author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERCY BAKER, Defendant-Appellant.
    Second District
    No. 81—937
    Opinion filed April 25, 1983.

      G. Joseph Weller and Michael F. Braun, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of Elgin, and John X. Breslin and Gary G. Gnidovec, both of State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
   JUSTICE HOPF

delivered the opinion of the court:

An Ogle County jury found defendant, Percy Baker, guilty of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)), on October 13, 1981; the circuit court sentenced him to a 14-year extended-term sentence in the Department of Corrections. On appeal, defendant raises the following issues: (1) Whether the trial court erred in admitting evidence insinuating defendant was involved in other crimes; (2) whether the trial court erred in sentencing defendant to an extended term based upon a prior conviction where the record does not indicate whether that conviction was the result of a trial or a guilty plea, and; (3) whether the trial court abused its discretion in imposing the maximum extended-term sentence. We note that no post-trial motion appears in the record.

Defendant’s burglary conviction arose from the burglary of the Travis’ residence. The evidence adduced at trial, circumstantial in nature, established that on July 9, 1981, Mr. and Mrs. Travis returned home at 4:30 p.m. Mr. Travis went to the door of his house and discovered it to be unlocked. He entered the home, set his lunch bucket in the kitchen, and went back outside to commence work on certain chores. He saw a black man walking down the road coming from a bridge east of their hog house. He found the presence of a black man unusual, but could not identify defendant at trial as this man. Mr. Travis then returned inside. In the bedroom he discovered that his wife’s “owl” bank had been cracked open and half-dollars were scattered on the bedroom floor; nothing else appeared to have been disturbed. He also found a pamphlet on the floor which gave instructions on the use of a specific cleaning product.

Meanwhile, Mrs. Travis had commenced her outdoor chores without entering the house. A black man approached her, identified at trial as defendant, carrying a spray bottle and a blue portfolio, who attempted to sell a cleaning product to her. She went inside to ask her husband about the purchase and discovered the half-dollars on the bedroom floor and the pamphlet which she had never seen before. Ed Travis, their son, testified that although no evidence of damage to any windows or doors existed, he discovered his key ring missing containing a key to the house which he had left outside in his truck.

Deputy Darrell Cash of the sheriff’s office arrived at the Travis’ residence. Cash looked at the pamphlet identifying Austin Distributor as the product’s distributor. He testified at trial, over defendant’s relevancy objection, that the sheriff’s office had been receiving complaints about salesmen selling this product. He spoke to Michael Eagle, defendant’s supervisor, who gave an address for Austin Distributors, which corresponded to the one written on the pamphlet. He went to that address and found an abandoned building. Again, testifying over defendant’s relevancy objection, the witness stated that he attempted to contact Mr. Eagle by phone with no avail.

Meanwhile, defendant, accompanied by six other sales people, went to the Dairy Freeze Too restaurant at around 5:30 p.m. He asked Jackie Jergens, an employee, to exchange half-dollars for paper money but Miss Jergen’s supervisor would not allow it. Deputy Cash and Sergeant Tom Miller arrived at the restaurant. Cash told defendant he wanted to talk about a burglary, and defendant denied any involvement. Cash patted down defendant and discovered and confiscated a pocket knife from defendant’s back pocket identified at trial as belonging to the Travis’ son. Defendant then ran back to the restaurant and into the bathroom. The police followed him, prevented him from closing the bathroom door, and then heard noises sounding like objects hitting the floor. Overcoming defendant’s resistance, the police found a gold diamond ring, a watch, a chain, and another ring on the bathroom floor, identified at trial as items taken from the Travis family. At the restaurant, Cash talked to Mr. Eagle who opened defendant’s portfolio, seen earlier by Mrs. Travis when defendant approached her, and found 29 half-dollars and paper currency amounting to $60.

Defendant testified, denying that he burglarized the Travis home, explaining that a group of salesmen were in the general area, and asserting that he gave Mrs. Travis the pamphlet when he attempted to sell the product to her. He stated that another salesman, name unknown, gave him the pocket knife that day and that he went to the bathroom to flush marijuana down the toilet. He explained his possession of the coins by stating that he had sold a gold cross to a man driving down the road earlier that morning and that this man paid him with around $40 worth of loose change. During cross-examination, defendant testified he had worked two days for Austin Distributors.

During closing argument, defense counsel stated:

“He [defendant] might be guilty of working for a pretty shaky company that had a lot of shaky people working for it, but he’s not charged with that.
I don’t think you should find him guilty because he did work for a shaky company which obviously was a shaky company, obviously shaky people working for them.”

In rebuttal, the State said:

“Defense counsel calls this alleged company a shaky company. I think he’s doing kind of a service to a business that comes out with a pamphlet, takes six or seven people who are going to solicit for this cleaning liquid and within two or three months later, it’s non-existent. Not only were these young people out in some remote part of the country where there are only a few houses to do a business, this business of cleaning, it’s in the business of cleaning out the houses in Ogle County. That’s the business they’re engaged in.”

Defendant did not object to this statement at trial.

At the sentencing hearing neither the State nor defendant offered any evidence in aggravation or mitigation. The presentence report revealed that defendant had spent most of his adolescent and young adult life in State-operated facilities and that he had an explosive personality. The report set forth defendant’s history of delinquency, which included numerous convictions for various offenses including shoplifting, burglary, theft, retail theft and armed robbery. Following arguments by counsel, the court sentenced defendant to a maximum extended term of 14 years in the Department of Corrections.

Defendant first contends the trial court erred in admitting into evidence what he characterizes as improper evidence of other crimes. (See People v. Rodriguez (1982), 107 Ill. App. 3d 43, 437 N.E.2d 441; People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104; People v. Gugliotta (1980), 81 Ill. App. 3d 362, 401 N.E.2d 262.) The evidence complained of consists of the testimony of Deputy Cash, in which the deputy related his endeavors to obtain information about Mr. Eagle and Austin Distributing Company, as well as the subsequent discovery that no such company existed. In addition, defendant complains of the prosecutor’s remarks during closing argument that the business which employed defendant was “in the business of cleaning out the houses in Ogle County.” Defendant contends this testimony and argument improperly implied that defendant was involved in a company engaged in fraudulent sales and utilized as a “front” for a burglary ring.

We note that although defendant objected at trial to Deputy Cash’s testimony on the basis of relevancy and lack of an adequate foundation, no specific objection was made that this testimony constituted inadmissible evidence of other crimes. A specific objection to evidence operates as a waiver of all grounds not specified in the objection. (People v. Williams (1981), 96 Ill. App. 3d 8, 420 N.E.2d 710.) Further, defendant failed to object to the State’s rebuttal argument, nor did he file a post-trial motion alleging as error the ground now urged on appeal. It is well established that in order to preserve an error for review, counsel must object to the alleged error at trial. (People v. Beasley (1982), 109 Ill. App. 3d 446, 449, 440 N.E.2d 961; People v. O’Malley (1982), 108 Ill. App. 3d 823, 828, 439 N.E.2d 998.) Further, even where a defendant makes an objection at trial, he nevertheless must file a post-trial motion to preserve the error for this court’s review. (People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248; People v. Jackson (1981), 84 Ill. 2d 350, 359, 418 N.E.2d 739.) Although the plain-error doctrine (87 Ill. 2d R. 615(a)) allows a reviewing court to review error not otherwise properly preserved, it does not mandate this court to consider all errors involving substantial rights. (84 Ill. 2d 350, 359, 418 N.E.2d 739.) The doctrine may be invoked where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial. People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091; People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233.

For the following reasons we do not believe the plain-error rule is implicated in this case. The evidence against defendant was not closely balanced. In this regard, we note that defendant has not challenged the sufficiency of the evidence against him. Further, any error in the admission of Deputy Cash’s testimony and the State’s rebuttal argument was not of such a magnitude as to deny defendant a fair trial. The challenged testimony in the instant case does not directly implicate the defendant in the commission of other crimes. At most, it leads to the inference that defendant may have been involved on a short-term basis with an illegitimate company. Where evidence admitted at trial does not directly establish the existence of another crime but only leads to the inference that a defendant may have committed another crime, a reviewing court needs to determine whether the probative value of the evidence sufficiently outweighs its prejudicial impact. (People v. Allen (1981), 96 Ill. App. 3d 871, 879, 422 N.E.2d 100; People v. Price (1979), 76 Ill. App. 3d 613, 633, 394 N.E.2d 1256; People v. Coleman (1974), 17 Ill. App. 3d 421, 431, 308 N.E.2d 364.) While we believe the challenged testimony lacked probative value, we also believe its admission had little prejudicial impact in this case. The testimony did not detail what precise criminal activity was involved, what the offense may have been, or on what basis the defendant was suspected of committing another crime. (See People v. Allen; People v. Price.) With respect to the State’s rebuttal argument, we do not believe that the comments, although improper, constituted a material factor in defendant’s conviction since the record as a whole overwhelmingly supports the conviction. People v. Post (1982), 109 Ill. App. 3d 482, 488, 440 N.E.2d 631; People v. Davis (1982), 104 Ill. App. 3d 1027, 1033, 433 N.E.2d 1011; People v. Wallace (1981), 100 Ill. App. 3d 424, 432, 426 N.E.2d 1017.

Defendant’s reliance on People v. Rodriguez (1982), 107 Ill. App. 3d 43, 437 N.E.2d 441, People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104, and People v. Gugliotta (1980), 81 Ill. App. 3d 362, 401 N.E.2d 262, is misplaced. In those cases, the improper evidence admitted was direct evidence of another crime rather than inferential evidence. Where evidence of other crimes is direct, it tends to create a stronger prejudice to the defendant then evidence which is indirect.

Defendant next argues that an extended-term sentence cannot be imposed where the record does not reflect whether the prior conviction resulted from a verdict of guilty or a guilty plea.

Initially, we note that this issue was not brought to the attention of the sentencing court and may be considered waived on appeal. (People v. Gray (1981), 95 Ill. App. 3d 879, 885, 420 N.E.2d 856.) However, we feel compelled to address this argument pursuant to Supreme Court Rule 615(a) (87 Ill. 2d R. 615(a)).

Defendant’s argument derives from the language in section 5 — 5— 3.2(b)(1), which states:

“(b) the following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When 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. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).)

Defendant argues that the word “tried” in the statute requires that both the prior and current convictions be the result of a trial. He therefore concludes that because the record does not indicate that the prior conviction resulted from a trial, this cause must be remanded for a determination of this issue. If it is determined that the conviction was the result of a guilty plea then, he argues, he should be re-sentenced without the imposition of an extended sentence.

The Unified Code of Corrections defines “conviction” as follows:

“Sec. 5 — 1—5. Conviction. ‘Conviction’ means a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-1-5.)

It is clear that under this section, a “conviction” encompasses judgments or sentences entered after a trial by judge or jury or upon a plea of guilty. Although the word “tried” is not specifically defined under the Unified Code of Corrections, the word “trial” is defined in Black’s Law Dictionary as a “judicial examination and determination of issues between parties to an action.” (Black’s Law Dictionary 1348 (5th ed. 1979).) Under this definition, a proceeding in which a defendant’s guilty plea is accepted by the trial court after establishing a factual basis for the plea is a trial. (Accord, People v. Hargraves (1975), 28 Ill. App. 3d 560, 563, 328 N.E.2d 639.) Proof that the General Assembly did not intend to distinguish guilty pleas from verdicts of guilty in the extended-term statute is also found in the extended-term statute itself where it states:

“If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant’s knowledge that a sentence under this Section was a possibility.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(b).)

This provision clearly establishes that a current conviction resulting from a plea of guilty is not exempted from the statute.

We find equally without merit defendant’s interpretation of the rationale for distinguishing between convictions based upon guilty pleas and those based upon verdicts of guilty. He contends that such a distinction finds support in the policies of offering an incentive to defendants to plead guilty and of rewarding defendants who by pleading guilty have acknowledged responsibility for their actions, a significant initial step towards rehabilitation. (See People v. Bodine (1981), 97 Ill. App. 3d 42, 44, 422 N.E.2d 256.) However, it is clear that the purpose behind the extended-term statute is to increase the punishment of defendants who have exhibited recidivism and an unwillingness to rehabilitate themselves. People v. Robinson (1982), 89 Ill. 2d 469, 476, 433 N.E.2d 674; People v. Hobbs (1981), 86 Ill. 2d 242, 246, 427 N.E.2d 558.

This underlying purpose explains the General Assembly’s use of “and tried” in the challenged statute. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) Charges may be separately brought but tried together or brought together but tried separately. This provision precludes a trial court from increasing a sentence where the charges are not separately brought, not separately tried or arise out of the same set of facts. Clearly, under these circumstances, the purpose of punishing recidivism would not be served. Accordingly, we find irrelevant the distinguishing fact that a prior conviction was based upon a guilty plea, rather than a verdict of guilty.

Finally, defendant contends that the imposition of the maximum extended-term sentence was error because the sentencing judge failed to consider the lack of serious physical harm and the absence of compensation to the defendant. He also claims the court improperly considered the defendant’s failure to make a statement to his probation officer relating to his version of the case.

The determination and imposition of a sentence falls within the sound discretion of the trial court which constitutes the better forum for establishing a suitable sentence; hence, a court of review must give great deference to the trial court’s determination and will not disturb it absent an abuse of discretion. People v. La Pointe (1981), 88 Ill. 2d 482, 492-93, 431 N.E.2d 344; People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541.

Section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2) permits a trial judge to sentence a defendant to an extended-term sentence if the judge finds that an aggravating factor specified in section 5 — 5—3.2 of the Code (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2), is present. In the instant case, the court found that defendant’s prior 1980 burglary conviction constituted an aggravating factor warranting an extended-term sentence within the meaning of this section. (See Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(b)(1).) The sentencing court sentenced defendant to 14 years in the Illinois Department of Corrections, the maximum allowed pursuant to this statute. In imposing the sentence, the court stated it considered the evidence received at trial, the presentence report, and the arguments of counsel. In particular, the court noted defendant’s lengthy history of delinquency and criminal activity and concluded that defendant lacked any real potential for rehabilitation.

Defendant’s argument that the sentencing court failed to consider certain mitigating factors is unsupported by the record. Although, the court did not articulate its consideration of these factors on the record, it did clearly state that in reaching a sentencing determination it considered the evidence adduced at trial. The statutory requirement that the trial judge set forth his reasons in the record for a particular sentence (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 4—1(c)) does not obligate the judge to recite and assign a value to each factor relied upon. (People v. Peacock (1982), 109 Ill. App. 3d 684, 688, 440 N.E.2d 1260; People v. Lucien (1982), 109 Ill. App. 3d 412, 420, 440 N.E.2d 899; People v. Wallace (1981), 100 Ill. App. 3d 424, 434-35, 426 N.E.2d 1017; People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) Where a sentencing judge articulates factors in aggravation, as in the instant case, a court of review may assume the trial judge properly considered factors in mitigation. (People v. Bartik (1981), 94 Ill. App. 3d 696, 701, 418 N.E.2d 1108; People v. Padilla (1980), 91 Ill. App. 3d 799, 802, 415 N.E.2d 12.) Furthermore, where mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary. (People v. Fugitt (1980), 87 Ill. App. 3d 1044, 1046, 409 N.E.2d 537.) We note that defendant failed to mention at the sentencing hearing the mitigating factors which he now claims the court failed to consider. He also failed to request an explanation of the factors considered by the trial court when the trial court imposed the sentence. Where a defendant fails to object at trial level to the lack of articulated reasons for the sentence imposed, that issue is waived on appeal. People v. Davis (1982), 93 Ill. 2d 155, 162-63, 442 N.E.2d 855; People v. Surges (1981), 101 Ill. App. 3d 962, 971, 428 N.E.2d 1012; People v. Tyus (1981), 97 Ill. App. 3d 207, 210, 422 N.E.2d 1148; People v. Williams (1981), 96 Ill. App. 3d 958, 965, 422 N.E.2d 199.

We also find no merit in defendant’s contention that the sentencing court improperly considered his failure to make a statement to the probation officer. While consideration of this fact in reaching a sentencing determination could possibly be error, there is no indication in the record that such an error occurred here. The court’s conclusion that defendant was an unlikely candidate for rehabilitation was based not upon his failure to make a statement, but upon his extensive criminal history. Generally, a sentence which is within the statutory limits is not excessive. (People v. Edmondson (1982), 106 Ill. App. 3d 716, 726, 435 N.E.2d 870.) Under the circumstances of this case, we find no abuse of discretion in the sentencing court’s imposition of the maximum extended term. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Accordingly, the judgment of the circuit court of Ogle County is in all respects affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA TALACH et al., Defendants-Appellants.
    Second District
    Nos. 82—9, 82—10 cons.
    Opinion filed April 25, 1983.

      Lawrence Wolf Levin and Steven R. Decker, both of Chicago, for appellants. .
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendants Linda and Milton Talach were found guilty in a jury trial of retail theft not exceeding $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 3). Subsequently, Linda Talach was sentenced to one year probation, the last 30 days to be served in the county jail, and a $500 fine, and Milton Talach was sentenced to one year probation, 180 days’ imprisonment as a condition of probation, and a $500 fine. Both defendants appeal and raise the following issues for our review: (1) whether the trial court abused its discretion by striking defendants’ motions for a new trial and arrest of judgment not filed within 30 days of the judgments entered on the verdicts; (2) whether the trial court erred in denying defendants’ motion to suppress evidence; (3) whether the defendants were proved guilty beyond a reasonable doubt; (4) whether the trial court erred in admitting evidence at trial unrelated to the crime charged; and (5) whether the trial court erred in the sentencing hearing and abused its discretion in imposing sentence.

Prior to trial, the defendants filed motions to suppress evidence and to quash their arrests. Milton Talach testified at a hearing on these motions that at approximately 1:30 p.m. on December 4, 1980, he was driving with his wife in his 1979 blue and white Chevrolet Blazer. He was stopped by police officers, though he was not breaking any law. While he and his wife were standing by a police squad car, five to 10 feet behind the Blazer, an Officer Baker opened the back door of the Blazer without his permission. He said that his wife did not help Officer Baker open the door to the Blazer. He and his wife were then arrested, the Blazer was towed away, and some grocery items of theirs were taken.

Officer Douglas W. Baker of the Wheaton police department testified that he arrived at the scene in response to a radio call. Officers from the village of Carol Stream had already stopped a vehicle which had been described in a radio dispatch as one used in a retail theft. He had been previously told that a man and a woman driving in a blue and white Blazer with a certain license number were wanted in connection with the theft of nine jars of Taster’s Choice coffee. He saw the defendants standing behind a blue and white Blazer. The license number of the Blazer matched the one he had received. He looked through the back window of the Blazer and saw several shopping bags with the tops of what he believed to be coffee jars sticking out.

He then placed the defendants under arrest and gave them their Miranda warnings. Upon questioning the defendants he determined that they were husband and wife and that the Blazer was registered to Milton Talach who refused to give Officer Baker permission to search the Blazer. Linda Talach told Officer Baker that she did not care whether he searched the vehicle. He looked at the “materials” in the Blazer. He then placed the defendants in his vehicle and had the Blazer towed because it was in a no parking zone. Approximately 15 or 20 minutes later he conducted an inventory search of the Blazer at the police station. He took the property, which was supposedly stolen from a Jewel store, and placed it in the police inventory.

The trial court denied both motions finding that the police officers had the right to make a stop given the information that there had been a crime and the description of the vehicle and its occupants; that there was sufficient evidence to form a reasonable basis for the officers to believe that the crime was committed by the defendants; that Linda Talach did not have the authority to consent to a search of the vehicle; and that based on all this information and what Baker saw through the window he was justified in searching the Blazer.

The day of the trial, on defendants’ motion, the trial court limited the State to introducing nine jars of Taster’s Choice coffee, the amount alleged in the complaint, out of the total number of items seized from the Blazer, which included seven shopping bags containing another 103 jars of Taster’s Choice coffee, three shopping bags containing 119 jars of Pacific Pearl Snowcrab and an unstated number of shopping bags containing 43 cans of Pillar Rock Fancy Red Salmon and 20 cans of Bumble Bee Red Salmon. All the items had Jewel store labels on them.

The court later modified this ruling, on the State’s motion, to allow the State to introduce one shopping bag containing 16 jars of Taster’s Choice coffee to show the way they were packed.

At trial, Mary Havarilla, a Jewel Food Store security guard, testified that at approximately 1 p.m. on December 4, 1980, she observed the defendants, with whom she had previously been acquainted, enter the Main Street Jewel Food Store in Wheaton, take a grocery cart, and proceed directly to the coffee aisle. She spoke to the store manager, Barry Eisfeldt, who went to the far end of the coffee aisle. Havarilla stood in the same aisle as the defendants, approximately eight to 10 feet away. She watched them stop opposite the shelf where Taster’s Choice coffee was displayed. They stood at opposite ends of the shopping cart. Milton Talach took nine jars of Taster’s Choice coffee with red labels off the shelf and placed them in the cart. Linda Talach then placed the jars in a brown plastic travel bag which was sitting in the cart. There may have been one or two items in the cart at that time but she did not recall. Linda Talach then zipped up the bag, put it on her shoulder, and walked out of the aisle and directly out the front door of the store without passing through the check-out line.

Less than a minute later Milton Talach left the aisle. As he walked up the aisle, Havarilla, who was then at the end of the aisle, moved over into the next aisle. He passed her at a distance of eight feet. He went to the check-out line and stood there for a second or two. She did not recall if there were any items in the cart at this time. He then left the cart and walked out of the store without going through the check-out lines.

After Milton Talach left the coffee aisle but before he left the store, Havarilla observed, through the front window of the store, Linda Talach get into the passenger side of a blue and white Blazer. She said that Milton Talach left the store approximately 30 seconds after Linda Talach did. Havarilla and Eisfeldt followed Milton Talach out the front door. Milton got into the Blazer. Havarilla went to the passenger side and displayed her badge. Eisfeldt stood behind the Blazer. The Blazer was backed up quickly. Eisfeldt jumped out of the way. The Blazer was backed all the way out of the street and then driven away quickly. She saw that the Blazer had an Illinois license plate, number SMR 167.

She identified two brown plastic travel bags, which had been seized by Officer Baker from defendants’ Blazer, as similar to the one Linda Talach carried out of the store.

Havarilla admitted that her written report of the incident did not indicate the color, brand or number of the items taken. She testified that, under store policy, she is to stop suspected shoplifters after they leave the store unless they pass through the check-out line and pay for some items, but not others, in which case she is to stop them after they pass through the check-out and before they leave the store.

Barry Eisfeldt’s testimony was substantially the same as Havarilla’s. Although he testified that Havarilla was at the far end of the aisle when he observed Milton Talach taking the jars off the shelf, he did not see her there while the defendants were taking the coffee even though he could see past them. On direct examination he testified that Milton Talach took the jars off the shelf and placed them in the travel bag himself; but on cross-examination he explained that Linda Talach helped him place them in the bag. He saw Linda Talach go to the beverage aisle before leaving the store. He thought there were some items left in the cart after Milton left the coffee aisle, but he could not remember what they were.

Eisfeldt identified the label on one of the jars of coffee in the shopping bag, which had been admitted into evidence, as a distinctive type of label used only by Jewel stores. He said that it was impossible to tell from which Jewel store the items came. Defense counsel showed him a jar from the shopping bag which had the green label of Taster’s Choice decaffeinated coffee on it. He said that he did not see the defendants take any jars of decaffeinated coffee.

Officer Baker’s trial testimony was similar to his testimony at the suppression hearing. He identified the shopping bag and two brown plastic travel bags as the ones which he. had .found in the Blazer.

The trial court admitted into evidence the two travel bags and the shopping bag with 16 Taster’s Choice jars over the defendants’ objections.

The defendants rested without putting on any testimony.

The first issue presented is whether the trial court properly struck the defendants’ motions for new trial and arrest of judgment which were filed on November 30, 1981. Judgment on the verdicts had been entered on October 6, 1981. In striking the post-trial motions, the trial court stated it had no authority to extend the time for filing such post-trial motions beyond the 30 days following the entry of a verdict as provided in sections 116 — 1 and 116 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 116 — 1, 116-2).

Sections 116 — 1 and 116 — 2 provide for a fair and orderly procedure by which post-trial motions in criminal cases must be filed in the trial court within 30 days following the entry of a finding or the return of a verdict. (People v. Sweeny (1978), 57 Ill. App. 3d 879, 884-85, 373 N.E.2d 663.) Although it has been held that the limitation as to time is mandatory (People v. Anderson (1978), 65 Ill. App. 3d 783, 789, 382 N.E.2d 866; People v. Dzielski (1970), 130 Ill. App. 2d 581, 586, 264 N.E.2d 426), and that such motions not timely filed are properly denied (People v. Gray (1981), 96 Ill. App. 3d 757, 762, 422 N.E.2d 45; cf. People v. Colletti (1971), 48 Ill. 2d 135, 137, 268 N.E.2d 397), the time limitation applies to the defendant. The trial court still retains jurisdiction after 30 days from the entry of the verdict because the final judgment in a criminal case is the pronouncement of sentence. People v. Allen (1978), 71 Ill. 2d 378, 381, 375 N.E.2d 1283.

Thus, there is no jurisdictional bar to a trial court entertaining a post-trial motion not timely filed within 30 days as prescribed in sections 116 — 1 and 116 — 2, but prior to imposition of sentence. Here, defendants’ post-trial motions were filed prior to the sentencing hearing and pronouncement of sentence and the record reveals there may be some basis for confusion on the part of the defendants’ counsel because the trial court stated defendants could present motions on the same date as the sentencing hearing. Under these circumstances, we choose to address the issues raised in the post-trial motions which are presented to us on appeal. See People v. Walsh (1981), 101 Ill. App. 3d 1146, 1149, 428 N.E.2d 937; People v. Velillari (1980), 84 Ill. App. 3d 333, 340, 405 N.E.2d 466; People v. Sweeny (1978), 57 Ill. App. 3d 879, 885, 373 N.E.2d 663.

Next, the defendants maintain that the two warrantless searches of the Blazer, one at the site of the stop and the other at the Wheaton police station 15 minutes later, were improper since they were not incident to defendants’ arrests, no exigent circumstances existed, and defendants had not given their consent.

Although defendants filed a motion to quash the arrest and a motion to suppress evidence in the court below, they have not specifically raised as error on appeal the trial court’s ruling on probable cause to arrest the defendants. Nonetheless, it is clear that the arrests were made upon probable cause to believe defendants had committed an offense. (See Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c).) Officer Baker had received a radio communication that a man and a woman were wanted for retail theft; he had been given a description of the vehicle and the license plate numbers both of which matched that of the Blazer; and he had been informed that nine jars of Taster’s Choice coffee had been taken from a Jewel store in Wheaton. Before placing the defendants under arrest, Officer Baker, while standing outside the vehicle, observed shopping bags lined up in the back of the vehicle and inside the shopping bags he saw tops of coffee jars. Probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense. (People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228.) Clearly, under the circumstances present here, Officer Baker had probable cause to believe defendants had committed a crime. People v. Lippert (1982), 89 Ill. 2d 171, 180-81, 432 N.E.2d 605.

Following the arrests of the defendants at the site where the Blazer was stopped, the officers were entitled to conduct a warrant-less search of the vehicle under the “automobile exception” to the fourth amendment warrant requirement as there was probable cause to believe that it contained stolen articles that the officers could lawfully seize. (Chambers v. Maroney (1970), 399 U.S. 42, 48, 26 L. Ed. 2d 419, 426, 90 S. Ct. 1975, 1979; see People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869.) Thus, the search and examination of the grocery bags in the Blazer at the scene was proper. The circumstances present here provided not only probable cause to arrest, but also probable cause to seize the incriminating items in the vehicle without a warrant. (Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42.) The fact that the officers delayed for 15 minutes a more complete search and the eventual seizure of the items until the vehicle was safety at the station did not diminish the justification and right to search the vehicle. (Colorado v. Bannister; Texas v. White (1975), 423 U.S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304; Chambers v. Maroney; People v. Beil (1982), 110 Ill. App. 3d 291, 293-94, 442 N.E.2d 291.) Since we affirm the trial court’s denial of the motion to suppress evidence on the basis of the “automobile exception” to the warrant requirement, we need not discuss the State’s alternative bases, of search incident to arrest and inventory search, for upholding the trial court’s decision.

The defendants also maintain that the State’s evidence was not sufficient to prove them guilty beyond a reasonable doubt. More specifically, they contend that the testimony of the two eyewitnesses to the theft, Mary Havarilla and Barry Eisfeldt, was conflicting and contradictory regarding which defendant actually placed the coffee jars in Linda Talach’s shoulder bag, the time sequence and route by which the defendants left the Jewel store, and what other items were in the shopping cart. They further contend the State failed to prove that the coffee jars later recovered from the defendants were the items removed from the Jewel store in question. These arguments are merit-less.

From our review of the record, we conclude that Havarilla and Eisfeldt agree, in detail, on all the relevant occurrences at the store. Both witnesses observed Milton Talach take the coffee jars off the shelf, both witnesses testified Linda Talach put them in the shoulder bag although Eisfeldt stated Linda Talach helped Milton Talach put them in the bag, both witnesses observed the defendants leave the store without paying for the items, and both witnesses testified that when they approached the Blazer parked outside the store which the defendants entered, Havarilla displayed her badge and the defendants hurridly left the scene. Any discrepancies between the testimony of Havarilla and Eisfeldt were minor and not material. Minor inconsistencies in the testimony of the State’s witnesses do not destroy the credibility of these witnesses, and any variations in testimony were for the trier of fact to weigh. (People v. Jordan (1967), 38 Ill. 2d 83, 87-88, 230 N.E.2d 161; People v. Rodgers (1978), 58 Ill. App. 3d 719, 722, 374 N.E.2d 721.) A jury’s verdict of guilty will not be disturbed unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendants’ guilt. (People v. Lewis (1981), 88 Ill. 2d 129, 151, 430 N.E.2d 1346.) In our judgment, the evidence of guilt here, if believed by the jury, was ample. The fact that the State’s witnesses could not positively state that nine of the jars of Taster’s Choice coffee which bore Jewel price markings found in the Blazer came from the Jewel store in question is not fatal to the State’s case. In cases where the sufficiency of the identification of stolen property is an issue, the trier of fact makes the ultimate determination of weight and credibility. (People v. Weaver (1959), 18 Ill. 2d 108, 113, 163 N.E.2d 483; People v. Mertens (1979), 77 Ill. App. 3d 791, 796-97, 396 N.E.2d 595.) Some property is of such a character that it cannot be positively identified, and courts have found it sufficient where the owner testified that the articles found in possession of a defendant are identical to those stolen, even though he could not positively say that they are in fact the property of the person from whom they were taken. (People v. Mertens.) The evidence in this case establishes the guilt on all elements of the offense of both defendants beyond a reasonable doubt.

Defendants contend that the trial court erred when it allowed into evidence a total of 16 jars of Taster’s Choice coffee, all contained in the same shopping bag found in the Blazer, where the State’s complaint charged and its evidence showed only nine jars of Taster’s Choice coffee were taken. The defendants do not claim the extra seven jars of coffee which also bore Jewel markings were evidence of or inferred commission of collateral crimes (see, e.g., People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238), but instead argue that this evidence was irrelevant and “confused the jury and prevented it from fairly assessing the facts presented to it, and sufficiently prejudiced the defendants in the jury’s eyes to warrant a new trial.”

We observe that on the defendants’ pretrial motion the trial court prevented the State from introducing evidence of numerous other shopping bags, found in the Blazer, containing other grocery items, i.e., other glass jars of Taster’s Choice coffee and many cans of crab and salmon, all with Jewel labels. This ruling effectively prevented the State from using that evidence, possibly evidence of other crimes, to demonstrate knowledge, intent, motive, design, plan, or identification relating to the crime charged. (See People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238.) Nevertheless, the trial court did allow admission of the seven other jars of Taster’s Choice coffee because they were contained in the same shopping bag as the nine alleged to have been stolen and showed how the 16 jars were all packaged together.

Defendants agree that the admission of evidence is a matter largely within the discretion of the trial court, and its decision should not be reversed unless such discretion is abused and prejudice to the defendant results. (People v. Franklin (1981), 93 Ill. App. 3d 986, 993, 418 N.E.2d 155; People v. Ford (1980), 83 Ill. App. 3d 57, 67, 403 N.E.2d 512.) Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Monroe (1977), 66 Ill. 2d 317, 322, 362 N.E.2d 295.) The manner in which all 16 jars of coffee were neatly stacked together in one shopping bag in the Blazer may tend to show a knowing theft rather than an inadvertent taking without paying. It would also show a transfer of the nine jars of coffee from Linda Talach’s shoulder bag to a shopping bag, perhaps as a method of concealment of the crime by commingling with other jars of coffee. In view of all the factual circumstances in the record and the ruling preventing admission into evidence of all the other bags of items found in the Blazer, we find no abuse of discretion in the ruling allowing seven other jars of coffee contained in the same shopping bag into evidence. Defendants have neither claimed this was evidence of other crimes, nor articulated any specific prejudice. See People v. Houck (1977), 50 Ill. App. 3d 274, 287, 365 N.E.2d 576.

Finally, defendants contend the trial court abused its sentencing discretion when it imposed jail sentences on both defendants as a condition of probation rather than granting probation without such a condition. They also maintain the trial court committed error at the sentencing hearing by not affording both defendants an opportunity to make a statement in their own behalf, by failing to consider certain statutory factors in mitigation of a sentence of imprisonment, and by considering Milton Talach’s six previous supervision dispositions.

Section 5 — 4—1(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(a)(5)) provides that at the sentencing hearing the trial court shall “afford the defendant the opportunity to make a statement in his own behalf.” However, where counsel has spoken for defendant at the sentencing hearing and defendant has not requested an opportunity to speak, the failure of the trial court to offer defendant a right of allocution is a formal, but not reversible error. (People v. Hobbs (1981), 86 Ill. 2d 242, 244, 427 N.E.2d 558; People v. Yettke (1981), 95 Ill. App. 3d 365, 370-71, 420 N.E.2d 194; People v. Miller (1979), 72 Ill. App. 3d 416, 419-20, 390 N.E.2d 971.) Moreover, at the mitigation stage of the proceeding, the record indicates that the trial court generally asked if there was anything further from either side. Accordingly, we find no reversible error.

Defendants also contend that the record does not indicate that the trial court, in pronouncing sentence, considered any of the factors in mitigation of a sentence of imprisonment listed in section 5 — 5—3.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.1). The trial judge need not recite, and assign a value to, each fact presented in evidence at the sentencing hearing (People v. Meeks (1980), 81 Ill. 2d 524, 534, 411 N.E.2d 9), and only substantial compliance with section 5 — 6—1 (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1) is required when refusing to sentence a defendant to probation or conditional discharge. (People v. Kuesis (1980), 83 Ill. 2d 402, 409-10, 415 N.E.2d 323.) Where defense counsel argues factors in mitigation, we must assume the trial judge gave consideration to them in imposing sentence. (People v. Bruno (1979), 68 Ill. App. 3d 768, 775, 386 N.E.2d 550.) Defendants have made no affirmative showing that the trial court failed to consider factors in mitigation of sentence. (See People v. Stephens (1980), 83 Ill. App. 3d 199, 202, 403 N.E.2d 794.) The record reveals that the trial court read the presentence report extensively, entertained arguments by counsel, and stated the reasons for his imposition of sentence. We find no error.

Lastly, defendant Milton Talach maintains that the trial judge when pronouncing sentence indicated that he considered at least 10 previous arrests which, the defendant argues, was error since six of the arrests resulted in dispositions of supervision. The presentence report reveals that Milton Talach was arrested 10 times from 1975 through January 1980 and was given supervision on six occasions and placed on probation or conditional discharge and fined on the other four arrests. None of these were mere arrests, and five of the six supervision dispositions were imposed subsequent to two prior convictions which resulted in sentences of one year conditional discharge and two years’ probation. Defendant cites People v. Calvert (1981), 100 Ill. App. 3d 510, 426 N.E.2d 1218, as authority that a trial judge may not consider, in sentencing a defendant, a prior arrest which resulted in a disposition of supervision which was successfully completed.

The Appellate Court, Fourth District, held in People v. Calvert that a trial court not properly consider, in sentencing a defendant, a finding of guilt on an earlier charge where the defendant had been given a disposition of supervision and had successfully completed the supervision. (100 Ill. App. 3d 510, 511, 426 N.E.2d 1218.) The court relied on an Illinois statute which provides, inter alia, that “[discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f).) Additionally, the court cited People v. Wunnenberg (1981), 85 Ill. 2d 188, 421 N.E.2d 905, in which our supreme court held that a set-aside prior conviction of probation under the Federal Youth Corrections Act (18 U.S.C. sec. 5005 et seq. (1964)) could not be considered as an aggravating factor in a State sentencing hearing.

We disagree with the holding in Calvert and decline to follow it for the following reasons. A close reading of the supreme court’s opinion in People v. Wunnenberg, cited by the appellate court in Calvert, reveals that its holding was based upon a review of cases and the underlying purpose of the Federal Youth Corrections Act that a set-aside conviction under that Act should not have subsequent repercussions, either of a criminal or noncriminal nature, for a youthful offender. (85 Ill. 2d 188, 194-95, 421 N.E.2d 905.) Thus, the narrow issue decided in Wunnenberg was whether the trial court properly considered the defendant’s prior conviction under the Federal Youth Corrections Act as an aggravating factor in sentencing when the prior conviction had been set aside. We do not read the relevant Illinois statutes as prohibiting under the facts present in this case the consideration in a sentencing hearing of a prior disposition of supervision successfully completed.

Two Illinois statutes are pertinent to the issue here. Section 5— 6 — 3.1(f) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f)) states:

“Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime. Two years after the discharge and dismissal under this Section a person may have his record of arrest expunged as may be provided by law. However, any defendant placed on supervision before January 1, 1980, may move for expungement of his arrest record, as provided by law, at any time after discharge and dismissal under this Section.”

The expungement provision referred to in section 5 — 6—3.1(f) is contained in section 5 of “An Act in relation to criminal identification and investigation” (Ill. Rev. Stat. 1979, ch. 38, par. 206 — 5), and the portion thereof pertinent to the issue involved here is as follows:

“All photographs, finger prints or other records of identification so taken shall, upon the acquittal of a person charged with the crime, or, upon his being released without being convicted, be returned to him. Whenever a person, not having previously-been convicted of any criminal offense or municipal ordinance violation, charged with a violation of a municipal ordinance or a felony or misdemeanor, is acquitted or released without being convicted, the Chief Judge of the circuit wherein the charge was brought, or any judge of that circuit designated by the Chief Judge, may upon verified petition of the defendant order the record of arrest and the records of the circuit court relating to such arrest expunged from the official records of the arresting authority and the records of the clerk of the circuit court.”

It is clear under section 5 that expungement of records of the circuit court relating to an arrest which does not result in a conviction as in the case of a disposition of supervision successfully completed is not automatic, but is initiated by verified petition and may be granted in the discretion of the judge. (Ill. Rev. Stat. 1979, ch. 38, par. 206 — 5; see Young v. Keefe (1978), 64 Ill. App. 3d 824, 381 N.E.2d 1047.) In the instant case, the presentence report does not indicate that any of the supervision dispositions have been expunged as prescribed by statute, nor does the defendant so argue. More importantly, however, the defendant here is not eligible to have his record of six dispositions of supervision expunged even if successfully completed, since he was convicted of a misdemeanor offense for which he received a sentence of one year conditional discharge and one day in the House of Corrections prior to five of the supervision dispositions. Section 5 unequivocally limits eligibility for expungement to “a person, not having previously been convicted of any criminal offense or municipal ordinance violation ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 206 — 5.) Since this provision refers to convictions previous to a petition to expunge, the defendant was, therefore, ineligible to have any of his records expunged after his first conviction. See Young v. Keefe.

The important question which remains is whether the provision in section 5 — 6—3.1(f) that “[djischarge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime” itself precludes the trial court’s consideration of the supervision dispositions in the sentencing hearing.

Defendant has not cited us any legislative history for section 5— 6 — 3.1(f) nor any express language therein which evinces a purpose to exclude a supervision disposition from a trial court’s consideration at a sentencing hearing when a defendant has such a supervision disposition which cannot be expunged because of a prior conviction. Unlike the Federal Youth Corrections Act analyzed in People v. Wunnenberg (1981), 85 Ill. 2d 188, 421 N.E.2d 905, section 5 — 6—3.1(f) is not an expungement provision or its equivalent. Expungement is contained in section 5 of “An Act in relation to criminal identification and investigation.” The express benefits bestowed under section 5— 6— 3.1(f) to a person successfully concluding a disposition of supervision are discharge “without adjudication of guilt” and discharge not termed as “a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.” The “disqualifications or disabilities imposed by law upon conviction of a crime” refer to loss of certain rights such as the right to hold public office (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—5), to vote (Ill. Rev. Stat. 1981, ch. 46, par. 3 — 5), to possess a firearm (Ill. Rev. Stat. 1981, ch. 38, par. 24— 3.1), or to practice medicine (Ill. Rev. Stat. 1981, ch. Ill, par. 4433(3)). Further, this court has held that the provisions of section 5— 6 — 3.1(f) did not prevent use of an admission of guilt to driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501), for which the defendant received supervision and where the charge was subsequently dismissed, as an admission in a collateral implied consent hearing. (People v. Powell (1982), 107 Ill. App. 3d 418, 419-20, 437 N.E.2d 1258.) Accordingly, we do not read the aforementioned language in section 5 — 6—3.1(f) so broadly as to prohibit consideration by a trial judge at a sentencing hearing of a disposition of supervision successfully completed.

The fact that a disposition of supervision successfully completed is not an adjudication of guilt also does not render such information at a sentencing hearing improper. In People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344, our supreme court stated:

“Whether a defendant had been prosecuted and convicted for other misconduct, proof of which is offered at a sentencing hearing, is not, in our judgment, controlling as to its admissibility. More important are the questions of relevancy and accuracy of the information submitted. Those questions are, of course, initially determined by the trial judge in the exercise of an informed discretion. Where, as here, that information indicates defendant solicited another to commit criminal offenses, and comes in the form of sworn testimony by the party solicited, presented in open court and subject to cross-examination, its admission by the trial judge is not an abuse of discretion. The conduct testified to was relevant to a determination of a proper sentence in that it bore upon the likelihood or unlikelihood that defendant would commit other offenses; it appeared trustworthy; defendant had the opportunity to face and cross-examine the witness; and the accuracy of the information was not challenged. While trial judges should be cautious in admitting such proof and sensitive to the possibilities of prejudice to defendant if inaccurate information is considered, we believe that a trial judge may, under circumstances such as those here, properly receive proof of criminal conduct for which no prosecution and conviction ensued.” 88 Ill. 2d 482, 498-99, 431 N.E.2d 344.

It is obvious that a previous disposition of supervision may be helpful to a trial judge in determining an appropriate sentence. As this court stated in People v. Berger (1982), 109 Ill. App. 3d 1054, 441 N.E.2d 915, the cases give trial judges wide latitude in receiving evidence relative to sentencing. (109 Ill. App. 3d 1054, 1070, 441 N.E.2d 915.) In the case at hand, the defendant’s prior supervision dispositions along with his four convictions for other misdemeanors were important to the trial judge in imposing an additional jail sentence as a condition of probation, as it appropriately should have. In other cases, a single prior supervision disposition successfully completed may weigh in a defendant’s favor. The important considerations are relevancy and accuracy of the information. We conclude that a disposition of supervision successfully completed but not expunged according to law, is relevant and a proper consideration for the trial judge at a sentencing hearing.

Defendant has not challenged at trial or on appeal the accuracy or authenticity of the supervision dispositions contained in the presentence report or this method of presenting that information to the trial court, and we need not address this procedure. (See People v. Meeks (1980), 81 Ill. 2d 524, 533, 411 N.E.2d 9.) Nonetheless, such information presented in a presentence report appears trustworthy absent any objection by the defendant.

Thus, we conclude that under the facts here the trial court properly considered at the sentencing hearing the defendant’s prior dispositions of supervision successfully completed. While the record reveals that the trial court also mentioned three arrests without disposition, occurring after the crime for which he was convicted, which were included in the pre sentence report, defendant has not specifically raised this in his appeal and this point will not be considered. (See People v. Johnson (1981), 96 Ill. App. 3d 1123, 422 N.E.2d 19.) Considering defendant’s four prior convictions and his numerous opportunities on supervision, we believe the additional arrests were only cumulative and do not affect the sentence imposed.

We have reviewed the record and find that the sentences imposed on both defendants were not an abuse of discretion. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

For the foregoing reasons, the judgments of conviction of the circuit court of Du Page County are affirmed.

Affirmed.

LINDBERG and "VAN DEUSEN, JJ., concur.


author: PRESIDING JUSTICE STOUDER JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD P. MORRISON, Defendant-Appellant.
    Third District
    No. 82—620
    Opinion filed April 29, 1983.
    Rehearing denied June 7, 1983.

      BARRY, J., dissenting.
    Robert Agostinelli and Charles W. Hoffman, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Richard Morrison, was convicted of residential burglary, sentenced to a term of incarceration and ordered to pay restitution. The defendant appeals his conviction, alleging that the State failed to prove the requisite intent. He also argues that the court committed error in denying him court appointed counsel and in ordering restitution. We affirm his conviction, but remand for a new sentencing hearing.

The defendant had in his possession property taken from the apartment leased by Jeffrey Loser. The defendant had lived with Loser in this apartment in 1981, but was not living there at the time of the theft. The defendant testified that he stopped by the apartment and saw a note ordering the tenants to vacate the apartment. He called out for Loser but Loser was not at home. The defendant got a van and returned to the apartment to remove clothing he had left there and some furniture belonging to his brother. As he retrieved his clothing and his brother’s furniture, he also took the property that belonged to Loser.

The defendant argues that the State failed to prove beyond a reasonable doubt that he possessed the requisite intent. In order to sustain a residential burglary conviction, the State must prove that the defendant possessed the intent to commit a theft at the time of his unauthorized entry into the victim’s dwelling. (People v. Vallero (1978), 61 Ill. App. 3d 413, 378 N.E.2d 549.) The defendant contends that the facts of the case demonstrate that it was his intent only to retrieve his clothing and the furniture when he entered Loser’s apartment.

“Where burglary with intent to steal is charged, the alleged intent may be shown by proof that a theft did occur on the premises entered.” (People v. Kerestes (1976), 38 Ill. App. 3d 681, 684, 348 N.E.2d 274, 276.) Whether the requisite intent existed is a question for the trier of fact. (People v. Blair (1971), 1 Ill. App. 3d 6, 272 N.E.2d 404, aff’d (1972), 52 Ill. 2d 371, 288 N.E.2d 443.) The decision of the fact finder will not be overturned on appeal unless the evidence is palpably contrary to the verdict or so unreasonable, improper or unsatisfactory as to create a reasonable doubt of guilt. People v. Zuniga (1981), 99 Ill. App. 3d 396, 425 N.E.2d 1094.

We find sufficient evidence in the instant case to support the defendant’s conviction. The defendant stated at trial that his intent in entering the apartment was to recover property belonging to himself and his brother. However, at the time of his arrest the defendant stated that he went to Loser’s apartment to collect money Loser owed him. The defendant testified also that he had a van and intended to remove his brother’s furniture from the apartment, but at the time of the incident, the defendant was in a body cast as a result of an accident at a railroad crossing. The defendant entered the apartment after determining that Loser was not at home. Finally, the defendant, while wearing articles of Loser’s clothing, met Loser shortly after the burglary, but gave no explanation for his possession of Loser’s clothing and made no offer to return these items.

The defendant’s testimony was implausible and was substantially impeached. It cannot be said that the evidence was so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. His conviction is therefore affirmed.

The defendant alleges as his second issue on appeal that the court erred in denying him appointed counsel. We agree. The State argues that the loan the defendant obtained in order to post bail bond was sufficient to find the defendant not indigent. The loan in question was secured by the defendant’s only asset, a 1973 Ford Mach I. The defendant also had no income at the time of his hearing to determine indigency and was living with relatives.

Where the defendant has some assets or funds available, the determination of indigency is left to the sound discretion of the court. (People v. Wood (1980), 91 Ill. App. 3d 414, 414 N.E.2d 759.) To be considered indigent, a defendant need not be totally devoid of funds, it being sufficient if the defendant lacks the financial resources on a practical basis to retain counsel. (People v. Castile (1979), 71 Ill. App. 3d 728, 390 N.E.2d 426.) In People v. Whitney (1974), 24 Ill. App. 3d 685, 321 N.E.2d 317, discussed by this court in People v. Valdery (1976), 41 Ill. App. 3d 201, 354 N.E.2d 7, the defendant was a student with no source of income and only an old automobile and a small amount of cash as assets. In Whitney this court reversed the defendant’s conviction because of failure to appoint counsel based on the defendant’s financial status. The defendant in the instant case had no source of income and only a 1973 auto for assets.

The question of indigency in a case such as this presents a difficult situation for resolution by a trial court. However, the issue of appointment of counsel must be decided with an eye toward protection of the rights of the accused from any impairment. (People v. Cole (1968), 97 Ill. App. 2d 22, 239 N.E.2d 455.) We find that because the defendant was indigent, it was error for the trial court to deny him appointed counsel. However, the defendant was ably represented at trial by a private attorney. The error by the trial court is therefore irremedial, and the issue of reimbursement is moot.

The defendant also asserts error in the failure of the trial court to determine the defendant’s ability to pay restitution before ordering him to so pay. Section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—6), provides:

“If restitution is part of the disposition, the defendant shall make restitution to the victim in accordance with the following:
(a) A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and conditions of payment at the court’s discretion.”

The decision to hold a separate and distinct sentencing hearing on the issue of restitution is discretionary. (People v. Johnson (1982), 106 Ill. App. 3d 171, 435 N.E.2d 799.) Where a separate hearing is not held, a court must make a finding as to the defendant’s financial status during the formal sentencing hearing. (People v. Johnson (1982), 106 Ill. App. 3d 171, 173, 435 N.E.2d 799, 800.) The record indicates that no finding was made as to the defendant’s financial status during the formal sentencing hearing prior to the decision ordering defendant to pay restitution. That portion of the defendant’s sentence mandating restitution must therefore be vacated and remanded for further proceedings. Should the court, after reconsideration, order that restitution be made by the defendant, the proper method of valuation of the articles stolen and not recovered is the fair market value of the articles at the time of the theft. In re F.D. (1980), 89 Ill. App. 3d 223, 411 N.E.2d 1200.

For the foregoing reasons, we affirm the judgment of conviction and the four-year term of imprisonment entered in the circuit court of Peoria County. We vacate and remand the order of restitution for the court’s reconsideration consistent with the views expressed herein.

Judgment affirmed, sentence affirmed in part, and remanded in part.

SCOTT, J., concurs.

JUSTICE BARRY,

dissenting:

Defendant claims that he is entitled to reimbursement for the cost of retaining private counsel and that the basis for that claim is that he was erroneously held not to be indigent. However, it is undisputed in the record that defendant had title to a car with a bank evaluation of $1,895, and that, using the car as collateral, he was able to obtain a bank loan of $1,500 which he used to post a bail bond. By his own admission, the car and the cash were his own. Defendant has also indicated in the trial court that he had employment beginning four days after the indigency hearing and that he had counsel handling a claim for damages for a permanent disability resulting from being struck by a train. This, therefore, is a case where the defendant admittedly has assets, has no dependents, and has no room-and-board expenses.

The test in such circumstances has been stated as follows:

“[I]n cases where defendant has some assets available and, like defendant here, has some funds *** indigency for such persons becomes a matter of degree within the sound discretion of the trial court. We find no abuse of that discretion here. Defendant could have sold or encumbered his motorcycle.” People v. Maretti (1978), 61 Ill. App. 3d 762, 763, 378 N.E.2d 342, 344.

It has been held, as the majority notes, that a defendant may be found indigent “if [he] lacks the financial resources on a practical basis to retain counsel to represent [him].” (People v. Castile (1979), 71 Ill. App. 3d 728, 730, 390 N.E.2d 426, 427, citing People v. Valdery (1976), 41 Ill. App. 3d 201, 204, 354 N.E.2d 7, 9.) In Valdery, defendant had no other financial resources except the bail bond posted by his relatives, and his relatives refused to permit the bond to be assigned for attorney fees. Consequently, defendant appeared pro se at his jury trial and was convicted of armed robbery. That conviction was reversed upon appeal and remanded with directions to secure additional information as to the defendant’s actual financial status and to appoint counsel if defendant lacked funds to retain an attorney. We were there cognizant of the fact that the trial judge refused to appoint counsel solely because funds were on deposit with the circuit clerk and that the record indicated that those funds were furnished by relatives who refused to allow defendant to use the bail money to hire an attorney. We said:

“We are aware that in many cases the funds deposited for bail are unconditionally the defendant’s for use by him in retaining counsel. Had that been true here, the ruling of the trial court would have been appropriate.” People v. Valdery (1976), 41 Ill. App. 3d 201, 204, 354 N.E.2d 7, 10.

In the case before us, the funds deposited for bail were unconditionally the defendant’s and could be used by him to retain private counsel. In fact, the funds were so used. According to the holding in Valdery, the ruling of the trial court in this case was proper, and I believe well within the discretion of the court.

According to the transcript of the record, the trial judge expressly advised defendant to use an assignment of his bail bond for the purpose of retaining counsel. Thereafter, defendant appeared with retained counsel, and the bail bond assignment was executed as authorized by statute. (See Ill. Rev. Stat. 1981, ch. 38, par. 110 — 7(f).) Clearly, as a practical matter, defendant was not indigent because he did have sufficient financial resources to retain counsel. In my view the trial court did not err in refusing to find indigency under the circumstances, and most certainly no abuse of discretion occurred.

Furthermore, I believe defendant waived this issue by not preserving any objection to the indigency ruling in his post-trial motion. The trial court had no opportunity to consider whether defendant was entitled to reimbursement for his attorney fees, and this court should not permit such a claim for reimbursement to be raised for the first time upon appeal.

I also disagree with the majority as to the question of restitution. According to the record, at the sentencing hearing the court was advised once again that defendant had posted a cash bond which was available for costs, fees, and restitution. Defense counsel also advised the court that defendant had a claim pending for his disabling injury. The majority finds that the trial court erred in not making an express finding as to defendant’s financial status during the sentencing hearing, and relies upon People v. Johnson (1982), 106 Ill. App. 3d 171, 435 N.E.2d 799, as authority. The point in Johnson was that the record must disclose some evidence of factual basis for finding that defendant was financially capable of making restitution. Johnson does not require the recitation of a specific formula, and in fact, in that case we noted that any error would have been harmless if the trial court had inquired into whether the bond money was actually the defendant’s. Under the circumstances of this case, where the trial court knew the bond money belonged to defendant, I believe the court had a factual basis for concluding that defendant was able to pay restitution, and by ordering the restitution to be deducted from the bail bond money, the court indicated its consideration of those facts. Accordingly I would not find error in ordering of restitution here.

Further when the trial court ordered restitution, both the State and defense counsel agreed that the missing property had a value of $203. The items which were missing, according to the victim, were a gold ring, which was about one year old; an electric shaver, which was less than one month old; and three 8-track tapes, about three months old. The difference between market value and replacement cost of these items would be minimal. In the case in In re F.D. (1980), 89 Ill. App. 3d 223, 411 N.E.2d 1200, cited by the majority, the court was concerned with the possibility of imposing upon a defendant the effect of inflation by using replacement cost. Because of the short length time between the purchase of the items and the theft, I see little chance that the $203 amount includes any measurable inflationary factor.

In any event, defendant was admonished twice that he had 30 days to contest or refute the restitution order by filing a motion to reconsider. He did not file any motion or make any objection to the restitution order or to the amount. Hence, I would find no error, or if error did occur, that it was waived.

For the reasons stated, I would affirm the judgment of the trial court.


author: JUSTICE MILLER

text:
    MAXINE MANNING, Mother and Next Friend of Cheryl Manning, a Minor, Plaintiff-Appellee, v. JERRY MEIER, Defendant-Appellant.
    Fourth District
    No. 4—82—0755
    Opinion filed May 17, 1983.

      Phebus, Tummelson, Bryan & Knox, of Urbana, for appellant.
    R.C. Lanto, Jr., of Waaler, Evans, Gordon & Lanto, of Rantoul, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Plaintiff filed a two-count complaint to recover damages for personal injury. The cause was later dismissed by the trial court sua sponte. Plaintiff filed a petition for relief from the judgment pursuant to the provisions of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401 (for purposes of consistency all further references to section 72 will be made instead to section 2 — 1401, regardless of the date of disposition)). As the result of plaintiff’s petition, the trial court allowed reinstatement of the cause. Defendant appeals from the trial court’s decision.

Plaintiff, as next friend for her daughter, Cheryl Manning, brought an action to recover for injuries Cheryl suffered in a motorbike-truck accident. Defendant answered, denying plaintiff’s allegations. Defendant filed a notice of discovery deposition on July 7, 1978. Defendant served plaintiff with interrogatories on February 11, 1980.

The next item appearing in the case record is a letter from Judge Tucker to all attorneys in the case, dismissing the cause for want of prosecution and giving plaintiff 30 days to move to reinstate. The letter is dated February 15, 1980. The docket entry dismissing the case for want of prosecution was not made until December 31, 1980.

On June 3, 1982, plaintiff filed a petition under section 2 — 1401 seeking to have the cause reinstated. In his accompanying affidavit, plaintiff’s attorney recited the procedural history of the case. Depositions had been taken pursuant to the notice mentioned above, but had been lost by the stenographic firm involved in the case. On February 25, 1981, plaintiff’s attorney wrote to defendant’s attorney regarding a retaking of the deposition. Defendant’s attorney replied, on February 27, 1981, in a hand-written note at the bottom of plaintiff’s original letter. Defendant’s attorney indicated he would be available to retake the deposition at any time on 30 days’ notice.

Plaintiff’s counsel further stated that our supreme court’s decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, caused counsel for the parties to discuss the case twice during the summer of 1981. Plaintiff’s counsel then sent another letter to defendant’s attorney on February 15, 1982. Defendant’s attorney, in a letter dated February 16, 1982, replied that his “file was closed” because Judge Tucker had dismissed the case on February 15,1980.

Defendant moved to dismiss plaintiff’s section 2 — 1401 petition on the grounds that it was not filed within two years of the dismissal for want of prosecution and that plaintiff’s petition fails to state a cause of action. A hearing was held on September 21, 1982, and the trial court took the motion under advisement. On September 29, 1982, Judge Tucker denied the motion to dismiss and made the following docket entry:

“Now on this day, ruling on motion to dismiss petition under section [2 — 1401] heretofore taken under advisement. Motion denied on the ground that the docket sheet reflects that the Court has inadvertently contributed to a confused state of the record, by addressing a letter to plaintiff’s attorney, indicating the case had been dismissed for want of prosecution and dated February 15, 1980, while the docket sheet reflects that the dismissal was made on December 31, 1980. Based on that finding, no further action required with regard to section 72 [now section 2 — 1401]. Cause reinstated for trial by jury.”

Defendant raises two issues on appeal: (1) Did plaintiff’s section 2 — 1401 petition state sufficient facts to justify the reinstatement of the cause of action by the trial court; and (2) did the trial court err by failing to allow defendant to file a responsive pleading after the denial of defendant’s motion to dismiss plaintiff’s section 2 — 1401 petition.

Section 2 — 1401(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401(a), formerly Ill. Rev. Stat. 1979, ch. 110, par. 72(1)) provides for relief from final judgments after 30 days from entry of the judgment. The purpose of section 2 — 1401 is to bring facts not of record to the attention of the trial court which, if known by the trial court at the time judgment was entered, would have prevented its rendition. (Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 403 N.E.2d 615; American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 400 N.E.2d 102.) The petition invokes the equitable powers of the court as justice and fairness require and should be considered in the light of equitable principles. Hiram Walker Distributing Co. v. Williams (1981), 99 Ill. App. 3d 878, 426 N.E.2d 8; Czekaj v. Czekaj (1978), 66 Ill. App. 3d 484, 384 N.E.2d 63; Ambassador Insurance Co. v. Wilson (1978), 65 Ill. App. 3d 418, 382 N.E.2d 605.

Generally, in order to obtain relief under section 2 — 1401, petitioner must show that he has a meritorious defense and that he has exercised due diligence. (Halleck v. Trumfio (1980), 85 Ill. App. 3d 1051, 407 N.E.2d 867.) Relief will not be granted pursuant to section 2 — 1401 where the moving party or his counsel has been negligent. (Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015, 410 N.E.2d 1166; Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, 400 N.E.2d 724, rev’d on other grounds (1981), 83 Ill. 2d 559, 416 N.E.2d 252.) Recent cases indicate that these requirements need not always be applied in a strict manner; when justice and fairness require, a judgment may be vacated even though the requirement of due diligence has not been satisfied. Canton; Lutz v. Lutz (1977), 55 Ill. App. 3d 967, 371 N.E.2d 348.

The applicability of section 2 — 1401 to judgments of dismissal for want of prosecution entered either ex parte or on the trial court’s own motion has been the subject of several appellate court cases. In Electrical Wholesalers, Inc. v. Silverstein (1977), 47 Ill. App. 3d 689, 365 N.E.2d 375, plaintiff brought suit against defendant for sums due under a contract. The case was set for trial on October 15, 1973, in a specified courtroom. On October 12, 1973, plaintiff’s attorney asked the clerk assigned to that courtroom about the status of the case. The clerk informed plaintiff’s attorney that the case would be transferred to another courtroom, as provided by a general order of the circuit court of Cook County.

The case was dismissed for want of prosecution in the first courtroom on October 15, 1973. Plaintiff did not receive notice of this dismissal. Periodically, plaintiff’s attorney would check the calendar for the second courtroom. Finally, a search for the court file was instituted and the file was discovered in March of 1974. No entry was found in the file dismissing the case. Plaintiff’s attorney noticed a deposition in April 1974 and was informed by defendant’s attorney that the case had been dismissed on October 15, 1973.

Plaintiff filed a section 2 — 1401 (formerly section 72) petition along with an affidavit. The trial court vacated the dismissal and defendant filed an appeal. The appellate court upheld the vacation of the dismissal. The court held that the section 2 — 1401 relief was proper when a party had been defaulted or had his case dismissed for want of prosecution without notice to him. The court found that the record supported the contention that plaintiff had diligently pursued its rights during the proceedings. See also Prendergast v. South Stickney School District (1972), 9 Ill. App. 3d 335, 292 N.E.2d 161; Carlstedt v. Kaufmann (1970), 119 Ill. App. 2d 322, 256 N.E.2d 146.

This court was confronted with facts similar to those presented to the trial court in Sunderland v. Future Investments, Inc. (1970), 120 Ill. App. 2d 361, 256 N.E.2d 667. In Sunderland, plaintiff filed his complaint on February 21, 1966. Defendants filed their answer on March 23, 1966. On December 29, 1967, plaintiff noticed a deposition. No other action took place until September 12, 1968, when the trial court issued a rule to show cause why the cause should not be dismissed for want of prosecution. Plaintiff did not receive any notice of the issuance or entry of the rule. On November 24, 1968, plaintiff discovered that the cause had been dismissed. Plaintiff filed a section 2— 1401 petition on January 7, 1969. The trial court allowed the petition over defendant’s motion to strike.

This court noted that neither section 2 — 1302 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1302, formerly Ill. Rev. Stat. 1967, ch. 110, par. 50.1) nor the practice rules of the seventh judicial circuit had been followed. Furthermore, defendant had not questioned the sufficiency of the section 2 — 1401 petition in the trial court. The court stated that reinstatement of a cause dismissed for want of prosecution is proper when notice was not given to the party affected. In view of the failure to follow established procedures in a dismissal for want of prosecution, the trial court’s decision to reinstate the cause was not an abuse of discretion.

When a motion to dismiss is filed against a petition for relief under section 2 — 1401, the motion admits all well-pleaded facts and attacks only the legal sufficiency of the petition. (Glenn v. People (1956), 9 Ill. 2d 335, 137 N.E.2d 336; Alexander Lumber Co. v. Bus-boom (1970), 122 Ill. App. 2d 342, 259 N.E.2d 76.) If the allegations presented in the affidavit of plaintiff’s counsel are taken as true and correct, then the trial court’s denial of the motion to dismiss was clearly proper.

Attorney Lanto states in his affidavit that he was unaware of the dismissal of the cause until attorney Tummelson’s letter of February 16, 1982. He further states that he had no reason to be concerned about a dismissal for want of prosecution in view of Rule 12 of the sixth judicial circuit which provides that proceedings may be summarily dismissed where there has been no action of record for two years. The record indicates that defendant noticed a discovery deposition on July 7, 1978, and filed interrogatories on February 6, 1980. Lanto also maintains that defendant’s counsel engaged in communication and negotiation with him regarding the case throughout 1981.

Plaintiffs section 2 — 1401 petition was filed within two years from the date of dismissal of the complaint. The facts presented in Lanto’s affidavit, if taken as true, constitute sufficient grounds to invoke the equitable powers of the court under section 2 — 1401. We find that Sunderland controls and that defendant’s motion to dismiss should have been denied.

Defendant contends, however, assuming the denial of his motion to dismiss was proper, that the trial court erred when it did not allow him to answer plaintiff’s petition and to controvert plaintiff’s allegations.

A petition to vacate a judgment under section 2 — 1401 commences an entirely new proceeding and is not merely a continuation of the original proceeding. The new proceeding is subject to the usual and ordinary rules of civil practice. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253; Resto v. Walker (1978), 66 Ill. App. 3d 733, 383 N.E.2d 1361.) Where a motion to dismiss under section 2 — 1401 is denied, the court should allow the moving party a chance to answer the allegations contained in the petition. (Reuben H. Donnelley Corp. v. Thomas (1979), 79 Ill. App. 3d 726, 398 N.E.2d 972.) If the central facts of the petition are challenged by the defendant, a full and fair evidentiary hearing must be held. (Ostendorf; Mercantile All-In-One Loans, Inc. v. Menna (1978), 63 Ill. App. 3d 931, 380 N.E.2d 944.) However, the central facts of a section 2 — 1401 petition are not those which would establish the' underlying action but are facts sufficient to support the grant of relief under section 2 — 1401. Yorke v. Steineway Drug Co. (1982), 110 Ill. App. 3d 1009, 443 N.E.2d 644.

Under the circumstances here the trial should first have given defendant an opportunity to respond to plaintiff’s 2 — 1401 petition after the denial of defendant’s motion to dismiss the petition. After defendant has responded to the petition, the trial court may then proceed to a disposition of the matter on the merits of the section 2— 1401 petition. Since that matter is not before us, we express no opinion with regard to what that disposition should be.

The judgment of the circuit court of Champaign County is vacated and the cause is remanded for further proceedings consistent with the views expressed in this opinion. Appellee’s motion to strike certain portions of appellant’s reply brief is hereby denied.

Judgment vacated and cause remanded.

WEBBER, P.J., and TRAPP, J., concur.