accomplice. Further, Chorowicki identified defendant at trial as the driver of the vehicle in which the weapons had been found. Officer Gary Zuelke testified that he had been engaged in an automobile chase with defendant several hours after the robbery and had witnessed the collision involving the automobile that defendant had been driving. At trial Zuelke identified defendant as the driver of the auto he had been chasing and also identified the sawed-off weapons as those given to him by a paramedic who had removed them from defendant’s auto. Further, Zuelke testified that he had found a large amount of change and a magazine entitled “Craft” on the floor of defendant’s auto.

Accordingly, based upon the positive identifications made by complainant and the clear and convincing testimony of the State’s witnesses, we conclude that defendant’s guilt was established beyond a reasonable doubt.

Defendant next contends that the trial court erroneously entered judgment and sentence on his convictions for the crimes of armed violence and armed robbery, as both arose out of identical acts. The State concedes that entering judgment on each conviction was improper and concurs with defendant that the conviction for armed violence must be vacated. We are in accord. Pursuant to People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477, convictions cannot stand on both an armed violence charge and its predicate offense. Rather, judgment must be entered and sentence imposed only on the more serious offense. (91 Ill. 2d 164, 170.) Accordingly, because armed robbery is the more serious offense (People v. Jones (1980), 89 Ill. App. 3d 1030, 1034, 412 N.E.2d 683), the conviction and sentence for armed violence must be vacated.

Defendant next contends that the trial court erred in enhancing defendant’s sentence on the basis of perjury perceived by the judge to have been committed by defendant during the trial. Upon imposing sentence on defendant, the trial court discussed some of the factors which it had taken into consideration:

“I believe that the Defendant did not tell the truth when he was on the stand. I believe that he has a disregard for life by not taking into consideration the reckless homicide; but I do recall on the stand that Mr. Surrels [sic] — saying he did not even know what speed that he was going in that car; but he was trying to get away from that squad car.
Considering the weapons that were used, a sawed-off shotgun, and a sawed-off automatic rifle, a rifle that can hold — I don’t know exactly how many, but it can hold a lot of ammunition. ***
The other weapon involved here was a shotgun. One of the most vicious types of small arms that anyone can be up against at close range was used. This is a weapon — there was no useful purpose in this case.
The Defendant has had behavior difficulties in high school. The PSI indicates that. The Defendant was constantly getting into trouble.
And those Judges, in the past — each and every time thoughft] that he should be incarcerated for a period of time, usually six months.”

Initially, we note that defendant failed to object to the trial court’s consideration of defendant’s perceived perjury, and did not raise it as an issue in his motion for a new trial. Absent evidence that defendant was prejudiced by an alleged error to which no objection was made, the general rule followed by this court is that defendant has waived the right to assert the issue on appeal. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091.) Upon considering the numerous factors articulated by the trial court as having entered into its sentencing decision, we do not find that the trial court’s consideration of perceived perjury on the part of defendant prejudiced defendant in any way. Therefore, we find no reason for departing from the general rule that issues not properly preserved for review are waived.

Lastly, defendant contends that the trial court erred in imposing a general sentence where there has been a conviction on two counts. In response, the State argues that defendant waived this issue on appeal by his failure to object at the sentencing hearing or to raise the issue in his motion for a new trial. People v. Cartalino (1982), 111 Ill. App. 3d 578, 590, 444 N.E.2d 662.

In accord with our previous findings in this opinion regarding waiver, we concur with the State’s position in principle. However, in light of our decision that the conviction for armed violence must be vacated as well as the absence from the record of any indication that the trial court intended the 20-year sentence to encompass concurrent 20-year terms for armed robbery and armed violence, we conclude that the cause must be remanded for new sentencing. See People v. Blake-ney (1978), 59 Ill. App. 3d 119, 125, 375 N.E.2d 1309.

Finally, the State requests that pursuant to section 8 of “An Act concerning fees and salaries ***” (Ill. Rev. Stat. 1981, ch. 53, par. 8), section 110 — 7(h) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(h)) and section 13 of division XIV of the Criminal Code of 1874 (Ill. Rev. Stat. 1981, ch. 38, par. 180 — 3), this court grant costs to the State and incorporate same as part of its judgment in the amount of $50 for defending the appeal and an additional $25 for oral argument.

In our original opinion authored by Justice Wilson, now deceased, we granted the State’s request for an appeal fee of $50 and denied its request for an additional $25 for oral argument. Oral argument was in fact heard in the instant appeal. However, our denial was predicated on an interpretation that the per diem provisions applied only to the actual trial in the circuit court, and not to the oral argument on appeal. The State has filed a petition for rehearing contending that this court incorrectly construed the term “trial” in the relevant portions of the statute which reads:

“State’s attorneys shall be entitled to the following fees, ***:
* * *
For each day actually employed in the trial of a case, $25; ***.” (Ill. Rev. Stat. 1983, ch. 53, par. 8).

We agree and have therefore granted rehearing.

In People v. Nicholls (1978), 71 Ill. 2d 166, 179, 374 N.E.2d 194, 199, the Illinois Supreme Court expressly addressed this very issue and held:

“We believe that the per diem allowance, not being limited to the circuit court proceedings, may be reasonably construed as also applying to oral argument in the appellate court.”

Accordingly, the judgment entered by the circuit court of Cook County for armed robbery is affirmed; the judgment for armed violence is vacated; and the cause is remanded for new sentencing. Further, we grant the State’s request that defendant pay a fee of $75 to the State for defense of this appeal.

Affirmed in part; vacated in part; remanded for sentencing; fee allowed.

LORENZ, J., concurs.

       Justice Wilson, who authored the original opinion, is now deceased.

      “Mr. Davis [defense attorney] said his client got up on the stand and he admitted to stealing a car. He called it joyriding and as he explained to you in so much detail that the conviction was for possession of a stolen motor vehicle, which could mean joyriding. Well, ladies and gentlemen, I submit to you it could also be running a chop shop — .”

      “The defendant is not charged with possession of a stolen motor vehicle so he can get up there and admit all he wants to it. You cannot convict him of it because it’s not before you. He can get up there and admit to anything.”


author: PRESIDING JUSTICE LINN

text:
    JOSEPH A. ROSIN, Plaintiff-Appellant, v. FIRST BANK OF OAK PARK, Trustee, et al., Defendants-Appellees.
    First District (4th Division)
    No. 83—1898
    Opinion filed July 5, 1984.
    George B. Collins and Sandra Hertzberg, both of Collins & Amos, of Chicago, for appellant.
    Reuben & Proctor, of Chicago (Don H. Reuben, Shane H. Anderson, and William J. Campbell, Jr., of counsel), for appellees Sheldon F. Good & Co. and Real Estate Auctions, Inc.

      Jack D. Jester, Kevin M. Flynn, and Michael T. Trueco, all of Coffield, Ungaretti, Harris & Slavin, of Chicago, for other appellees.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Joseph A. Rosin, brought suit to specifically enforce a contract for the sale of land bought at auction. At trial, at the close of plaintiff’s case, defendants’ motions for judgment (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110) were granted on the ground that plaintiff had not presented enough evidence to make out a prima facie case on a contract.

On appeal, plaintiff claims that (1) he presented sufficient evidence to establish a prima facie case of the existence of a contract arising out of an auction of real estate, and (2) the trial court erred in not weighing the evidence before ruling on defendants’ motions for judgment at the close of plaintiff’s case.

We affirm the decision of the trial court.

Facts

Continental Bank was the holder of a first mortgage lien on a 6.5-acre commercial site in Libertyville, Illinois. After the loan went into default and the mortgagor subsequently died, the mortgage indebtedness to Continental exceeded $700,000.

In April 1983, Continental and the representative of the estate of the mortgagor agreed to allow Real Estate Auctions, Inc., to offer the property for sale at public auction to satisfy the mortgage indebtedness. Accordingly, while legal title to the property remained with First Bank of Oak Park under a land trust, Continental’s nominee took an assignment of the beneficial interest in the property in exchange for a release of the mortgagor’s estate from liability on the mortgage loan. The agreement documenting the release and conveyance reflected a $595,000 “current appraised value” for the property and an outstanding indebtedness of $834,591.80 owed to Continental.

Real Estate Auctions proceeded to arrange for the sale and to prepare and distribute an advertising brochure that announced the sale, described the various parcels to be sold at auction and the financing available, and set forth the terms of the sale as follows:

“2. The final high bid on *** the 6.5 acres in Libertyville will be offered with reserve. These bids must be irrevocable for 24 hours and subject to seller’s acceptance. *** The seller on Li-bertyville reserves the right to reject the high bid by the payment of $1,500 to the high bidder who signs contract.
* * *
5. Announcements made by Auctioneer at time of sale will take precedence over printed matter. Conduct of auction and increments of bidding at the discretion of the Auctioneer.” (Emphasis in original.)

On April 23, 1983, the night of the auction, not only were copies of the advertising brochure available to bidders, but a “green sheet” listing all the parcels was provided for the use of bidders in keeping track of the bidding. The front of the “green sheet” described the auction procedure, noted that one-half of all the lots offered were to be sold without reserve, and concluded by stating that the remaining lots were offered for sale subject to the sellers’ acceptance or rejection within 24 hours after the close of the auction.

Between 500 and 700 people attended the auction, among whom were Joseph A. Rosin, owner of the parcel of land adjacent to the Li-bertyville property up for sale, and his friend, Irving Drobny, who was present for the specific purpose of bidding on Rosin’s behalf. The Li-bertyville property was called for auction by Bruce Sayre, the auctioneer, at approximately 10 p.m. Although the auction was recorded on tape, the beginning of Sayre’s call of the Libertyville property occurred while the tape was being changed. However, various plaintiff’s witnesses testified that Sayre, after describing the property, the available financing, and the general terms of sale, went on to announce the “Dutch” auction method to be used for the Libertyville property.

According to the witnesses, Sayre also said that the owner had (1) a right to reject the high bid within 24 hours or (2) the right to “buy back” (a) the property or (b) the contract within the same time by the tender of a check for $1,500. The recording resumed with the “Dutch” auction itself. Sayre started the bidding at $800,000, and then, as no bids were forthcoming, lowered the requested amount by $50,000 reductions until, when he called for $500,000, Drobny bid $300,000. When no other bids were made, Sayre knocked down the parcel to Drobny, calling out, “Sold, subject to seller’s acceptance.” Drobny was then escorted by an employee of the auctioneer to a cashier, where he signed a sales contract as agent “on behalf of an undisclosed principal” and deposited the required $15,000 earnest money with the auction company.

Although representatives of Continental Bank present at the auction maintained that an officer of the bank told Sayre that evening that the bid was rejected, Sayre testified that they did not reject the bid until the next day, April 27. By 5 p.m. on the afternoon of the 27th, Continental gave Sayre the $1,500 check representing the rejection fee, and at 7:47 EST (6:47 CST), Sayre sent a mailgram to Drobny advising him that the $300,000 bid for the Libertyville property had been rejected.

Drobny informed Sayre by letter on April 29 that because the method of rejection did not comply with the announced requirements, the conditional acceptance of his bid was not binding and effective, and the sale must be consummated immediately. Drobny enclosed the next required payment of $15,000, but when he and Rosin went to Continental Bank to apply for a mortgage later that day, they were turned away. Within a week Rosin’s two checks were returned to him along with the $1,500 rejection fee. On May 4, Rosin filed an action for specific performance.

At trial, at the conclusion of the plaintiff’s evidence narrated above, all defendants moved for judgment pursuant to section 2 — 1110 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1110.) The trial judge, stating that no contract capable of specific performance had been formed because the offer to purchase had never been accepted, granted defendants’ motions and ruled that Rosin had failed to establish a prima facie case of the existence of a contract. From the entry of the judgment order granting defendants’ motions, Rosin now appeals.

Opinion

I

Section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110) provides as follows:

“In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived.”

In an effort to resolve conflicting appellate court opinions concerning the proper procedure to be followed by the court in ruling on a section 2 — 1110 motion (former section 64(3)), the supreme court, in Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43, stated that the procedure necessitates two steps: first, a determination whether or not the plaintiff has made out a prima facie case by presenting some evidence on every element essential to his cause of action; and second, if a prima facie case has been made out, a weighing of the plaintiff’s evidence and a subsequent review to see if any evidence necessary to the prima facie case has been negated. Judgment in defendant’s favor is to be entered if there is insufficient evidence to establish a prima facie case following either step. On appeal, the decision of the trial court should not be reversed unless it is contrary to the manifest weight of the evidence. Getzoff v. Paris (1979), 77 Ill. App. 3d 401, 396 N.E.2d 260.

In the instant case, the trial court determined that Rosin had not presented some evidence on every element essential to a prima facie case in contract. Specifically, the court found no evidence of an acceptance of Rosin’s offer by the seller, and there can be no contract without an offer and an acceptance. (Milanko v. Jensen (1949), 404 Ill. 261, 88 N.E.2d 857.) We agree with the decision of the trial court.

Rosin’s claim to specific performance appears to rest solely on his belief that unless he received a written rejection, payment of the $1,500 rejection fee, and the return of his earnest money deposit, all within 24 hours of the close of the auction, the fall of the hammer following his bid constituted a conditional acceptance that matured into an irrevocable acceptance 24 hours later. However, neither basic contract law nor the application of the rules of auction sales to the facts in the present case support his position.

“The mutual assent necessary to the formation of a bilateral contract *** requires the communicated expression of a promise to purchase and an acceptance in the form of a promise to sell.” (Rothenbue-cher v. Tockstein (1980), 88 Ill. App. 3d 968, 969-70, 411 N.E.2d 92, 94.) To be valid, an acceptance must be objectively manifested, for otherwise no meeting of the minds would occur. (88 Ill. App. 3d 968, 970, 411 N.E.2d 92, 94.) Although an acceptance may be implied under certain specific circumstances, the general rule is that silence cannot be relied upon to establish an acceptance of an offer to enter into a contract. (Roberts v. Buske (1973), 12 Ill. App. 3d 630, 298 N.E.2d 795; 1 Corbin on Contracts sec. 72 (1963).) We agree with the trial court that Rosin has failed to present evidence that Continental ever accepted his bid.

In addition to general principles of contract formation, several additional factors unique to auction sales must be considered. “[A] bid at an auction constitutes an offer to buy, the fall of the hammer or any other customary means constitutes the acceptance, and a contract is then made.” (Well v. Schoeneweis (1981), 101 Ill. App. 3d 254, 258, 427 N.E.2d 1343, 1346.) “ ‘Unless a contrary intention is manifested, bids at an auction embody terms made known by advertisement, posting or other publication of which bidders are or should be aware, as modified by any announcement made by the auctioneer when the goods are put up.’ ” 101 Ill. App. 3d 254, 258, 427 N.E.2d 1343, 1346, quoting Restatement (Second) of Contracts sec. 28(2) (1981).

In the present case, in addition to the brochure provisions quoted earlier, the “green sheet” handed out on the night of the auction stated, “The remaining lots [which arguably included the Libertyville property] will be offered for sale subject to the Sellers [sic] acceptance or rejection within 24 hours after the close of the Auction.”

In an auction with reserve, the auctioneer, as agent of the seller, invites bids (offers) with the understanding that no bargain exists until the seller has made a further manifestation of assent; the auctioneer may reject all bids and withdraw the goods from sale until he announces completion of the sale. (Restatement (Second) of Contracts sec. 28, comment b; sec. 26 (1981).) Where, as here, the seller has reserved the right to refuse to accept any bid made, a binding sale is not consummated until the seller accepts the bid. When the seller reserves the right to reject any and all bids received, he may exercise this right even after the auctioneer has accepted a bid. 7 Am. Jur. 2d Auctions and Auctioneers sec. 16 (1980).

In the present case, the original terms of the contract, as contained in the printed material, included, inter alia, (1) the seller’s reservation of the right to accept or reject any bid within 24 hours of the close of the auction, and (2) the seller’s agreement to pay $1,500 for the right to reject the high bid within the same time period. According to the printed material, while the rejection itself had to be made within the 24 hours, nothing indicated that the same time limit governed either the payment of compensation for the exercise of the right of rejection or the return of the earnest money. Any modification of these terms would necessarily be contained in the oral statements made by the auctioneer before, during, and at the conclusion of the sale of the Libertyville property.

None of the plaintiff’s witnesses could remember the auctioneer’s exact words as he began the call on the Libertyville property. Most of them testified that prior to the explanation of the “Dutch” auction, the introductory remarks included statements about the seller’s reservation of a right to reject or “buy back” the bid, and a 24-hour period. However, they all agreed, and the tape recording confirmed, that the last announcement, made by the auctioneer as the hammer fell, was “Sold, subject to seller’s acceptance.”

Applying the law as explained above to the facts of the instant case, we see clearly that no contract capable of specific perform-anee ever came into existence. The last statement made by the auctioneer modified the printed terms to the extent that no sale would be final until the seller accepted the prospective purchaser’s bid. As stated in Well v. Schoeneweis (1981), 101 Ill. App. 3d 254, 258, 427 N.E.2d 1343, 1346, acceptance of a bid at an auction is manifested by the fall of the hammer or any other customary means. In an auction in which the seller has reserved the right to reject any and all bids, the “customary means” of acceptance clearly is not the fall of the hammer, but rather is some other objective manifestation of acceptance. Continental never manifested any intent to accept Rosin’s bid, no sale was consummated, and no contract capable of specific performance ever came into existence.

Rosin cites the case of Well v. Schoeneweis (1981), 101 Ill. App. 3d 254, 427 N.E.2d 1343, as authority for his position that even in an auction subject to seller’s approval, the contract is complete at the fall of the hammer. While we agree that the language of the holding appears to support Rosin’s position, the facts of the case cast a very different light on the holding.

Unlike the instant case, in which the seller never signed the purchase agreement, in Well, following the fall of the hammer, the auctioneer, as agent for the sellers, immediately signed the purchase agreement and accepted the down payment. Because the attempt to alter the terms of the contract occurred only after the sellers had objectively manifested their intent to accept the purchaser’s bid, the time reserved for the sellers to exercise their right of approval already had passed and was therefore not a factor in the court’s decision. Consequently, we do not agree that Well supports Rosin’s position, and in light of our analysis explained above, we find that the trial court correctly held that no contract had been formed.

II

Even if we accept, arguendo, Rosin’s claim that his right to specific performance did not depend on Continental’s acceptance of the offer by some additional objective manifestation but rather on the bank’s failure to timely reject the offer, we find that Rosin’s bid was, in fact, timely rejected.

By virtue of his contract, the auctioneer is the authorized agent of the seller. (Well v. Schoeneweis (1981), 101 Ill. App. 3d 254, 427 N.E.2d 1343.) At the moment the property is struck off, however, “the auctioneer is also made the agent of the purchaser, to the extent of binding the parties by his memorandum of sale *** by the act of the purchaser in giving him his bid and receiving from him, without objection, the announcement that the property is knocked off to him as purchaser.” 7A C.J.S. Auctions & Auctioneers sec. 5 (1980); Yourt v. Hopkins (1860), 24 Ill. 326.

The nature of the dual agency of the auctioneer is very limited, however. While his authority as agent for the seller begins before the auction and may continue after completion of the sale, his authority as agent of the purchaser begins with his acceptance of the bid and ends with the completion of the memorandum of sale sufficient to take the transaction out of the operation of the Statute of Frauds. (7 Am. Jur. 2d Auctions & Auctioneers sec. 55 (1980).) As agent for the purchaser, the auctioneer’s authority must be exercised contemporaneously with the sale. (Doty v. Wilder (1854), 15 Ill. 407.) However, as long as he serves in some capacity on behalf of both parties pending resolution of any questions concerning the finality of the sale, in regard to that capacity he is treated as agent for both the seller and the buyer. Ellison v. Kerr (1877), 86 Ill. 427.

The very restricted nature of the dual agency easily fits within the requirements of an auction sale without reserve; in such a situation, the seller has promised to accept the high bid, whatever it is, and the sale is completed on the spot. (Diefenbach v. Gorney (1968), 93 Ill. App. 2d 51, 234 N.E.2d 813.) The auctioneer’s agency on behalf of the purchaser lasts only as long as it takes to complete and execute the memorandum of sale.

In a sale with reserve, however, the operation of the dual agency is not so easily limited. An agency created to effect a particular purpose terminates only when that purpose is accomplished, and the authority of an agent to complete a business transaction requiring a series of acts is not exhausted by the performance of only one of those acts. (2A C.J.S. Agency sec. 109 (1980).) Therefore, in an auction with reserve, the authority of the auctioneer to act as the agent of the purchaser necessarily must extend to cover the period between the making of the high bid and the final disposition of the matter, either the end of the period reserved by the seller for a decision or the decision itself.

Our review of the record reveals that at all times prior to Rosin’s receipt on April 29 of the written notice of rejection, each party accepted Sayre, the auctioneer, as his agent. One person may act as agent for both parties to a transaction if he does so with their full knowledge and consent. (Manda v. Branham (1977), 50 Ill. App 3d 91, 365 N.E.2d 216.) Drobny and Rosin turned over the $15,000 earnest money to the auctioneer, to be held by the auction firm pending Continental’s decision on the bid. All communications between the purchaser and seller during the days after the auction were made through Sayre. Sayre informed Drobny on the day after the auction that he was attempting to locate Vice-President Wood, the bank’s representative, in an effort to persuade her to accept Rosin’s offer, clearly an act by Sayre that Rosin accepted as being undertaken on his behalf. In turn, Sayre tried to convince Drobny to increase his bid to more nearly match Continental’s desired sale price; and when he would not, Sayre, as agent for the bank, accepted Rosin’s communication that the bank’s rejection had been ineffectual.

After our review of the 24 hours following the close of the auction, we conclude that through Sayre’s actions, in accordance with his dual agency, an effective rejection took place. At 4:30 p.m. on April 27, Continental delivered to Sayre the $1,500 rejection fee, thus confirming the bank’s oral notice of rejection Sayre had received earlier. In his position as dual agent, Sayre was authorized to take any actions necessary to effectuate a final disposition of the transaction. (See 2A C.J.S. Agency sec. 109 (1980).) Similarly, in his position as dual agent, Sayre’s receipt of Continental’s notice of the rejection constituted notice to and receipt by his principal, Rosin/Drobny. As long as Sayre was acting as their agent by receiving their bid, holding the earnest money, delivering communications to the bank, and arguing on their behalf, they clothed him with authority to accept the bank’s notice of either acceptance or rejection. (See Altrocchi v. Hammond (1958), 17 Ill. App. 2d 192, 149 N.E.2d 646.) We find, therefore, that by delivering notice and the rejection fee to Sayre, the bank effectively rejected Rosin’s bid within the prescribed time period.

In none of the printed material nor in the auctioneer’s remarks was any mention made of a 24-hour limit on the return of the earnest money as a condition of an effective rejection. We therefore find that its return was not a condition precedent to an effective rejection.

As a result of our analysis of the law as applied to the facts of the present case, we find that no contract capable of specific performance ever came into being. The plaintiff having failed to make out a prima facie case, the trial court was not required to weigh the evidence, and correctly granted defendants’ motions for judgment at the close of plaintiff’s case. Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1110; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.

Judgment affirmed.

JOHNSON and JIGANTI, JJ., concur.