author: JUSTICE ALLOY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY M. PARROTT, Defendant-Appellant.
    Third District
    No. 81 — 658
    Opinion filed July 30, 1982.

      Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa- (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from the trial court’s decision to deny the defendant-appellant’s petition for conditional release from the custody of the Department of Corrections. In 1975, the trial court committed the defendant to the Department of Corrections under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1975, ch. 38, par. 105 — 1 et seq.). In 1977, after the Illinois Supreme Court ruled that a person may not be committed under this act absent proof beyond a reasonable doubt (People v. Pembrock (1976), 62 Ill. 2d 317, 342 N.E.2d 28), the State filed a second petition to commit the defendant. In the hearing on this petition, the parties stipulated to admission of the evidence presented in the 1975 hearing. Neither party offered any new evidence.

The defendant filed several applications showing recovery in 1980. (Ill. Rev. Stat. 1979, ch. 38, par. 105 — 9.) In the hearing on this matter in October 1981, the doctor who had been treating the defendant at the Menard Correctional Center’s mental health unit testified for the State and the defendant testified in his own behalf. At the conclusion of the hearing, the trial court found that the defendant no longer appeared sexually dangerous, but it was impossible to determine with certainty under conditions of institutional care that he has fully recovered. The trial court, however, refused to conditionally release the defendant. The defendant now appeals his 1977 commitment and the denial of the petition for recovery.

The first issue is whether the trial court properly determined the defendant to be a sexually dangerous person in 1977. The defendant argues the trial court improperly used stipulated testimony and reports from his 1975 hearing in his second hearing. Since there was no new evidence at the 1977 hearing, the defendant argues the trial court’s decision amounts to an improper retroactive determination that he is a sexually dangerous person. The defendant, however, argues this issue for the first time in this appeal. The State, therefore, argues that he waived this issue and, in any event, the court correctly determined the defendant was — in 1977 — a sexually dangerous person.

We find that the defendant waived this issue for review. It is true, of course, that a retroactive determination of sexual dangerousness is impermissible. (People v. Whitney (1975), 33 Ill. App. 3d 729, 338 N.E.2d 233.) A court may, however, use evidence admitted pursuant to stipulation to reach a proper determination. (People v. Hodges (1976), 36 Ill. App. 3d 422, 343 N.E.2d 565 (defendant stipulated to qualifications of psychiatric report).) Once the defendant stipulated to admission of the 1975 material as evidence in his 1977 rehearing, the State did not have to present any additional evidence. In effect, the State and the defendant implicitly agreed that his mental condition had not changed in the prior two years. At this point, the trial court could properly determine beyond a reasonable doubt that the defendant was sexually dangerous in 1977. People v. Abney (1967), 90 Ill. App. 2d 235, 232 N.E.2d 784, does not require a contrary result. In Abney, the appellate court entertained an untimely appeal from a trial court determination that the defendant was a sexually dangerous person. The widespread disregard for statutory requirements — including denial of a jury trial, the want of even stipulated psychiatric evidence in the record and the 21!z year delay in acting on a petition for recovery — necessitated such unusual action. In the case at bar, the trial court merely found the defendant sexually dangerous based on stipulated psychiatric evidence. Although this is not a preferred method of trying these cases, it is not reversible error either. (See People v. Hodges (1976), 36 Ill. App. 3d 422, 343 N.E.2d 565.) Abney is distinguishable from the instant case and does not require this court to review the trial court’s original determinations.

The second issue is whether the trial court erred when it refused to conditionally release the defendant. At the conclusion of the hearing on the defendant’s petition for recovery, the trial court found that the defendant appeared no longer sexually dangerous, but that it would be impossible to be certain of his recovery under conditions of institutional care. The court also found that the mental health unit at Menard has done all it can to treat the defendant. The court refused to conditionally release the defendant, however, because it was unsure of the defendant’s status in Ohio and because there was insufficient evidence upon which to formulate a plan for his supervision and treatment.

At trial, some evidence indicated a detainer for the defendant existed in Ohio. Correspondence from the Court of Common Pleas, Cuy-ahoga County, Ohio, to the defendant indicates that the defendant’s probation has been terminated. Accordingly, the State now abandons this argument.

Although one court has held that a defendant who appears no longer sexually dangerous must be released (People v. Richardson (1975), 32 Ill. App. 3d 621, 335 N.E.2d 619), this court has rejected that approach. In People v. Whitney (1975), 33 Ill. App. 3d 729, 338 N.E.2d 233, this court ruled that a trial court must release a petitioner who appears to be no longer sexually dangerous only if adequate facilities are available to provide such supervision as it may find necessary to protect the public.

Whitney did not involve, however, the issue of which party is responsible for formulating a plan for the defendant’s treatment, conditional release and supervision once he has demonstrated that he no longer appears dangerous. In the case at bar, the defendant wanted the trial court to order the Department of Corrections to formulate a plan for his conditional release. The State argues the statute may not be construed to require the Department of Corrections to formulate a plan for conditional release because — as Whitney noted — there may not always be adequate facilities to protect the public. Therefore, concludes the State, the defendant must present evidence to support his conditional release. Neither party to this appeal cites authority directly on point.

A defendant may be released from commitment if he can prove, by a preponderance of the evidence, that he is no longer sexually dangerous. (People v. Sweeney (1969), 114 Ill. App. 2d 81, 251 N.E.2d 897.) It is logical, therefore, to require the defendant also to show that he can be conditionally released without endangering the public. The purpose of the Sexually Dangerous Persons Act is not only to protect that public but to treat the defendant for his mental problems. The defendant here correctly points out that the Department has superior resources and expertise to deal with sexually dangerous persons. Moreover, as a practical matter, the only experts the defendant has available to him are those that have been treating him within the correctional institution. These experts, of course, are most knowledgeable about a defendant’s problems and progress towards recovery. Therefore, once a trial court has determined that a defendant is eligible for conditional release, it may require the Department to cooperate with the defendant in good faith to formulate a plan for his conditional release, treatment and supervision. This does not mean the Department must release the defendant even if there are no facilities to adequately protect the public. On the contrary, if the Department-after a good faith effort to develop a plan with the cooperation of the defendant — concludes that the public cannot be adequately protected, it may present its findings and argument to the trial court. At that point, the defendant will have the burden of proving that it is possible to protect the public during his proposed conditional release. This procedure accommodates the twin goals of protection of society and treatment of the defendant.

In conclusion, this cause is remanded to the trial court to permit the parties to develop a plan for the defendant’s conditional release. Towards this end, the trial court may order the Department of Corrections to cooperate with the defendant in good faith. If the Department concludes such a plan is not feasible, the burden remains on the defendant to prove that his proposed conditional release would adequately protect the public.

Affirmed and remanded for proceedings consistent with this opinion.

STOUDER and SCOTT, JJ. concur.


source: Caselaw Access Project

author: JUSTICE SCOTT

license: Public Domain

text:
    HARTLEY D. TUCKER et al., Plaintiffs-Appellees, v. CLARENCE BUNGER, Commissioner of Highways, Defendant-Appellant.
    Third District
    No. 82 — 1
    Opinion filed July 30, 1982.
    Richard D. McCoy, of Groen, Groen & Carmichael, of Pekin, for appellant.
    Gery R. Gasick, of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

The commissioner of highways of Timber Township in Peoria County, Clarence Bunger, planned to widen the Martin-Webber Road to a width, including the paved surface and ditches, of 66 feet. Six township residents who own land adjoining the Martin-Webber Road objected to the commissioner’s proposed actions and filed a suit in the circuit court to enjoin the commissioner from widening the road absent statutory condemnation proceedings. Following a hearing on the complaint, the Peoria County court determined that condemnation proceedings would be required before the township could widen the road beyond its existing use, and accordingly the commissioner was ordered not to proceed. An appeal of that order has been perfected by the commissioner.

All parties concede that the road in question, as it is currently used and defined by existing fences that parallel the road, is narrower than the proposed width of 66 feet. The commissioner, however, relying on the rules that govern the statutory dedication of roadways to the public use, urges that the Martin-Webber Road was originally dedicated to include 66 feet of right-of-way, that such dedication was in compliance with the statute, and that non-use of the full 66 foot width during the intervening years does not negate the township’s right hereto.

To understand the township position, it is necessary to review a bit of Illinois history. Prior to 1849, counties in the State were governed by a commissioner’s court, the legislature having not previously authorized the township form of local government. Among the powers vested in the county commissioners was the power to open new roads. (Ill. Rev. Stat. 1845, ch. XCIII, sec. 17.) Such roads were required to be surveyed, and plats of those surveys were to be recorded with the county recorder. (Ill. Rev.' Stat. 1845, ch. XCIII, sec. 33.) Then, by-action of the legislature on February 12, 1849, which took effect April 16, 1849, voters of each county in the State were given the authority to elect the township form of .organization by referendum in their respective counties. In counties so electing, three commissioners of highways were to be elected in each township at the annual township meeting. (1849 Ill. Laws 190, 192.) In addition, the three commissioners of highways were given authority to lay out new roads (1849 Ill. Laws 190, 212), provided that the road was surveyed and a copy of the survey was recorded in the office of the town clerk. No requirement existed for the township highway commissioners, as it did for county commissioners, to record the plat of survey of all new roads to be recorded with the county recorder. Ill. Rev. Stat. 1874, ch. 109, par. 9.

According to the appellant township, the Martin-Webber Road was dedicated according to statutory criteria in 1851. At that time, the law provided that:

“Whenever the commissioners of highways shall lay out * * * any road, either upon application to them or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same.” (1849 Ill. Laws 190, 218.)

It was further provided that:

“All public roads to be laid out by the commissioners of highways of any town shall not be less than four rods [66 feet] wide * * *.” (1849 Ill. Laws 190, 221.)

Finally, the town clerk was vested with the responsibility of keeping “custody of all the record books, and papers of the town * * *.” (1849 Ill. Laws 190, 195.) At the trial of this cause, it was determined that the town clerk of Timber Township had in his possession no record of an order of the commissioners of highways or of a survey of the Martin-Webber Road. Such records had been either lost or destroyed.

The current commissioner of highways, the defendant herein, sought to rely on certain secondary records which were maintained by the superintendent of highways of Peoria County. From the testimony of Florence Wray, a former but long-time employee of the superintendent’s office, it was learned that starting around 1931 or 1932 and continuing into the 1940’s, she transcribed into typewritten form the existing records for each township in Peoria. Those records, subsequently maintained in the superintendent’s office, contained a typed transcription that purports to be the commissioner’s order of January 29, 1851, establishing the Martin-Webber Road and reciting a metes and bounds description of the road’s path. A sketch of the road also appears on the transcription, but it was not drawn by Mrs. Wray. Another employee of the superintendent’s office, Mr. Wayne Sayer, testified that the sketch “looked like” one he had drawn, in 1948 or 1949, without benefit of the original township records.

In concluding the statement of its position, the township contends that a highway right-of-way 66 feet in width was dedicated in compliance with the applicable statutes, and therefore, even though the full 66 foot width has not previously been utilized, the public’s right thereto is not barred. The township relies on the case of Department of Transportation v. Thomas (1978), 59 Ill. App. 3d 684, 375 N.E.2d 834.

The township residents who instituted this action urge that to sustain the township’s position would defeat the purposes of our recording laws. They correctly note that current recording laws require recording with the county recorder of all surveys that describe dedications of land to the public use. Under these facts, where the survey was not recorded with the county recorder, they contend that there was no proper record notice of the dedicated width of the Martin-Webber Road. The property owners conclude the statement of their position by arguing that absent proper recording, the dedication in question must be a common-law dedication where the extent of the dedicated right-of-way is determined by actual use. They rely on the authority of Pilgrim v. Chamberlain (1968), 91 Ill. App. 2d 233, 234 N.E.2d 75.

Our analysis of issues raised by this appeal required a review of the statutes in effect in Illinois in 1851. And that review compels us to agree with the township that in that year, the only recording requirement in effect to perfect the dedication of a township road was satisfied with a filing of the survey with the town clerk. Thereupon, it was the duty of the town clerk to maintain the survey as part of the records of the township so as to afford persons an opportunity for ascertaining the status of title to dedicated property. We cannot agree with the township that this opportunity was afforded under the particular circumstances before us.

Sometime between the early 1930’s and the present, the township records were lost, misplaced or destroyed. There is no testimony in the transcript of the proceedings below to indicate the whereabouts of these lost records, but the present town clerk indicates that he has never seen the original 1851 records pertaining to the Martin-Webber Road. Yet, as a general rule, the loss or destruction of a public land record does not render ineffectual its force and operation as constructive notice. (Shannon v. Hall (1874), 72 Ill. 354.) The purpose of the recording laws is to protect the property rights of the grantee, in this case the township, and such rights are not extinguished or lost by the destruction of the record book. {Shannon v. Hall.) Though the case of the unwary purchaser who is deemed to have constructive notice of missing records “has much equity in it,” that equity cannot be held superior to that of the grantee who duly recorded his interest in real property and relied on the protection of the recording laws. Shannon v. Hall.

To this general rule, however, there appears at least one exception. That is, the property rights of a grantee whose recorded instrument of title is lost or destroyed may be defeated where the loss or destruction is attributable to that grantee. (52 Am. Jur. 2d Lost and Destroyed Instruments sec. 5 (1970).) The facts of the instant case would appear to fit this exception to the general rule. Here, the grantee of the dedicated lands, Timber Township, was charged with the legal responsibility for maintaining the public record of the dedication. The township inexplicably failed in that responsibility, and further failed to maintain in its files any secondary or reconstructed record so as to provide constructive notice to the unwary.

While the equities may favor the property rights of one who relies on the recording laws, only to have such records lost or destroyed by events beyond his control, a different balance of equities results when such lost or destroyed records are within the custody or control of the party seeking to rely on their legal effect. Where, as here, the township was able to reconstruct the township records from secondary sources for the benefit of this litigation, it imposes no undue burden to require the township to maintain the same reconstructed records in the proper repository, the office of the town clerk, for the benefit of title examiners. The failure to maintain such records in the instant case was undoubtedly a good faith error, but a rule requiring such records to be maintained will insure that in future cases townships and other public record repositories will not seek to benefit from an intentional neglect of duty.

Accordingly, we hold that the township may not rely on the reconstructed records proffered in the circuit court, and thus its assertion that a statutory dedication was completed must fail. Having concluded as did the court below that the dedication in question is governed by the common law, we affirm the trial court’s order requiring condemnation proceedings before the Martin-Webber Road is expanded beyond the width of its existing use. Finally, we determine that the ap-pellee’s request for attorney’s fees pursuant to section 9.8 of the Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 9.8), is not properly before us, said request having not been presented to or considered by the trial court. Crandall v. Country Mutual Insurance Co. (1980), 81 Ill. App. 3d 140, 400 N.E.2d 1100.

Affirmed.

BARRY, R J., and HEIPLE, J., concur.


author: JUSTICE HEIPLE

text:
      In re REPORT OF THE GRAND JURY OF MARSHALL COUNTY.-(MARSHALL COUNTY GRAND JURY ex rel. EDWARD ZUKOSKY, Petitioner-Appellant, v. EDWARD E. HAUGENS, Judge, Respondent-Appellee.)
    Third District
    No. 82 — 29
    Opinion filed July 30, 1982.
    Edward Zukosky, State’s Attorney, of Wenona (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    Donald D. Knuckey, of Henry, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

On November 4, 1981, the Marshall County Grand Jury met in session. After conferring, they came before Circuit Judge Edward E. Haugens, the then presiding judge of Marshall County. The foreman wanted to file a report approved by a quorum of the grand jury. After reading it, Judge Haugens took the matter under advisement. On December 24, 1981, he issued an order which barred the filing of that report with the Marshall County Circuit Court Clerk. The Marshall County State’s Attorney, on behalf of the grand jury, then filed a notice of appeal from that order.

The appellee, Judge Haugens, filed a motion to dismiss the appeal. He maintains the order appealed from is an administrative order which is not final. Thus, Judge Haugens concludes we are without subject matter jurisdiction to entertain this appeal. Appellant filed a response. This motion was taken with the case.

Two questions are presented, both procedural. The first is whether we have an actual case or controversy that may be the subject of an appeal. The second is conditional. If we have a case for resolution, did the report of the grand jury qualify as an official document for filing with the circuit clerk?

The facts in this cause stem from the nature of the grand jury’s report. We have a copy of it before us. The report recounts two cultural maladies confronting many counties today: namely, drug and alcohol abuse. In sum, the report recommends:

1. The Marshall County School Board institute drug and alcohol education programs with local police and the State’s Attorney’s Office.
2. The Marshall County Board permit the sheriff’s office to join the “MEG Unit,” a multi-county law enforcement cadre.
3. Parents must be reminded to discipline their children.
4. Drug and alcohol use should be deemphasized by the media.
5. The sheriff should get a pay raise and more deputies hired to fight local crime.

Apparently, the grand jury sought to file this general, social document as a blueprint for what it believed were effective methods of alleviating some of the county’s ills. The State’s Attorney, as petitioner on behalf of the grand jury, contends the grand jury had the authority to make such a report. Consequently, he concludes, the report should have been filed as a public record.

After reading the grand jury report, Judge Haugens determined it was not a true bill of indictment, a no-bill, or report on the conditions of the county jail. In other words, Judge Haugens concluded the report was not within the statutory duties of the grand jury. Therefore, he instructed the circuit court clerk not to permit the filing of such report.

Judge Haugens’ motion to dismiss is correct. The order forbidding the filing of the report was an administrative ruling. It did not involve the exercise of the court’s discretion on a case or controversy. In its present posture, this appeal presents no justiciable controversy. No real adversity exists between the parties. To challenge the nondiscretionary refusal to act of a circuit judge or other public official, an appropriate vehicle is for the petitioner to seek a writ of mandamus. Although an extraordinary remedy issued only in the sound discretion of the court, mandamus may issue to compel the performance of a nondiscretionary, ministerial duty or act. (Chicago Association of Commerce & Industry v. Regional Transportation Authority (1981), 86 Ill. 2d 179, 185.) Such procedure was not followed in this case. Since the order appealed from was administrative and not final, it is not appealable. It does not arise in the context of a case or controversy.

Thus, we rule that the present appeal is not properly before this court. We do not have a case or controversy that is the fit subject of an appeal. In view of the public interest in preserving the integrity and legitimacy of our circuit court records, however, we feel that the second procedural question should be addressed even though such comments constitute dictum. That question is whether the report of the grand jury qualifies as an official document for filing with the circuit clerk. We feel that it does not so qualify.

The grand jury, a creature of the common law, originated in England, possibly during the reign of King Henry II. For all practical purposes, England abolished the grand jury 50 years ago. (In Application of Texas Co. (E.D. Ill. 1939), 27 F. Supp. 847.) Many jurisdictions within the United States have done likewise. The grand jury, however, endures in Illinois subject to abolition by the Legislature at any time. (Ill. Const. 1970, art. I, sec. 7.) At common law the function of the grand jury was not only to investigate crimes, but also to act as buffer between the prosecutor and the accused so that citizens were protected from unsubstantiated accusations of the government or the personal disdain of the prosecutor. (United States v. Calandra (1974), 414 U.S. 338, 343, 38 L. Ed. 2d 561, 568-69, 94 S. Ct. 613, 617.) As part of this common law tradition a grand jury was permitted to issue specific reports. Also, it had some authority to issue presentments reflecting general social conditions. (Application of United Electrical Radio & Machine Workers of America (S.D.N.Y. 1953), 111 F. Supp. 858, 863 n.12.) Some States adopted this rule: others did not. The latter felt such reports should not be made public records since such reports might be considered libellous or jeopardize the secrecy of grand jury proceedings. Also, it was surmised that any person named in the report, although not indicted, might be subjected to what, in effect, was an official accusation of wrongdoing which he could not rebut. By issuing a general presentment with the grand jury’s imprimatur such a report could subject a person to rebuke and ridicule even though not officially charged with a crime. (In re Report of Grand Jury (1927), 152 Md. 616, 622-28, 137 A. 370, 372-74.) The specter of the grand jury’s power is thus fearsome and potentially devastating if such general reports are sanctioned.

It is this common law tradition, namely the grand jury’s authority to make general reports, which the Marshall County State’s Attorney • believes must be followed. If this is correct, he concludes, we would overrule Judge Haugens. We disagree with such a conclusion. The common law authority of the grand jury is of largely historical significance. The Illinois Constitution not only gives the General Assembly the right to abolish the grand jury but also to “further limit' its (the grand jury’s) use.” This provision supplants the common law and invests in the legislature the power to enact statutes limiting the common law duties a grand jury performed.

The functions of the grand jury in Illinois are based on statutes promulgated by the Illinois General Assembly. A grand jury may return a true bill of indictment charging a person with a crime or, alternatively, a no-bill. (Ill. Rev. Stat. 1981, ch. 38, pars. 112 — 4(d), 112— 4(e).) It may also report on the conditions of the county jail. (Ill. Rev. Stat. 1981, ch. 75, par. 26.) Only with respect to such statutory functions is a circuit court clerk required to file such reports of the grand jury. (Ill. Rev. Stat. 1981, ch. 38, par. 112 — 5(a).) True, the grand jury can make general reports such as the one the Marshall County Grand Jury sought to file. In fact, they can make any report they want. But no law exists which requires that every such report must be filed and made records of the circuit courts of this State.

A circuit judge, in conjunction with the circuit clerk, has inherent ministerial authority to control the circuit court’s recordkeeping. (See People ex rel. Bier v. Scholz (1979), 77 Ill. 2d 12, 19-20.) The-ministerial character of Judge Haugens’ order is further accentuated by the very nature of grand jury proceedings. A grand jury hearing is not adversarial, but is the initial step to determine whether a case or controversy exists. The grand jury conducts an ex parte investigation to ascertain whether criminal proceedings should be commenced. If it believes a case does exist, it returns an indictment and the matter is turned over to the court for trial to be prosecuted by the State’s Attorney. If it does not find sufficient facts upon which to conclude a crime has occurred, a bill of indictment is not returned. In such an instance, the grand jury returns a no-bill.

The grand jury is an autonomous body which is part of the apparatus of our judicial system. In theory, it is controlled by the judiciary by whom it is called into being. In practice, it is the handmaiden of the prosecutor who serves as its legal advisor. Its members, however, are under the supervisory authority of our circuit courts. (People v. Massarella (1978), 72 Ill. 2d 531, 539; People v. Sears (1971), 49 Ill. 2d 14, 27.) Its official functions are two: accusatory and investigatory. It has the authority to cause a person to answer criminal charges as well as inquisatorial powers to subpoena persons and documents in its investigation of crimes allegedly committed. Its power is great. In Blinois, each grand jury is established by the circuit court in the county where that court is located. The scope of the grand jury’s investigatory power is limited by that court’s geographic boundaries and subject matter jurisdiction. The problem this cause presents is whether the grand jury has authority to issue a general report which is unrelated to its statutory delegation of authority. The grand jury has no such authority.

As hereinbefore indicated, no statute authorizes a grand jury in this State to file a general report. Nor can we supply such under the ruse of statutory interpretation or otherwise. (Ill. Ann. Stat., 1970 Const., art. I, sec. 7, Constitutional Commentary, at 372-73, (Smith-Hurd 1971).) A grand jury does not have a license to file as circuit court records general reports of social ills.

For the reasons stated, we dismiss the appeal filed by the petitioner, the Marshall County State’s Attorney.

Appeal dismissed.

BARRY, E J., and STOUDER, J., concur.

      Grand jury reports are referred to as indictments or presentments. Both are specific accusations of criminal behavior. An indictment is an accusation, usually prepared by a prosecutor, which is endorsed by a grand jury when it returns a true bill. A presentment is an accusation initiated by the grand jury itself. In modern practice, presentment by a grand jury is rare.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FLETCHER SPEARMAN, Defendant-Appellant.
    Third District
    No. 82 — 46
    Opinion filed July 30, 1982.
    Robert Agostinelli and Verlin R. F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. Patrick Power, State’s Attorney, of Kankakee (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

An indictment filed in the circuit court of Kankakee County charged the defendant, Fletcher Spearman, with the offense of retail theft. He stood accused of taking three steaks, worth $14.13, from a Kankakee food store. Ordinarily, such conduct would have constituted a Class A misdemeanor (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 10(1)), but because the defendant was convicted of misdemeanor retail theft in November, 1980, the offense became a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 10(2)). The defendant originally pleaded not guilty, but he later withdrew that plea and pleaded guilty, which the circuit court accepted after admonishing the defendant according to Supreme Court Rule 402 (85 Ill. 2d R. 402). At the sentencing hearing the court imposed a term of five years' imprisonment under the extended term provision, section 5 — 5—3.2(b)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5— 3.2(b)(1)). In imposing extended term sentencing, the court referred to the defendant’s history of felony convictions: a November 1975 burglary conviction; a June 1977 attempted burglary conviction; and a December 1978 burglary conviction. The defendant appeals from the sentencing order and renews his objection first raised in his motion to withdraw his guilty plea that the court was without authority to order extended term sentencing for conduct which was not a felony but for the enhancement caused by a prior conviction. We agree with the defendant and, accordingly, vacate the sentencing order.

According to section 5 — 5—3.2(b)(1), extended term sentencing may be imposed “(w)hen a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and tried and arise out of different series of acts.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1).) The defendant argues that the language “any felony” must be narrowly construed to include only that conduct which is in its unenhanced state classified as a felony, thus excluding misdemeanor offenses that are somehow enhanced to a felony status. To justify this interpretation, the defendant offers the maxim of statutory construction that all doubts concerning penal statutes are to be resolved on the side of lenity and in favor of the accused. (People v. Robinson (1982), 89 Ill. 2d 469, 433 N.E.2d 674; People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558; People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.) According to the defendant’s thesis then, the circuit court erred in ordering extended term sentencing because his conduct was only a Class A misdemeanor that was enhanced to a Class 4 felony by section 16A — 10(2), which provides: “(a)fter a conviction of retail theft or theft, without regard to the full retail value thereof, a second or subsequent offense of retail theft, the full retail value of which does not exceed $150 is a Class 4 felony.” Ill. Rev. Stat. 1979, ch. 38, par. 16A-10(2).

In support of his argument, the defendant relies on the recent Illinois Supreme Court holding in People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558. There the defendant was convicted of a 1979 theft with a prior theft conviction, a 1978 felony theft, the existence of which enhanced the conduct from a Class A misdemeanor to a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e).) At the sentencing hearing, the court imposed an extended term of six years, finding that the defendant’s only previous felony conviction, the same offense that enhanced the offense to a felony, also served as the predicate felony to extend the defendant’s sentence under section 5 — 5—3.2(b)(1). In vacating the sentencing order, the supreme court said:

“The crux of this issue is that defendant’s conduct in taking the liquor, standing alone, was not a felony under Illinois law for the value of the liquor was less than $150. It became a felony only because defendant had a prior conviction for the same offense. Since the 1979 conduct itself was not a felony it does not appear to fit within the legislative intent manifested by section 5 — 5—3.2(b). We consider that an extended term could have been imposed if the 1979 offense, exclusive of any other, had constituted a felony, and the earlier conviction had been of a felony at least as egregious. An extended term would have been permissible here, if, for example, the value of the liquor taken in 1979 had exceeded $150 so as to make its taking a felony. But it did not, and its taking became a felony under section 16 — 1(e) solely by reason of the 1978 felony conviction. To again use that 1978 felony conviction to trigger the court’s authority to impose an extended term pursuant to section 5 — 5— 3.2(b) is, in our judgment, incompatible with that section’s requirement that the charges must be ‘separately brought and tried and arise out of different series of acts.’ The logical interpretation of that language indicates an intent to severely punish a recidivist convicted of separate felonies within 10 years where the latest offense consisted of conduct which itself constituted a felony. Here, the 1979 conduct was a simple misdemeanor until the earlier conviction was added by allegation and proof, and these circumstances, in our judgment, are simply not those at which section 5 — 5—3.2(b) is aimed.” (Emphasis in original.) People v. Hobbs (1981), 86 Ill. 2d 242, 245-46, 427 N.E.2d 558, 559-560.

We agree with the State’s contention that Hobbs does not directly resolve the issue raised here. There the same offense, a 1978 felony theft, increased the seriousness of the conduct from a Class A misdemeanor to a Class 3 felony and also served as the predicate felony conviction for extended term sentencing, while here the instant conduct was enhanced to a felony by one crime, but the extended term sentencing attached because of three unrelated felony convictions. For this reason, the State urges that we limit Hobbs to the double enhancement setting caused by a single prior conviction. We choose not to so limit the holding of Hobbs and instead rule in favor of lenity. While conceding that Hobbs addressed a different double enhancement setting and that portions of its holding apply only to double enhancement resulting from a single conviction, we also find that Hobbs, explicating expresses dissatisfaction with imposing extended term sentencing to any conduct which does not “itself constitute a felony.” (People v. Hobbs (1981), 86 Ill. 2d 242, 246, 427 N.E.2d 558, 560.) Thus, contrary to the State’s analysis, which focuses on the predicate felony conviction, Hobbs emphasizes that the underlying instant conduct is what must be examined. If it is conduct which, exclusive of enhancement provisions of the kind in issue today, constitutes a misdemeanor, then no extended term sentence may be imposed under section 5 — 5— 3.2(b)(1). Following this example, we simply believe that, in the interest of lenity, section 5 — 5—3.2(b)(1) should not be interpreted to authorize imposing up to six years’ imprisonment for shoplifting three pieces of meat, unless the General Assembly clearly expresses itself to the contrary.

In this regard, we do not find that People v. Clearlee (1981), 101 Ill. App. 3d 16, 427 N.E.2d 1005, mandates a contrary conclusion. There the defendant was convicted of unlawful use of weapons, generally a misdemeanor, but because he was convicted of a felony within the preceding five years, the conduct constituted a Class 3 felony. (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(b).) He received an extended sentence and appealed, claiming such sentencing was improper because of double enhancement. The appellate court affirmed the sentencing order saying that because the circuit court considered other felony convictions than the one used to enhance the subsequent conduct to a felony, no impermissible double enhancement had occurred. Clearlee was filed just two weeks after Hobbs was issued, however, and contained no discussion of Hobbs whatsoever. For this reason, we believe Hobbs casts some doubt on the continued validity of Clearlee and accordingly choose not to adhere to Clearlee’s holding.

For the foregoing reasons, we affirm the judgment of conviction entered in the circuit court of Kankakee County and vacate and remand the sentencing order for further proceedings consistent with the opinions herein expressed.

Judgment affirmed; sentence vacated; cause remanded.

BARRY, RJ., and ALLOY, J., concur.


author: JUSTICE LONDRIGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD G. PEARSON, Defendant-Appellant.
    Fourth District
    No. 17540
    Opinion filed August 5, 1982.
    Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas L. Brownfield, State’s Attorney, of Havana (Robert J. Biderman and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Ronald Pearson was convicted of reckless conduct and criminal damage to property valued at less than $150. He was sentenced to 364 days’ probation with the condition that 13 weekends of that probation be spent in jail, a $250 fine, and restitution. He appeals from the convictions and sentence.

Pearson raises two issues on appeal: (1) whether the trial court erred in entering convictions for both criminal damage to property and reckless conduct where the act of damaging the property was also the act which gave rise to the reckless conduct charge and (2) whether the trial court erred in imposing restitution as a condition of probation and in failing to fix the amount of restitution or the period of payment.

The charges filed below arise out of an incident occurring on February 13, 1981. Albert Hoffman testified that at approximately 11 or 11:30 that evening he had been in the process of closing his tavern and counting the night’s receipts. Two men entered the tavern, one of whom, Charles Brackney, Mr. Hoffman knew. The two men sat at the bar and asked for a half pint of liquor. Hoffman sold it to them and then asked them to leave because he wished to go to the hospital to visit his wife. Hoffman stated that the two men refused to leave and an argument ensued. Eventually, Hoffman testified, Brackney took the other man to the door and Mr. Hoffman went to the telephone and called the sheriff. Hoffman identified defendant as the other man and testified that the defendant grabbed a portable air compressor which was located near the door. Hoffman testified that he dropped the telephone and grabbed the compressor, shutting the door after defendant went out. Hoffman locked the door and, as he stood approximately two feet from the door, saw defendant swing his arm and defendant’s fist hit the glass. Some of the broken glass hit Mr. Hoffman. Two of Mr. Hoffman’s fingers were bleeding, a piece of one finger having been completely cut off. Hoffman testified that he summoned a neighbor to watch the tavern and drove himself to the hospital.

Charles Brackney testified in defendant’s behalf. He stated that he and defendant had arrived at the tavern at approximately 10:30 p.m. Defendant had initially stayed in the car as Brackney went in to purchase a half pint of liquor. Defendant came into the tavern and went into the restroom as Brackney was asking the price of the whiskey. Brackney recalled that defendant asked him if he wished to play a game of pool but that Mr. Hoffman had indicated that he was closing because he wished to visit his wife in the hospital. Brackney then told defendant that they had to leave and defendant said, “All right.” Brackney recalled that defendant was in front of Hoffman as defendant and Brackney left the tavern and that defendant had pushed the compressor, which was near the door, against the wall. As defendant was leaving, Hoffman came forward and accused them of attempting to steal the compressor. Brackney testified that he shoved defendant out the door and the two left. While they were on their way to the car, Brackney heard the sound of breaking glass. He got into the car and defendant said that it was none of their business. Brackney . stated that he never turned to look back.

Defendant testified that he had been listening to the radio when Brackney went into the tavern for the half pint of liquor. When he entered the tavern and went to the bathroom, he passed the pool table and stopped with the intention of starting a game. Defendant recalled that the air compressor was in the way and that he had moved the compressor aside. When defendant came out of the restroom, Brack-ney and ’Hoffman were talking and defendant asked Brackney if he wished to play a game of pool. Brackney stated that the tavern was closing and that Mr. Hoffman wished to go see his wife in the hospital. The two men then walked to the exit of the tavern. Defendant testified that he moved the compressor over towards the left side of the door. As he reached the door he felt a nudge from behind and turned to see Brackney coming through the door behind him. Defendant testified that he heard Hoffman saying something about trying to take the compressor. The two men responded that they were not trying to take the compressor and continued out the door. Defendant recalled that when they were approximately half way to their car, they heard the sound of breaking glass. Defendant turned to look and noted that Brackney was approximately three to four feet behind him. Defendant stated that he did not know how the window had been broken.

In People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, our supreme court dealt with the issue of multiple convictions arising from the same physical act. The court rejected the so-called independent motivation test as “a standard for determining whether multiple convictions and concurrent sentences are permissible.” (66 Ill. 2d 551, 566, 363 N.E.2d 838, 844.) The court set forth the proper method of analysis in the following passage:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, . lesser included offenses, convictions with concurrent sentences can be entered.” 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45.

In the present case, the standard set forth in King mandates vacation of defendant’s conviction for criminal damage to property. Both the conviction for criminal damage to property and the conviction of reckless conduct were based upon the same solitary physical act — the breaking of the tavern door window by defendant.

The State argues that the nature of the two crimes, criminal damage to property and reckless conduct, are totally different. One involves Hoffman’s property interest and the other is a crime against his person. The State further points out that neither is a lesser-included offense of the other.

King does not make a distinction based upon the nature of the victim’s interest invaded by the defendant. King and its progeny state that where a single physical act is involved, only one conviction may stand. We reject the property interest-personal interest theory proffered by the State. The conviction for criminal damage to property is hereby vacated.

Defendant also urges us to reverse that portion of the judgment imposing restitution because of the failure of the trial court to determine whether the defendant could pay restitution and because of the failure of the trial court to determine the amount and manner of payment. Defendant’s objection to the failure of the trial court to determine his ability to make restitution is waived; defendant failed to object at his sentencing hearing, and the record discloses that he has an ability to pay. (See People v. Wilson (1980), 87 Ill. App. 3d 544, 408 N.E.2d 1209.) The trial court did err in failing to specify the amount of restitution to be made and the period for making payment to the victim. (People v. Daminski (1980), 80 Ill. App. 3d 903, 400 N.E.2d 708.) The trial court’s order of restitution is hereby vacated and the matter is remanded to the circuit court of Mason County with directions to hold a hearing to determine the amount of restitution to be paid and the conditions of payment (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-6).

Conviction for reckless conduct and sentence affirmed; conviction for criminal damage to property vacated; order of restitution vacated and remanded for hearing on the amount of restitution and the manner of payment.

Affirmed in part, vacated in part and remanded.

WEBBER and MILLS, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
      In re MORGAN WASHINGTON HOME, Trustee of the John M. Scott Industrial School Trust.—(MORGAN WASHINGTON HOME, Petitioner-Appellee, v. TYRONE C. FAHNER, Attorney General, Respondent-Appellant.)
    Fourth District
    No. 4 — 82—0041
    Opinion filed August 5, 1982.
    Tyrone C. Fahner, Attorney General, of Springfield (Edward M. Kay, Assistant Attorney General, of counsel), for appellant.
    Ralph Turner, of Luedtke, Hartweg & Turner, of Bloomington, for appel-lee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

At issue in this case is the determination of a fee for attorneys who represented a charitable entity in complicated chancery litigation pursuant to a contingent fee contract. The Attorney General of this State, appearing in discharge of his statutory and common law duty to protect the assets if charitable trusts situated in this State, has appealed from an order fixing the fees. The order was entered by the circuit court of McLean County pursuant to the petition of Morgan Washington Home, a not-for-profit corporation, and trustee of the John M. Scott Industrial School Trust, requesting determination of the fees to be paid by them to the law firm of Luedtke, Hartweg, and Turner. The circuit court found the sum of $92,200, requested in the petition, to be a reasonable fee. We affirm.

The chancery suit began on August 12, 1977, when the trustee of a substantial trust created under the will of an Illinois jurist, John M. Scott, brought suit in the above court seeking instructions with reference to the disposition of the residue. Petitioner, Morgan Washington Home, intervened in that suit claiming entitlement to the residue. The details of this litigation are set forth in our opinion in Burr v. Brooks (1979), 75 Ill. App. 3d 80, 393 N.E.2d 1091, and in the opinion of the supreme court in affirming that decision and remanding to the circuit court (Burr v. Brooks (1981), 83 Ill. 2d 488, 416 N.E.2d 231). Upon remand the circuit court entered an order awarding petitioner a portion of the residue of the estate. The parties agree that the value of the award was approximately $3,110,000. On November 23, 1981, petitioner filed in the circuit court a declaration of trust creating the John M. Scott Industrial School Trust. On December 7, 1981, the court entered an order assuming jurisdiction of the trust.

The Attorney General maintains on appeal that because the fees would be paid from the corpus of a charitable trust, they should be moderate, based almost entirely on time involved and should not be enlarged because of their contingent nature. Because the fees did not meet that standard, he deems them excessive. He also asserts that the information presented concerning the services performed and the time spent by petitioner’s attorneys was not presented in sufficient detail.

As explained in Burr, petitioner was an alternate beneficiary under the trust created by the Scott will and took only upon (1) the failure of a gift to the City of Bloomington, and (2) the ability of petitioner to qualify under the terms of the instrument. Evidence at the hearing on the petition concerning fees showed that the Luedtke, Hartweg, and Turner firm was not regular counsel for petitioner but was selected because of their competency and because they had no close connection to any adverse interests. The evidence also showed that petitioner’s directors gave thorough consideration to the best method of arranging for fees. Originally, agreement was reached that the attorneys would work for a small retainer with the balance of their fees being contingent. When a trial court award to petitioner was reversed on appeal and the case remanded to the trial court, a new, fully contingent fee arrangement was worked out. At that time the strength of petitioner’s claim was almost as uncertain as at the start of the litigation. The petitioner’s directors had decided that they could afford the substantial fees inherent in litigation of this nature only if the fees were contingent upon the recovery of sums from which the fees could be paid.

The second fee arrangement was reduced to a written document providing for fees in a percentage of the amount recovered. The applicable percentage was dependent upon the subsequent course of the litigation. under the course the litigation took, the agreement provided the attorneys would receive five percent of the first $1,000,000 of recovery and two percent of any additional recovery. The fee awarded was that to which the attorneys would have been entitled under the agreement. However, the trial court indicated it recognized the agreement was not binding on it, and it was required to determine a fee that was reasonable. The fee awarded was supported by the testimony of David Wochner, a lawyer practicing in matters involving probate, corporations, and taxation, who stated the fee was reasonable in his opinion.

In support of his contention that the fees for an attorney representing a charitable trust must be moderate and based predominantly upon time spent, the Attorney General cites In re Estate of Thompson (1967), 426 Pa. 270, 232 A.2d 625, Murphey v. Dalton (Mo. 1958), 314 S.W.2d 726, In re New York Investors, Inc. (2d Cir. 1935), 79 F.2d 182, In re Crawford’s Estate (1931), 307 Pa. 102, 160 A. 585, and Wemme v. First Church of Christ, Scientist (1924), 111 Or. 386, 227 P. 277. In Thompson, a fee for an attorney for a charitable trust was fixed at a figure less than the amount agreed upon in a contingent fee contract, but the amount of the fee appeared to reflect the contingent nature of the fee. In Murphey, the court disregarded the contingent nature of the arrangement for fees of an attorney for a charitable trust. However, funds of the trust had been pledged to assure the attorney he would receive some fees. New York Investors concerned the fees of attorneys for debtors’ estates in bankruptcy proceedings. In such cases, the lawyers are assured of some fees at the outset of their employment. In In re Crawford’s Estate, the court upheld an attorney’s original fee request while stating by way of dictum that fee awards should be moderate.

We see little in the above cases from other jurisdictions which would (1) require the fees here to be reduced to a level described by the Attorney General as moderate, or (2) require the contingent nature of the fee agreement to be disregarded. No cases from this State so requiring have been called to our attention. The Code of Professional Responsibility (79 Ill. 2d R. 1 — 101 et seq.) did not become effective until July 1, 1980, after the last contingent fee contract was agreed upon. However, it is helpful for guidance. It gives no indication that attorney fees for representation of a charitable entity should be anything less than what a reasonable fee would be, nor does it give any indication that the charitable nature of the client restricts the use of contingent fee contracts. Rule 2 — 106(c) (79 Ill. 2d R. 2 — 106(c)) recognizes the propriety of the contingent fee contracts under proper conditions except in certain criminal and matrimonial matters. Rule 2— 106(b)(8) states “whether [a] fee is fixed or contingent” is a factor to consider in determining its reasonableness. 79 Ill. 2d R. 2 — 106(b)(8).

In complicated matters such as those involved in Burr, the quality of legal services available to charitable entities would deteriorate if those entities were limited in obtaining counsel to those who would volunteer to work at a rate less than that usually paid by others for similar litigation. The quality would also suffer if the entity could not contract with attorneys on a basis whereby any fee would have to come from recovery obtained from the litigation. Charitable entities are no different than other clients in this respect. Rule 2 — 106(c) is a recognition of this need. The rule is applicable to fee contracts with charitable entities. The fees approved here were not improper for being immoderate nor because they were enhanced due to their contingent nature.

Rule 2 — 106(b)(4) still permits consideration of “the amount involved and the results obtained” (79 Ill. 2d R. 2 — 106(b)(4)) in litigation in determining reasonable attorney fees. However, supreme court decisions of the past decade concerning attorney fees in the somewhat similar field of class actions have indicated that the first step in measuring the reasonableness of a fee is to determine the number of hours properly spent by the attorneys and the usual hourly rate for services of that caliber. (Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019; Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1.) As explained most recently in Fiorito, once a figure is obtained by multiplying the hours spent by the appropriate rate, a further adjustment should be obtained by use of a multiplier to reflect the contingent nature of the fees and the results obtained. The court indicated that a multiplier of over three could seldom be justified and that usually it should be lower.

Here, the evidence indicated that almost all of the work was performed by attorney Ralph Turner, and that only the hours of his work were set forth in the affidavit supporting the petition. It set forth that he spent 762.8 hours. The evidence showed his usual charge for work of this nature varied during the course of the litigation from $50 to $60 per hour. Such a rate was shown to be reasonable. Applying the first step of the Fiorito test, and giving a $60 rate to all hours, a figure of approximately $46,000 would be obtained.' A multiplier of slightly over two would produce a fee of $92,000 as awarded. Even if an hourly rate of only $50 were applied, a multiplier of about 2.4 would indicate a fee of approximately that awarded. The outcome of the litigation was very uncertain, and the result was excellent from the standpoint of petitioner. The fees awarded met the test of Fiorito.

Although the Code of Professional Responsibility was not in force throughout most of this litigation, the fee arrangement here would also meet its test. Although the percentage of amount recovered is now given less significance than formerly in judging the reasonableness of fees, it is significant here that the highest percentage bracket in the fee agreement was only five percent.

The Attorney General complains that the attorney’s affidavit of hours spent filed in support of the petition for fees lacked sufficient detail. He cites the following itemization as an example:

“Prepare for pre-trial conference in case and, in accordance with Court’s instructions at pre-trial conference, prepare pretrial memorandum outlining the issues of the case, and research necessitated thereby. 79.8
Preparation of Appellee’s brief in response to brief of Appellant City of Bloomington in the Fourth District Appellate Court, preparation of reply brief to cross-appeal by Bloomington Board of Education. 133.3
Prepare Petition for Leave to Appeal to the Supreme Court and prepare response to Petition for Leave to Appeal filed by City of Bloomington, research and file supplemental brief to Supreme Court. 133.3.”

Greater detail might be desirable. However, the theory that greater focus should be put upon the hours spent in determining fees gained greater force during the course of the litigation here. Under the circumstances, we hold the itemization to be adequate.

Greater itemization would require producing voluminous time sheets. One of the purposes of itemization is to determine whether the hours spent are unnecessary duplications of those of others. (Fiorito.) Here, petitioner’s position in the litigation was different than and adverse to the other parties. Although more than one member of the law firm spent some time in advising on the case, the testimony indicated that all of the billing was for the services of one attorney. Thus no problems of possible duplication of work existed. Furthermore, the record of the litigation itself supports the substantial number of hours charged.

As the fees were shown to be reasonable and proper, we affirm their award.

Affirmed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE TRAPP

text:
    CUMMINGS FOODS, INC., d/b/a Cummings IGA Foodliner, Plaintiff-Appellant, v. GREAT CENTRAL INSURANCE COMPANY, et al., Defendants-Appellees.
    Fourth District
    No. 4 — 82—0335
    Opinion filed August 5, 1982.
    Drach, Terrell & Deffenbaugh, P. C., of Springfield, for appellant.
    Heyl, Royster, Voelker & Allen and Alfred B. LaBarre, of Ensel, Jones, Blanchard & LaBarre, both of Springfield (David L. Requa, of counsel), for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff sued to recover damages against defendants arising out of the theft of approximately $22,000 from plaintiff’s grocery store in Brighton, Illinois. It appeals the order of the trial court which dismissed all counts of plaintiff’s second amended complaint for failure to state a cause of action.

In count I of plaintiffs second amended complaint, recovery was sought against defendant, Great Central, under the terms of a comprehensive insurance agreement which provided coverage for robbery as defined in the policy. Count II, which was also directed against Great Central, sought recovery of punitive damages and attorney’s fees “under the statute” for defendant’s alleged wilful, wanton, and malicious denial of coverage. Count III of plaintiff’s complaint sought damages against defendant, Glenn-Wohlberg & Co., for its alleged breach of a duty to place the insurance with a “reliable insurer” and, like count II, count IV sought recovery of punitive damages and attorney’s fees for Glenn-Wohlberg’s alleged wilful, wanton, and malicious denial of plaintiff’s claim. Count V requested damages from Wetterau Foods for its breach of duty to “provide a reliable insurance agent” and count VI contained a request as in count IV for punitive damages and attorney’s fees.

Disputed paragraph three, which is the only definition of robbery claimed to be applicable by plaintiff, defined robbery as:

“[T]he taking of insured property *** by any other overt felonious act committed in his [a custodian’s] presence and of which he was actually cognizant, provided such other act is not committed by an officer, partner, or employee of the insured.”

In count I it is alleged that on May 12, 1980, Jim Cummings had the sum of $22,000 ready to be deposited in the bank when six women entered the store whom he suspected would be shoplifters. It was alleged that Cummings left the money in the store office with the door open, and proceeded to the counter to sack groceries to prevent suspected shoplifting. One of the women led Cummings down the store aisles engaging him in conversation, while yet another went to the checkout counter. It is alleged that Cummings became suspicious of the women’s actions and turned toward the door to see the balance of the women run out to three automobiles parked near the front of the store. The complaint further alleged that Cummings observed that the women had taken- the money, and immediately called the Brighton police department informing the dispatcher that a robbery had occurred. A police report incorporated by reference in the complaint indicates that the women had occupied the employees in the store with questions over store products, but that no witness saw the women in or near the office, or with the money. No allegation is made by plaintiff that these suspects were convicted of the alleged offense, or found with the money.

The first issue we address on appeal is plaintiff’s contention that defendant Great Central’s failure to challenge coverage under the robbery clause of the agreement in its motion to dismiss requires that we treat such defense as waived.

The complaint makes no specific allegation which stated what portion of the insurance agreement afforded coverage for the claimed loss. Defendant’s motion not only alleged generally that the count failed to state a cause of action, but also suggested that plaintiff had failed to set forth the policy provision at issue. In defendant’s legal memorandum, which accompanied the motion, defendant mentioned several possible bases under the policy which plaintiff conceivably could have claimed coverage under, including the robbery provision.

While we agree with plaintiff’s suggestion that issues and grounds not raised in a motion to dismiss are not preserved for review (Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550), we conclude that plaintiff was apprised of defendant’s challenge in the memorandum and by the general reference in the motion that plaintiff had not alleged that coverage was provided for in any provision, implicitly including the robbery clause. We find sufficient specification in defendant’s motion to comply with section 2 — 615’s requirement that the motion specify the defects complained of (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615(a)), and reject plaintiff’s argument that defendant has waived any challenge to plaintiff’s claim of coverage under the robbery portion of the insurance agreement.

Plaintiff next argues that the facts as pleaded in count I established that an overt felony took place while the custodian, Jim Cummings, was present and actually cognizant thereof within the meaning of the policy language. Plaintiff additionally suggests that the insurance clause is ambiguous, and because of this the policy should be construed against the maker, Great Central.

The standard for ruling on a motion to dismiss is well established. On appeal from a ruling on a motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615), all well-pleaded facts and reasonable inferences therefrom stand admitted and the complaint should be dismissed only if no set of facts, as pleaded by plaintiff, could state a cause of action. (Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill. 2d 379, 432 N.E.2d 849.) For reasons given below, we believe the trial court properly dismissed counts I through VI of plaintiff’s second amended complaint.

The policy language at issue has been interpreted by Illinois courts. Grimes v. Maryland Casualty Co. (1939), 300 Ill. App. 62, 20 N.E.2d 982; Sinda v. Home Indemnity Co. (1955), 4 Ill. App. 2d 546, 124 N.E.2d 557.

In Grimes, suit was brought against an insurer under a policy of robbery insurance which defined robbery in the same language as that at bar, with the exception that the custodian there was required to be “ ‘actually cognizant at the time of the felony.’ ” (300 Ill. App. 62, 64.) In Grimes, the insured’s employee had been directed to a railroad freight terminal to pick up a shipment of candy and tobacco. The employee parked the delivery truck, walked into the freight terminal, and raised the freight terminal door when he observed the delivery truck being driven away from the loading area.

The trial court directed a verdict for the defendant and on appeal, the case was decided on the question of whether the custodian was present when the overt felony occurred. Finding the contract unambiguous, the court applied holdings from cases which considered whether a will was attested in the testator’s presence to the requirement of the custodian’s presence. The court construed the word “presence” to require unobstructed physical presence at the place of the overt felony and sustained a directed verdict for the defendant since there was a brick wall, or closed door, between the custodian and the goods at the time the overt felony was commenced. (300 Ill. App. 62, 65-66, 20 N.E.2d 982, 983-84.) The court reasoned that the purpose of such requirement was undoubtedly so that the custodian, if present, could attempt to prevent the robbery or sound an early alarm so that it could be prevented.

The only other Illinois case we have discovered involving a similar policy provision is Sinda, though it considered the question of whether the custodian was actually cognizant of the overt felony.

Other cases called to our attention by the parties dealing with a similar policy provision have also considered the interpretation of the word “presence.” (See State Farm Fire & Casualty Co. v. Ackerman (1972), 151 Ind. App. 464, 280 N.E.2d 332; Buffalo Smoketeria, Inc. v. Metropolitan Casualty Insurance Co. (1932), 143 Misc. 894, 258 N.Y.S. 581. The latter court is not a court of review.

In Ackerman, the insured and three employees were in a service station garage when two persons entered the station showroom seeking change for vending machines. One employee went to assist the two, and returned to the garage area. One of the persons then began operating a candy machine while the other apparently pried open the cash register and took some money. Within a few minutes an employee returned to the showroom and discovered the cash missing from the register, and the two gone. The appellate court concluded that the policy language defining robbery was ambiguous and sustained a construction in favor of the insured. In view of the court’s conclusion that the policy was ambiguous, the court believed that “[ajnother reasonable interpretation of the word ‘present’ is that Ack-erman was ‘present’ within the service station, and was separated from view of the crime only by the partition between the two rooms.” 151 Ind. App. 464, 470, 280 N.E.2d 332, 336.

We do not agree with the plaintiff’s contention that the policy at issue was ambiguous. We believe that the decision in Grimes is a correct interpretation of the word “presence,” and that the decision in Ackerman and Buffalo Smoketeria construed the word beyond its generally accepted meaning. Following Grimes, and applying its holding to the alleged felony theft of the money herein, we find that plaintiff failed to satisfy this condition absent any allegation that plaintiff’s custodian had an unobstructed view of the felony.

Even assuming that plaintiff satisfied the requirement of the custodian’s presence, we believe the second requirement in the policy, i.e., that the custodian be actually cognizant of the overt felony, was also not met.

In Sinda, an action was brought to recover for a loss allegedly covered by a policy insuring against robbery with the same definition as that at bar. There the insured operated a self-service grocery store, and as a service to its customers cashed checks for them. The insured had placed a strong box containing approximately $2,000 under a counter in the liquor department and had left to answer a phone call. On his way to answer the phone, he heard a rattle resembling the rattle of money in the strong box, but did nothing about it. When he returned he could not find the money and inquired of his employees, and searched for two hours before concluding it was stolen. The insured contended that he was covered under the robbery provision, and the trial court agreed and entered judgment in his favor. On appeal, the court concluded that he was not actually cognizant of anything, and reversed the judgment of the trial court. The court held that the record failed to show that he was aware of any overt act committed at the liquor counter while he was in the office talking on the phone. 4 Ill. App. 2d 546, 554, 124 N.E.2d 557, 559.

In Ashcraft v. United States Fidelity & Guaranty Co. (Ky. App. 1953), 255 S.W.2d 485, the insured’s employee had returned from the bank and given the insured approximately $800 in cash, which was placed in the pocket of a smock being worn by the insured. Shortly thereafter, the insured was informed that his dog was in a fight in front of the store and he proceeded to investigate. He went outside and saw three men watching the fight, one of whom owned another dog which was also involved. The insured kicked the dogs to separate them, and the other men jarred him about during the process. When he returned inside, the money was missing from the pocket of his smock. Subsequent questioning of the employees and a search proved fruitless, so a claim was made under an insurance agreement containing an identical robbery provision as that at bar. The appellate court sustained a directed verdict for the defendant and concluded that the insured “did not then know, nor can he now positively state, that the colored men perpetrated ‘an overt felonious act’ in his presence by removing the money from his pocket.” 255 S.W.2d 485, 487.

The facts of plaintiff’s complaint are of like import. Plaintiff did not allege that he saw the women near the office, that he saw them or anyone with the money, that the women were ever found with the money, or that they were ever tried or convicted for the alleged offense. The facts may bring a conclusion that these women took the money, but our function is simply to interpret the policy, not rewrite it. The act alleged as the felony was the taking of the money, and no facts demonstrate the custodian’s “actual cognizance” of this act of taking as defined in the policy. We believe the trial court correctly dismissed count I of plaintiff’s complaint.

As to the allegations of count III, plaintiff alleged that defendant, Glenn-Wohlberg & Co., was the authorized agent of Great Central and solicited plaintiff for the purpose of placing insurance with the carrier. Plaintiff alleged that defendant “owed a duty to plaintiff, *** to place the insurance with a reliable insurer; and further owed a duty to the purchaser of the insurance to service the policy after such had been issued.” Plaintiff set forth the facts of the theft and alleged that as a breach of this duty, Glenn-Wohlberg had maliciously and wil-fully denied plaintiff’s claim. In support of its contention that count III states a cause of action, plaintiff cites Talbot v. Country Life Insurance Co. (1973), 8 Ill. App. 3d 1062, 291 N.E.2d 830, and Le-dingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75.

In Talbot, a complaint against an insurance agent was held to state a cause of action in tort where it alleged that the agent had failed to act with promptness in accepting or notifying the applicant of the rejection of an application for life insurance submitted to the insurer on September 13, 1969, and rejected two days after the proposed insured’s death on February 21, 1970.

At bar, there is no complaint that defendant Glenn-Wohlberg did not act promptly to secure coverage. The complaint simply states a conclusion that the coverage was not placed with a reliable insurer. A similar issue was presented in Omni Overseas Freighting Co. v. Cardell Insurance Agency (1979), 78 Ill. App. 3d 639, 397 N.E.2d 112. In Omni, the plaintiff, an international cargo company, hired the defendant to procure insurance coverage for possible damage to goods while in plaintiff’s possession. The insurance broker procured coverage from Transamerica Insurance Group, but this policy was later cancelled. The insurance broker failed to notify the plaintiff of the cancellation, and as a result a subsequent loss was not covered. The court held that the failure of the insurance broker to procure the type of insurance requested by plaintiff was a. breach of the brokerage agreement he had entered into with the plaintiff.

Ordinarily, although the cases do not draw a clear distinction, the suit is one for breach of the agent’s agreement to procure a specific type of insurance coverage. (See Gieseke v. Hardware Dealers Mutual Fire Insurance Co. (1963), 46 Ill. App. 2d 131, 195 N.E.2d 32.) Cases have imposed liability on an agent for a failure to act to insure that a policy contains no material defects in coverage. In National Boulevard Bank v. Brokerage Resources, Inc. (1976), 42 Ill. App. 3d 940, 356 N.E.2d 988, it was held that an insurance broker could be held liable in negligence for failing to procure a vacancy endorsement on a fire insurance policy when such endorsement was material for coverage, and the broker had testified that this endorsement coverage was generally an issue a broker would investigate when setting up a fire policy.

Plaintiff’s count III does not allege that Glenn-Wohlberg was requested to obtain larceny coverage, and no allegation is made that its failure to do so would have foreseeably resulted in damage to plaintiff. Plaintiff’s allegation that defendant had the duty to provide a “reliable insurer” is not only conclusory, but fails to allege any undertaking or act of negligence on the part of Glenn-Wohlberg. We conclude that plaintiff’s count III fails to state a recognized cause of action. Moreover, count III alleged that Glenn-Wohlberg was acting as Great Central’s insurance agent, and it is not alleged that Glenn-Wohlberg was acting as plaintiff’s insurance agent in the matter. This presents an additional reason to hold count III insufficient to create a duty on the insurance agent to act on plaintiff’s behalf. See Gieseke v. Hardware Dealers Mutual Fire Insurance Co. (1963), 46 Ill. App. 2d 131,140-41,195 N.E.2d 32, 37.

Plaintiff’s additional allegation that agent Glenn-Wohlberg & Co. had a duty to service the insurance policy after it was issued also presents no recognizable cause of action. He correctly cites Le- dingham as authority for the rule that an insurer has a duty to act in good faith and deal fairly with the other party to the transaction. Plaintiff then cited Landau v. Landau (1951), 409 Ill. 556, 101 N.E.2d 103, as authority for the proposition that an agent may be held liable for taking an affirmative role in violating a duty a disclosed principal owes to a third person. While Landau so held, plaintiff made no allegation to show in what respect Glenn-Wohlberg dealt unfairly with the insured in servicing the policy, and no allegations to demonstrate that the agent took an affirmative role in breaching the duty of Great Central to deal in good faith and fairly with Cummings Foods. The only allegation is that the agent relayed the denial of the claim from Great Central to the insured. There are no allegations to demonstrate how this was a breach of the principal’s duty of good faith and fair dealing. In view of the previous discussion, it is clear that the insurer was acting fairly with the insured in asserting a policy defense within the language of the agreement. The agent who denied the claim on the same basis could not be said to have acted in bad faith and unfairly.

Count V of plaintiff’s complaint sought actual damages of $10,000 against Wetterau Foods for its alleged breach of a duty to provide a “reliable insurance agent.” Plaintiff averred that Wetterau Foods, Inc., in consideration of plaintiff’s purchase of merchandise, provided various services pertaining to the operation of Cummings IGA, one of which was the securing of an insurance agent. Plaintiff claims “that one of the services provided by the defendant, Wetterau Foods, Inc., a Missouri corporation, in providing, securing, and placement of insurance owed a duty to the plaintiff *** to provide a reliable insurance agent.” Plaintiff alleged that Wetterau, through its agent, wilfully, wantonly, and maliciously refused to assist it in obtaining recovery and wilfully, wantonly , and maliciously denied its claim. Plaintiff alleged that as a result of the denial of the claim it was damaged in the sum of $10,000.

Neither party has cited any authority affirming or defeating plaintiff’s claim in count V. Plaintiff has pleaded no facts to show the existence of such a duty arising under a contract between the parties, and we believe that the allegations fail to demonstrate sufficient facts to create a duty arising in tort, the breach of which would render Wetterau Foods, Inc. liable to the plaintiff. It is clear that to state a cause of action based on negligence the complaint must allege facts showing a duty , a breach of that duty, and resulting damages. (Borushek v. Kincaid (1979), 78 Ill. App. 3d 295, 397 N.E.2d 172.) Plaintiff’s complaint alleged no facts to establish a duty either in contract, or in tort. We conclude that the trial court acted properly in dismissing this count.

Counts II, IV, and VI of the second amended complaint sought punitive damages and attorney fees against defendants for their alleged breach of duties pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1981, ch. 73, par. 767). Count II alleged that plaintiff advised defendant’s agent, Glenn-Wohlberg & Co., of the loss and the circumstances surrounding the claim; that Glenn-Wohlberg’s agent denied coverage because no one saw the money taken, had been threatened, or saw the thief go into or out of the office; that the claim was justified; and, finally, that the denial of the claim by Great Central was wilful, wanton, and malicious, entitling plaintiff to $100,000 in punitive damages and attorney’s fees “under the statute.”

Defendant argues that no specific facts are alleged to support an award of punitive damages, and that punitive damages are not available in a breach of contract action by virtue of the decision in Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373. Alternatively, defendant Great Central argues that the allegations of the complaint do not establish that the denial of payment was vexatious and unreasonable under the above cited section of the Insurance Code.

While it is true, as defendant points out, that Debolt did deny a common law tort action for punitive damages arising out of wilful refusal to pay an insurance claim (but see Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540; see also Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 418 N.E.2d 421), plaintiff at bar sought recovery “under the statute,” presumably section 155 of the Insurance Code of 1937 (Ill. Rev. Stat. 1981, ch. 73, par. 767).

Section 155 provides, in part:

“In any action by or against a company wherein there is. in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling the claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;.
(b) $5,000.” Ill. Rev. Stat. 1981, ch. 73, par. 767.

Two reasons support the dismissal by the trial court of count II of plaintiff’s complaint. First, it is clear that plaintiff’s recovery under section 155 is limited to $5,000. Secondly, plaintiff has not presented sufficient facts to show that the insurance company’s denial was vexatious and unreasonable. Its assertion of a legitimate policy defense, supported by case authority, cannot be considered unreasonable or vexatious. See Jenkins v. State Security Insurance Co. (1978), 56 Ill. App. 3d 737, 371 N.E.2d 1203.

Count IV alleged that Glenn-Wohlberg & Co. was the agent of defendant Great Central, and had solicited plaintiff to place insurance with Great Central. Plaintiff alleged that Glenn-Wohlberg had a duty to place the insurance with a reliable insurer, and further had a duty to service the policy after its issuance. Plaintiff claims GlennWohlberg had denied the claim and alleged that the denial was wilful and malicious entitling plaintiff to obtain recovery of attorney’s fees and punitive damages of $100,000 “under the statute.” Count VI alleged that Wetterau Foods, in consideration of plaintiff’s purchases of merchandise from it, provided plaintiff with an insurance agent to procure coverage for its grocery store. The count further alleged that defendant Wetterau had a duty to provide a reliable insurance agent and an agent who would represent plaintiff’s interest in any insurance matter. It was claimed that Wetterau, through its agent, GlennWohlberg, wilfully, wantonly, and maliciously denied plaintiff’s claim entitling plaintiff to attorney’s fees and punitive damages “under the statute.”

We think it clear that plaintiff’s claim for attorney’s fees and punitive damages in counts IV and VI should be denied for the reason that the statute referred to (i.e., section 155 of the Illinois Insurance Code of 1937) does not allow recovery of punitive damages and attorney’s fees against noninsurers. The evident purpose of section 155 was to provide an insured with the remedy against an insurer under circumstances where the issue is the amount of loss, or the liability of the insurer on a policy of insurance. Plaintiff’s claim under counts IV and VI requesting punitive damages against these noninsurers was properly dismissed.

For the reasons stated, the trial court’s order dismissing counts I through VI of plaintiff’s second amended complaint is affirmed.

Affirmed.

GREEN, P. J., and LONDRIGAN, J., concur.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE C. MOORE, Defendant-Appellant.
    Fourth District
    No. 17578
    Opinion filed August 9, 1982.

      Daniel D. Yuhas and Jeffrey D. Foust, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Dangerous Drug Abuse Act case.

If a defendant is certified to have successfully completed a licensed drug treatment program, can the trial court nevertheless refuse to dismiss the underlying criminal proceeding?

No.

We reverse.

Facts

A somewhat lengthy recitation of the facts is necessary for a proper understanding of this case. On April 14, 1975, Moore was charged with theft in that he exerted unauthorized control over an automobile. At his arraignment, defendant expressed a desire to undergo treatment pursuant to the Dangerous Drug Abuse Act (DDAA) (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.3 et seq). The Department of Mental Health and Developmental Disabilities (DMH) subsequently determined that defendant was acceptable for treatment under the DDAA. On July 22, 1975, defendant voluntarily waived his right to a jury trial, and stipulated evidence was heard on the automobile theft charge. A finding of guilt was deferred pursuant to section 9 of the DDAA (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.9) and a written order was entered committing defendant for treatment under the Act.

At the July 22 hearing, the defendant was told that during his supervision, he would have to comply with the requirements of the DMH. If he did so, he could be “discharged, dismissed from this charge.” Among the conditions of defendant’s supervision contained in the order committing him for treatment were:

“2.That the Defendant shall submit to the supervision and treatment of the said Department [DMH] *** until discharged by said Department or by this Court.
3.That the Department of Mental Health *** notify this Court of any proposed release of said Defendant from institutionalization, supervision or treatment ten (10) days prior to such release.
4.That *** in the event the Defendant is to be discharged from the supervision of the Department [DMH] or from institutionalization, [the DMH is to] provide the Court recommended treatment or programs for post release supervision.” (Emphasis added.)

Also, at a preliminary hearing held on May 22, 1976, the court stated:

“If *** you stayed your period of time that the Department [DMH] required and did it successfully, then the trial [on charges of theft over $150] would not be resumed.”

The court apparently did not set a specific time limit on the period of defendant’s supervision.

Following commitment to custody of the DMH, defendant was placed in Gateway House, a residential therapeutic community in Springfield. In June 1976, defendant requested inpatient treatment from the Western Illinois Counsel on Alcoholism and was admitted to the Andrew McFarland Zone Center, a facility operated by the DMH, for such treatment. On July 22, 1976, defendant was discharged from McFarland. According to the discharge document, the discharge was absolute and the defendant was released to himself. The defendant’s after-care plan was described in its entirety as “Reside at Salvation Army with follow-up provided there.” The defendant’s discharge was signed by a medical doctor, a registered psychologist, and the superintendent of McFarland Zone Center.

On July 28, 1976, an alcoholism counselor at McFarland advised the trial court by letter that defendant “had completed our program” and was residing at the “in-resident” program of the Salvation Army Men’s Social Center in Springfield. The letter stated that the staff at McFarland would be in frequent communication with both defendant and the director of the Men’s Social Center and would “continue to advise the court under the provisions of the Dangerous Drug Abuse Act.” A subsequent letter dated August 11, 1976, from a registered psychologist at McFarland Zone Center, advised the court that the DMH discharged defendant from its supervision and care as improved. The letter further stated that defendant voluntarily left the “in-resident” program of the Salvation Army on August 6, 1976, that his present whereabouts were unknown, and that the DMH could not provide the court with any further recommended treatment for defendant.

On July 30, 1976, defendant filed a motion to dismiss the charges against him, on the ground that he had been discharged by the DMH after successfully completing his program of treatment. The State subsequently filed a petition to resume criminal proceedings against defendant on the ground that he had left the DMH without being discharged by either the Department or by the court, which was granted on August 23, 1981. A hearing on defendant’s motion to dismiss was held on September 13, 1976. The defendant did not personally appear at the hearing. Since defendant had been directed to personally appear on that date, a warrant for his arrest was issued. At the conclusion of the hearing, the court stated:

“I want to make it very clear for the record and for your information that the Court will in no way allow its Judicial function to be usurped and to let the Department [DMH] make the determination as to the discharge of this Defendant is an usurption of the Judicial function of the Government by the committee in [sic] and contrary to the Constitution.”

Upon defendant’s release in August 1981 from a Federal prison where he served a sentence on an unrelated charge, he was returned to Quincy on the basis of the outstanding warrant for his arrest. The defendant filed a second motion to dismiss on August 23, 1981, which was denied following a hearing on August 31, 1981. As a basis for its ruling, the court relied mainly on the fact that the DMH provided no advance notice of its intention to discharge defendant, and did not recommend any follow-up treatment programs for defendant as required by the court’s order of commitment. The court further implied that defendant should have interpreted the two-year limitation on supervision provided for in section 9 of the DDAA as an indication that defendant “was subject to the jurisdiction of the court for the two years.” At the same hearing, the court entered a judgment of guilty on the charge of theft of property having a value in excess of $150.

On October 30, 1981, the defendant was sentenced to 4 years’ imprisonment, with credit for time spent under supervision of the DMH.

Opinion

Section 9 of the DDAA provides in pertinent part:

“If the court *** determines that such an individual is an addict and is likely to be rehabilitated through treatment, the individual shall be placed under the supervision of the licensed program designated by the [Dangerous Drugs] Commission for treatment, *** for a maximum of 2 years and [the court] may require such progress reports on the individual as the court finds necessary. ***
Whenever an individual is placed under the supervision of a licensed program designated by the Commission for treatment under this Section, the pending criminal proceeding against him shall be continued without final disposition and shall be dismissed if a licensed program designated by the Commission certifies to the court that the individual has successfully completed the treatment program. If, by the expiration of the period, a licensed program designated by the Commission has not been able to certify that the individual has completed his treatment program, the pending proceeding may be resumed. If, however, the court believes that the individual will complete his treatment on a voluntary basis, it may, in its discretion, discharge the individual and dismiss the criminal proceeding. If, before the supervisory period expires, the licensed program designated by the Commission determines that the individual cannot be further treated, it shall so advise the court. The court shall thereupon terminate the supervision, and the pending criminal proceeding may be resumed. Whenever a criminal proceeding is resumed, time spent in treatment shall be deducted from any sentence imposed.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 911/2, par. 120.9.

We hold that the discharge document which was executed on June 22, 1976, coupled with the letter from Andrew McFarland Zone Center of August 11, 1976, amounts to a certification that defendant successfully completed the DMH’s treatment program within the meaning of the above statutory provision. As previously indicated, the discharge is denominated “absolute” and states that the defendant is released to himself. Subsequent to his release, defendant was to reside at the Salvation Army Men’s Social Center, which is not a treatment facility licensed or designated by the Dangerous Drugs Commission to provide treatment for dangerous drug abuse. Moreover, the letter of August 11, 1976, clearly and unambiguously states that defendant was discharged from the supervision of the DMH as improved. Although the specific language of the statute that the DMH certify “to the court that [defendant] has successfully completed the treatment program” is not included in any of these documents, we do not deem this deficiency to be determinative of the outcome of this case in view of the substantially similar import of the words which the DMH actually used.

Furthermore, we note that section 9 of the DDAA utilizes mandatory language as to what is to be done with a defendant upon certification of his successful completion of a dangerous drug abuse treatment program; the pending criminal proceeding shall be dismissed if and when such certification is received by the trial court within the period of defendant’s supervision, which is not to exceed two years. The implication of this statutory provision is that when a certificate of successful completion of a drug abuse treatment program is received by the trial court, it in effect loses jurisdiction over defendant; it can take no further action in the case except to dismiss the underlying charge(s).

In the present case, it is apparent that the notice requirements imposed by the trial court were designed to assure that the court retained control over the disposition of defendant after his successful completion of the drug abuse treatment program. The inclusion of such instructions in an order of commitment issued pursuant to section 9 of the DDAA conceivably serves little, if any, useful purpose, for when the trial court commits a defendant to supervision under that statutory provision, it in effect delegates to the DMH the power to release defendant from supervision, and thus from the court’s jurisdiction, if and when the defendant successfully completes the drug treatment program. Thus, the DMH’s failure to comply with the notice of intended release and recommended post-release treatment requirements included in the court’s order of commitment did not negate defendant’s right to have the proceedings against him dismissed when the court received the DMH’s certification of defendant’s successful completion of the drug treatment program.

A final note. It is unlikely that this case would have reached us in its present posture if the trial court’s order had specifically informed DMH personnel of the exact professional conclusions or findings which would constitute a certification that defendant had successfully completed the drug abuse treatment program within the meaning of section 9 of the DDAA. This would likewise have specifically advised defendant of the type and format of certification which would result in his release from supervision. Clear communication and close cooperation between all parties involved is essential in order to fully effectuate the rehabilitative purposes of the DDAA and to prevent defendants committed for treatment under the Act from becoming the innocent victims of murky imprecision or bureaucratic misunderstanding.

Reversed.

GREEN, P. J., and WEBBER, J., concur.