author: PRESIDING JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL TAGLIA, Defendant-Appellant.
    First District (3rd Division)
    No. 82—5
    Opinion filed March 16, 1983.
    Ackerman & Egan, Ltd., of Chicago (Allan A. Ackerman, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and Stephen Erhard Eberhardt, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant Daniel Taglia was charged with murder and armed violence. A jury found him guilty of both crimes, and the court sentenced him to 25 years. On appeal defendant contends that the trial court erred in denying his motion to suppress evidence; that prejudicial error resulted from the State’s use of a prior inconsistent statement as substantive evidence of guilt absent a proper limiting instruction; and that prosecutorial misconduct so permeated the whole trial that it deprived him of a fair trial.

Three eyewitnesses testified that on the evening of October 29, 1979, they saw defendant shoot and kill Phil Shepherd on a street in Cicero. One of the witnesses was a neighbor who was walking her dog when the shooting occurred. She identified defendant at a lineup and at trial. The other two witnesses were Brian Brusaw and Scott Adams.

Brusaw testified that on the evening in question he and defendant were in a tavern when they were told that the deceased wanted to see Brusaw. After Brusaw gave a gun to defendant, they went outside. Defendant and the deceased started arguing and defendant shot the deceased. The day before, Brusaw and the deceased, using the same gun unsuccessfully tried to rob a man of money and narcotics. The pair also committed a robbery that morning. Brusaw previously had been convicted of burglary, theft and aggravated battery, and was currently serving five years for burglary. In exchange for his testimony, the State had agreed not to oppose a sentence reduction to time considered served. Brusaw had been hospitalized a few times for overdosing on drugs. He lived with defendant’s sister in an apartment building owned by defendant.

Adams testified that he and the deceased were driving around when they saw Brusaw and defendant. When the deceased emerged from the vehicle, he and defendant shouted at each other. Defendant then shot the deceased. Adams had a robbery charge pending against him. He had talked to the prosecutor about the charge, but they made no promise to him.

Defendant testified that he did not know the deceased and had not shot him. That morning, defendant heard the deceased storm out of Brusaw’s apartment shouting threats. Defendant warned his sister and Brusaw that if they were having trouble they should call the police.

Defendant initially contends that the trial court erred in denying his motion to suppress evidence. The following pertinent testimony was adduced at the hearing on the motion.

Officer Leonard Rutka of the Cicero Police Department testified that after he left the scene of the shooting he went to defendant’s apartment. He was invited in by defendant’s 21-year-old daughter Amy. The officer informed Amy that he was investigating a shooting and she replied that she knew what had happened. She told the officer that she lived in the apartment and gave him permission to search the premises. The officer recovered a gun with one spent shell.

Defendant testified that his daughter lived in River Forest and not with him. She kept no clothes or possessions at his apartment and visited him approximately once a month.

Amy Taglia testified that she lived with her mother since her parents’ divorce when she was five years old. She visited her father occasionally but had no possessions at his apartment. She did not recall whether she told the police she resided in the apartment or whether she gave them permission to enter the premises.

We view the matter of whether defendant’s daughter had authority to consent to the search of the premises and whether she did in fact give such consent to have been questions of the credibility of the witnesses. A determination of that credibility is within the province of the trial court, and we may not disturb those findings unless they are contrary to the manifest weight of the evidence. (People v. Householder (1980), 81 Ill. App. 3d 31, 400 N.E.2d 988.) The trial court here accepted the testimony of the police officer and rejected the evidence offered by defendant. We may not substitute our judgment for that of the trial court.

Defendant next contends that prejudicial error resulted from the State’s use of a prior inconsistent statement of defendant’s sister as substantive evidence of defendant’s guilt without giving a proper limiting instruction.

When the State called Mary Buse, defendant’s sister, as a witness, she testified that defendant was not present when the shooting occurred. The prosecutor expressed surprise and was granted leave to examine her as a hostile witness pursuant to Supreme Court Rule 238. (87 Ill. 2d R. 238.) Through cross-examination, her five-page statement was read to the jury. The trial court did not give, nor did defendant request, a limiting instruction that the statement could not be used as substantive evidence of defendant’s guilt. The assistant State’s Attorney who took the sister’s statement testified and also read the statement to the jury. The statement was introduced into evidence and, at the State’s request, was given to the jury for use during their deliberations. During closing argument, among other references to defendant’s sister, the prosecutor stated as follows:

“She told Mr. Cavanaugh by her written signed statement, that she saw her brother, Dan Taglia, at the intersection of 21st Place and 49th Avenue, and not only did she see him, but she saw Ricky Shephard [sic] on the street at the same time she saw Dan Taglia. She saw no weapon in the hand of Ricky Shephard [sic]. She saw her brother with a gun in his hand right after hearing a shot. That’s what Mary Buse saw. She saw Dan Taglia at the intersection two years ago and won’t say it now.”

During rebuttal closing argument, defense counsel objected to the prosecutor’s further reference to.defendant’s sister because she had not been mentioned during defendant’s argument. The prosecutor twice explained, in the presence of the jury, that it was proper argument because it referred to her identification of defendant.

The only instruction concerning the sister’s out-of-court statement came in the court’s charge to the jury. The court gave Illinois Pattern Jury Instruction, Criminal, No. 3.11 (2d ed. 1981) (hereinafter cited as IPI), which informed the jury that prior inconsistent statements could only be considered in determining credibility.

The decision to call an individual as a court’s witness is discretionary with the trial court, and the decision will not be disturbed on appeal absent an abuse of discretion. (People v. Robinson (1977), 46 Ill. App. 3d 713, 361 N.E.2d 138.) In the present case, the trial court’s decision to call defendant’s sister as a court’s witness was not an abuse of discretion.

Remaining for our consideration, however, is defendant’s argument that the impeachment technique employed was improper. Prior inconsistent statements, while not competent as substantive evidence, may be used for impeachment purposes to determine credibility. (People v. Collins (1971), 49 Ill. 2d 179, 274 N.E.2d 77.) And prior inconsistent statements which bear directly on defendant’s guilt may be used for impeachment purposes provided the jury is cautioned at the time of impeachment and instructed at the end of the trial that the statements could not be given substantive effect. (People v. Bailey (1975), 60 Ill. 2d 37, 322 N.E.2d 804; People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770.) Here, no such caution or instruction was given to the jury. The instruction which was given, IPI Criminal No. 3.11, was insufficient in itself to inform the jury that the impeachment evidence could not be considered substantively. (People v. Riley (1978), 63 Ill. App. 3d 176, 379 N.E.2d 746.) While a defendant who fails to offer a jury instruction generally waives his right to raise that claim of error on appeal, this court may recognize plain errors or defects affecting substantial rights, even though they were not brought to the attention of the trial court. (87 Ill. 2d R. 615(a).) We believe that in the present case, the .omission of a caution and limiting instruction, coupled with the impeachment technique utilized by the State in regard to the sister’s statement, was so prejudicial that it amounted to plain error. (People v. Riley; People v. Robinson (1977), 46 Ill. App. 3d 713, 361 N.E.2d 138.) The information contained in the sister’s prior inconsistent statement was -read into the record twice and was dwelt on excessively. The prosecutors emphasized the statement during dosing argument and indeed, over objection, candidly informed the court and jury that the statement was an identification and thus had substantive effect. (See People v. Tate (1964), 30 Ill. 2d 400, 197 N.E.2d 26; People v. Fields (1975), 31 Ill. App. 3d 458, 334 N.E.2d 752.) Nor can we say that the other competent evidence so overwhelmingly established defendant’s guilt beyond a reasonable doubt that the error was harmless. (People v. Triplett (1980), 87 Ill. App. 3d 763, 409 N.E.2d 401.) Three eyewitnesses identified defendant, but only one of the witnesses was unbiased and without something to gain. Defendant took the stand and denied committing the crime. He was entitled to a trial free from such harmful error.

In view of our holding, it is unnecessary to consider defendant’s other claim that certain comments of the prosecutor deprived him of a fair trial. The remarks are unlikely to recur in a new trial.

For the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

McGILLICUDDY and RIZZI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFREDO CASTRO, Defendant-Appellant.
    First District (2nd Division)
    No. 81—1783
    Opinion filed March 15, 1983.

      Katz, Hirsch, Wise & Colky, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Raymond Brogan, and Thomas Wood Flynn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant, Alfredo Castro, guilty of aggravated kidnaping and attempted deviate sexual assault of Anthony Sasso, a severely retarded 16-year-old boy. Castro appeals, raising as issues whether: (1) the circuit court properly allowed the State to add and strike certain allegations and correct a citation in the information brought against him; (2) the State proved that he had secretly confined Anthony against his will and forced him to submit to an act of deviate sexual intercourse; (3) testimony concerning Anthony’s I.Q. and social maturity test scores was admissible; and (4) the court committed reversible error when it informed the jury that the confinement of a child under 13 years of age is presumed to be against his will if his parents have not consented to that confinement.

At trial, Anthony’s sister, Rose Marie Sasso, testified that she and her family lived in the 2700 block of west 18th Street, Chicago, on October 30, 1980. At 7:30 p.m. Anthony went to a grocery store nearby where he would go often to perform chores in return for candy or soda. When Anthony did not return home by 8 p.m., the time the store closed, Rose went looking for him, could not find him, and told her mother, Gloria Ortiz, what had happened.

Ortiz testified that after looking for Anthony for almost an hour she called the police. Ortiz described Anthony to investigating police, who communicated this description over the police radio. She and the officers then drove around, unsuccessfully searching for Anthony. Investigating officer Alberta Raymond testified similarly to Ortiz.

Officer Kenneth Maduzia testified that at 10:30 p.m. he and his partner, James Henderson, were on routine patrol. They noticed a late model Chevrolet pickup truck, with a camper on the back, parked within one block of Anthony’s home. It was rocking back and forth. Looking into the back of the truck, they saw Castro roll off Anthony’s back. Anthony was lying face down in the camper; his clothes were in disarray; his pants and underpants down around his ankles, and his hair messed up. Castro’s pants and underpants were also down around his ankles. Castro’s penis was erect.

The police notified Ortiz and took Anthony to Mt. Sinai Hospital. The parties stipulated that Dr. Kim, a resident, examined him and observed that there was no tearing, trauma, or bleeding in or around Anthony’s anus. He found no sperm on either Anthony’s or Castro’s underwear. The parties also stipulated that Castro was age 44.

Dr. Traute Page testified for the State. She is a medical doctor and was director of the Esperanzo School for the mentally retarded since 1972, which school Anthony had attended since age 6. The school held a total enrollment of 76 students. Anthony’s I.Q. was 30; a normal I.Q. is between 90 and 100. Anthony’s Vinland Social Maturity Test scale indicated a mental ability of age 7, yet Anthony could not write his name, tell time, or wash or dress himself without help. He could not speak in complete sentences and had difficulty answering even very simple questions. He is a very trusting and affectionate child.

Castro neither testified nor called any witnesses. When the State rested, he moved for a directed verdict on both counts. Count I had charged Castro with the offense of “attempt, in that he, [sic] attempted by force and threat of force, to compel Anthony Sasso to submit to an act of deviate sexual conduct, to wit: anal intercourse, in violation of Chapter 38, Section 11 — 3 Illinois Revised Statutes ***.” The court granted the State’s subsequent motions to strike the words “and threat of force” and to amend count I to charge Castro with violating of section 8 — 4 of the Criminal Code of 1961 (defining attempt) rather than section 11 — 3 of the Code (defining deviate sexual assault).

Castro contends that the words stricken constituted a material element of the offense for which he was charged and were not an unnecessary allegation in light of the conjunctive phraseology used. The State characterizes the words as mere surplusage and argues that the language of the statute rather than the words used in the information determine whether an allegation is essential or not. Less specificity is required in charging elements of an inchoate, rather than completed, offense. (People v. Williams (1972), 52 Ill. 2d 455, 461, 288 N.E.2d 406.) Further, in light of the evidence adduced at trial and the fact the State only had to show that Castro either used or threatened to use force, the words “and threat of force” were unnecessary and properly stricken. (See People v. Simon (1981), 101 Ill. App. 3d 89, 427 N.E.2d 843; People v. Tuczynski (1978), 62 Ill. App. 3d 644, 378 N.E.2d 1200; and People v. Adams (1977), 45 Ill. App. 3d 334, 359 N.E.2d 840.) Moreover, misciting the applicable statutory provision in an indictment is a formal rather than a substantive defect, which may be corrected at any time. See section 111 — 5 of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1979, ch. 38, par. 111— 5), and People v. Boyd (1980), 87 Ill. App. 3d 978, 981, 409 N.E.2d 392.

The State amended count II shortly before trial, adding the words “and did secretly confine said Anthony Sasso,” the information thereby charging Castro with the offense of aggravated kidnaping in that “he knowingly by force and threat of the imminent use of force carried Anthony Sasso from one place to another with the intent to secretly confine him against his will and did secretly confine said Anthony Sasso and attempted to commit a felony, to wit: deviate sexual assault upon him, in violation of Chapter 38, Section 10 — 2(a)(3) Illinois Revised Statutes ***.” Castro contends that the circuit court should not have permitted this amendment on the eve of trial, but cites no authority in support of his argument. “An indictment *** may be amended *** at any time because of formal defects ***” (emphasis added) (Ill. Rev. Stat. 1979, ch. 38, par. 111 — 5), particularly where, as here, the insertion of the words did not change the substance of the charge. The amendment does not appear to have affected Castro’s strategy at trial or the jury’s verdict. This objection is without merit.

After Castro moved for a directed verdict, the circuit court granted the State’s motion to strike the words “and threat of the imminent use of force carried Anthony Sasso from one place to another.” As a result, count II actually charged Castro with violating section 10 — 1(a)(1) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 10 — 1(a)(1)), rather than section 10 — 1(a)(2) of the Code (111. Rev. Stat. 1979, ch. 38, par. 10 — 1(a)(2)). Castro contends that these subsections define separate and distinct offenses and that he was therefore convicted of an offense other than the one for which he was charged. Section 10 — 1 defines but one offense, kidnaping. Subsections 10 — 1(a)(1), (2) and (3) simply define three different ways that the crime may be committed. See People v. Allen (1974), 56 Ill. 2d 536, 309 N.E.2d 544, cert. denied (1974), 419 U.S. 865, 42 L. Ed. 2d 102, 95 S. Ct. 120, where the court rejected a similar argument related to murder; see also People v. Hadley (1974), 20 Ill. App. 3d 1072, 314 N.E.2d 3.

Castro next contends that the State failed to prove that he secretly confined Anthony against his will or that he forced him to submit to an act of deviate sexual intercourse. The jury here had the right to consider the difference in the ages of Castro, 44, and the victim, 16. The evidence showed that the victim was severely retarded, with a mental age of 7. Officers Maduzia and Henderson testified that: they found Castro lying on top of Anthony with his penis erect; both of them still had their pants partially on; their clothes were in disarray; and Anthony’s hair was disheveled. They also testified that what had drawn their attention to the truck in the first place was the fact that it was rocking back and forth. From these facts a jury could have concluded that Anthony was struggling to prevent Castro from having intercourse with him and to extricate himself from the situation. (See People v. Zeiger (1981), 100 Ill. App. 3d 515, 426 N.E.2d 1229.) The State may prove its case by circumstantial as well as direct evidence and a jury or other factfinder may draw all reasonable inferences from that evidence. (Ohio Building Safety Vault Co. v. Industrial Board (1917), 277 Ill. 96, 102-03, 115 N.E. 149; Conreaux v. Industrial Com. (1933), 354 Ill. 456, 463, 188 N.E. 457.) It is not the function of a reviewing court to substitute its judgment for that of the jury upon controverted questions of fact. (Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill. 2d 153, 163, 125 N.E .2d 47; Trauscht v. Gunkel (1978), 58 Ill. App. 3d 509, 374 N.E.2d 843.) We find no error.

Castro next argues that Page’s testimony concerning Anthony’s I.Q. and social maturity test scores was incompetent, irrelevant, repetitive, unduly prejudicial and hearsay because it was based upon scientific determinations made by another person. Page was a doctor. She had known Anthony for nine' years. The State was required to prove that Anthony had not voluntarily gone with Castro to his truck or agreed to have intercourse with him there. The essence of Page’s testimony called into question Anthony’s capacity to have consented to either act because he was severely retarded. Dr. Page’s testimony was both competent and relevant, therefore. With regard to Castro’s hearsay objection, it appears to be well-settled law that experts may consider not only medical and psychological records commonly relied upon by members of their profession in forming their opinions (People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171), but may testify as to the contents of these records as well. People v. Rhoads (1979), 73 Ill. App. 3d 288, 391 N.E.2d 512; In re Germich (1981) , 103 Ill. App. 3d 626, 431 N.E.2d 1092; and Kinsey v. Kolber (1982) , 103 Ill. App. 3d 933, 431 N.E.2d 1316.

Lastly, Castro argues that the court committed reversible error when it read to the jury Illinois Pattern Jury Instruction, Criminal, No. 8.03 (2d ed. 1981). That instruction is based upon section 10 — 1(b) of the Criminal Code of 1961 (111. Rev. Stat. 1979, ch. 38, par. 10— 1(b)), which reads: “Confinement of a child under the age of 13 years is against his will within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.” Castro contends that the court had no legal or factual basis upon which to tender this instruction because Anthony was 16 years of age when the events described occurred. He contends that the legislature could only have meant physical as opposed to mental age when it used the word “age” in the above-cited statutory provision. The State maintains that section 10 — 1(b) should be construed to refer to either mental or physical age.

The question appears to be one of first impression in this State. There is neither any record of the legislative debates concerning section 10 — 1(b), nor committee comments. We are left to surmise what the legislature meant by the words “13 years of age.” As used in the law of rape, to which deviate sexual assault cases refer in determining force or want of consent (see, e.g., In re Darcy (1974), 18 Ill. App. 3d 1068, 1069-70, 311 N.E.2d 353), will or consent contemplates an exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. (See Black’s Law Dictionary 276 (5th ed. 1979).) Manifestly, when the legislature adopted section 10 — 1(b) it did not believe an average child under 13 years of age could exercise that intelligence based on knowledge of its significance and moral quality with respect to confinement of this type. Patently, a mentally retarded child who lacks both the intelligence and social maturity of a normal 7-year-old is in no better position to exercise his will or consent to being taken from one place to another or to taking part in an act of deviate sexual intercourse, irrespective of his chronological age. We conclude that the instruction was properly given.

Castro contends that the circuit court committed reversible error when it read the challenged instruction to the jury because in doing so, the court needlessly highlighted Dr. Page’s testimony concerning Anthony’s I.Q. and social maturity test score, which he argues were inadmissible and prejudicial. Since we have concluded that Dr. Page’s testimony was admissible, we find no merit in this latter argument.

For the foregoing reasons, we find no reason to disturb defendant’s convictions for aggravated kidnaping and attempted deviate sexual assault.

Affirmed.

DOWNING, P.J., and PERLIN, J., concur.

       Officer Henderson’s testimony was essentially the same as Maduzia’s .


author: JUSTICE GOLDBERG

text:
    COMET CASUALTY COMPANY, Plaintiff-Appellee, v. JAMES B. HOLLOMAN et al., Defendants-Appellants.
    First District (1st Division)
    No. 82—0135
    Opinion filed March 14, 1983.

      Judge, Kurnik & Knight, Ltd., of Park Ridge (Andrew Kopon, Jr., and Vincent C. Cipolla, of counsel), for appellants.
    Brian D. Alpert, of Chicago, for appellee.
   JUSTICE GOLDBERG

delivered the opinion of the court:

Comet Casualty Company (Comet) filed suit for declaratory judgment regarding coverage of its policyholder, James Holloman. The trial court released Comet from its duty of coverage. Odell Walker, a defendant, has appealed.

This is a virtually agreed chronological factual statement:

July 17, 1977 — Comet issued a liability policy on a Pontiac automobile owned by James Holloman.

September 12, 1977 — Holloman also bought a Chevrolet automobile. He took no steps to accomplish application of the policy to the Chevrolet.

November 3, 1977 — Holloman sold the Pontiac to his brother by endorsement of the certificate of title.

November 28, 1977 — Holloman was involved in an automobile accident while he was driving the Chevrolet.

November 28, 1977 — Holloman notified Comet’s agent, the County Insurance Service, Inc., of the accident by telephone and requested amendment of the policy to substitute the Chevrolet automobile as a replacement car. In due course Comet issued a declaration to be appended to the policy showing: “Effective Date of Endorsement, November 29, 1977.”

April 3, 1978 — Suit was filed by Odell Walker against Holloman.

September 7, 1979 — Suit was filed against Holloman by Patricia Sabella as administrator of the estate of her deceased husband. In due course Holloman filed a petition in bankruptcy.

September 19, 1980 — Comet filed its motion for declaratory judgment.

I

Comet properly joined all interested parties. This included Holloman the policyholder, Odell Walker, and Patricia Sabella as administrator. In the appeal to this court, the only notice of appeal purports to be filed by Walker. Counsel for Walker have filed one brief which is labeled as being on behalf of ‘ ‘Defendants-Appellants. ’ ’ Comet first claims in this court that the notice of appeal filed only by Walker was ineffective to permit this court to review the rights of Holloman as regards the policy in question.

We find and conclude that this court has power “to make a complete adjudication of the issues” so that “all claims of error will be reviewed in this proceeding.” (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 145, 281 N.E.2d 323. See also William Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1978), 62 Ill. App. 3d 842, 845-46, 379 N.E.2d 400.) As the supreme court has pointed out in Schatz (51 Ill. 2d 143, 145), a reviewing court is fully authorized by Supreme Court Rule 366(a) (87 Ill. 2d R. 366(a)) to “ ‘grant any relief *** that the case may require.’ ” (See also Gatto v. Walgreen Drug Co. (1975), 61 Ill. 2d 513, 520, 337 N.E.2d 23, cert. denied (1976), 425 U.S. 936, 48 L. Ed. 2d 178, 96 S. Ct. 1669.) We will therefore proceed to review the claims of error presented to us by the briefs.

II

The policy provides coverage to:

“A private passenger, farm or utility automobile, ownership of which is acquired by the named insured during the policy period, provided that the acquired automobile (1) replaces an automobile described in this policy, (2) that neither the named insured nor any resident of his household retains ownership of the described replaced automobile, and (3) that the named insured notified the company in writing within thirty days after the acquisition of Ms intention to make tMs policy applicable to :such acquired replacement automobile.”

in this court Odell Walker urges that the Chevrolet automobile which James Holloman was driving at the time of the accident was a “replacement automobile.” He also urges that the record before us shows genuine issues of fact so that the motion for judgment on the pleadings should not have been allowed. Finally, he claims that the policy provision in question is ambiguous. On the contrary, Comet contends that the terms of the ¡policy limit the detention of ‘‘replacement vehicle.” Comet also cites the recent opinion of the Supreme Court of Illinois .in United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 343, 427, N.E.2d 127, which states a five-part common law test for the definition and requirements of the legal existence of a -replacement vehicle:

“There is -a five-part test for determining what is a replacement vehicle. To so qualify, the second vehicle (i) must be ac.quired ¡after the policy -was issued, (ii) the policy must not have expired before the -acquisition, and (iii) the second vehicle must be acquired to replace the vehicle described in the policy, which must (iv) be disposed of or (v) incapable of further service at the time of replacement.”

The supreme court in United Farm held the newly acquired vehicle was not a replacement car. This .was because, there, the policyholder retained both cars in operable condition and he continued to use the original car. (86 Ill. 2d 339, 342.) In our opinion, application of the five-part test to the instant .case leads clearly to the conclusion that the.result reached in United Farm is not applicable here. Examining the test we conclude:

(1) The Chevrolet automobile, the . second vehicle, was acquired by Holloman after Comet issued its policy.

(2) The policy did not expire before Holloman purchased the Chevrolet.

(3) The Chevrolet was acquired in,a sense to replace the vehicle described in the policy as evidenced by the sale of the Pontiac automobile, the original car, from Holloman to his brother.

(4) After this sale the Pontiac automobile was completely disposed of.

(5) In this sense, the Pontiac was incapable of further service to the policyholder at the time it was replaced by the Chevrolet.

Consequently we have reached the firm conclusion that under the five-part common law test the Chevrolet became a replacement vehicle within the technical definition of that term. On this basis we are required to conclude that Comet had a duty of coverage. However, it is next necessary to consider the policy provisions above quoted.

Examining the language of the policy provision, we conclude that it is not ambiguous so as to require extrinsic evidence. It has been repeatedly held that whether or not an ambiguity exists is a question of law for the1 court. If the writing is unambiguous the court must necessarily determine the intention of the parties solely from the language in the document itself. Sharps v. Stein (1980), 90 Ill. App. 3d 435, 440, 413 N.E.2d 75. See also National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 1049, 427 N.E.2d 806, appeal denied (1982), 88 Ill. 2d 551.

There is no need for extrinsic evidence to determine the meaning and intent of the policy provision before us. Since there, is no ambiguity, this policy should be “read as any other contract, that is, according to the plain and ordinary meaning of its terms.” Dora Township v. Indiana Insurance Co. (1980), 78 Ill. 2d 376, 378, 400 N.E.2d 921.

It seems to us that the problem is use of the word “acquisition” in fixing the time when Holloman intended to make his Chevrolet automobile a replacement for his former car, the Pontiac: “Acquisition” is defined as the “act of becoming the owner of certain property ***.” (Black’s Law Dictionary 23 (5th ed. 1979).) Thus, the term acquisition of an intention is not a proper use of the word “acquisition.”

Analyzing the situation before us, it is clear that when Holloman bought the Chevrolet automobile on September 12, 1977, it became his property but, by the simple act of his purchase it did not become a “replacement automobile” under the legal meaning of the term. At that time the newly acquired Chevrolet was not covered by Comet’s policy. It is equally clear that the 30-day grace period in the policy was not intended to commence to run at that time. Holloman may not then have considered or determined his use of the newly purchased car. A requirement that he make this decision within 30 days would be an unfair and impossible burden. Holloman had the legal right, of course, to buy the Chevrolet automobile, but it simply remained outside the protection of the Comet policy.

But, when Holloman sold the Pontiac to his brother on November 3, 1977, the Chevrolet became his only automobile. At that moment he had the policy option of acting within 30 days to make that car his replacement vehicle and to have it covered by the policy or to let the policy lapse. Thus, Comet was never subjected to the risk of insuring more than one car. It cannot be doubted from reading this policy provision that the 30-day grace period is intended to commence running not from the date upon which Holloman bought his second car but upon the date that the car became an actual replacement for his original automobile.

Applying these thoughts to the policy provision before us, the Chevrolet did not become “such acquired replacement automobile” until the sale of the Pontiac to Holloman’s brother. Therefore the 30-day period did not commence to run until November 3, 1977, which was the date of that sale. Holloman therefore had 30 days from and after the sale of the Pontiac within which to notify Comet of the existence of the replacement automobile. Consequently, Holloman is in the position of having complied with the grace period even though the accident in question had already occurred.

Consequently the order appealed from is reversed and the cause is remanded with directions that an order be entered finding that the policy issued by Comet was applicable to the defense of the present pending personal injury actions involving the parties hereto. We wish to make it clear that all other factors here remain subject to the reservation of rights filed by Comet.

Reversed and remanded with directions.

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


author: JUSTICE MEJDA

text:
    THE PEOPLE ex rel. ROBERT GROGAN et al., Plaintiffs-Appellants, v. DEAN J. LISINSKI, Defendant-Appellee.
    First District (5th Division)
    No. 83—268
    Opinion filed March 8, 1983.

      Burton S. Odelson and Mark H. Sterk, both of Evergreen Park, for appellants.
    Sheldon Gardner and George C. Pontikes, both of Foss, Schuman & Drake, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

The question presented in the instant appeal is whether a finding of guilty without an imposition of sentence constitutes a “conviction” for purposes of ouster from an elective office.

The facts are not in dispute. Defendant Dean J. Lisinski was elected to a four-year term as president of the village of Justice, Illinois, on April 17, 1981. On November 12, 1982, he was found guilty in the United States District Court on three counts of extortion. After the denial of various post-trial motions, sentencing was set for March 7, 1983.

Illinois statutes provide that an elective office becomes vacant when the office holder is convicted of an infamous or a disqualifying crime. (111. Rev. Stat. 1981, ch. 24, par. 3 — 4—5; ch. 46, pars. 25 — 2, 29 — 15.) If a vacancy occurs in an elective office more than 130 days before the next general municipal election, the vacancy is to be filled at the next election. If the vacancy occurs less than 130 days before the next election, the vacancy is to be filled through appointment by the board of trustees. (111. Rev. Stat. 1981, ch. 24, par. 3 — 4—6.) The next general municipal election of the village of Justice is scheduled to take place on April 12,1983.

■ Plaintiff Robert Grogan is a citizen who desires to run for the office of president of the village of Justice in the upcoming election. On December 27, 1982, pursuant to leave of court, plaintiff filed a complaint in quo warranto for judgment of ouster and other relief predicated thereon. Defendant filed a motion to dismiss. The trial court •dismissed the complaint as premature holding that, for purposes of ouster, an elected official is convicted only upon sentencing. Plaintiff appeals. Opinion

The Illinois Constitution, article XIII, section 1, provides that: “A person convicted of a felony, bribery, perjury or other infamous crimes shall be ineligible to hold an office created by this Constitution. ***.”

Section 3 — 4—5 of the Illinois Municipal Code in pertinent part states:

“A vacancy occurs in the office of mayor by reason of *** conviction of a disqualifying crime ***.” Ill. Rev. Stat. 1981, ch. 24, par. 3 — 4—5.

The Election code contains the following:

“Every elective office shall become vacant on the happening of either of the following events, before the expiration of the term of such office:
* * *
Fifth — His conviction of an infamous crime, or of any offense involving a violation of official oath.” Ill. Rev. Stat. 1981, ch. 46, par. 25 — 2.
“Any person convicted of an infamous crime as such term is defined in Section 124 — 1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit ***.” Ill. Rev. Stat. 1981, ch. 46, par. 29 — 15.

Plaintiff contends that the November 12, 1982, finding of guilty constituted a conviction and thereby created a vacancy in the office of president as of that date. He, therefore, argues that as the vacancy occurred more than 130 days before the next election, the office must be filled by the electorate. Defendant argues that a conviction occurs and the office is vacated only upon imposition of the sentence. Under that construction the vacancy had not yet occurred at the time the complaint was filed, and the complaint was, therefore, premature.

Plaintiff cites several statutory provisions in support of his position. Section 2 — 5 of the Criminal Code of 1961 defines conviction as “a judgment of conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an offense ***.” (Emphasis added.) (111. Rev. Stat. 1981, ch. 38, par. 2 — 5.) In interpreting this provision the court, in People v. Pruitt (1976), 45 Ill. App. 3d 399, 359 N.E.2d 1051, stated that “the use of the disjunctive ‘or’ indicates a legislative intent that conviction had occurred when a judgment is entered upon a jury verdict by the trial court.” (45 Ill. App. 3d 399, 400, 359 N.E.2d 1051, 1052.) Plaintiff also cites section 5 — 1—19 of the Unified Code of Corrections which provides: “ ‘Sentence’ is the disposition imposed by the court on a convicted defendant.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 1—19.) After examining these definitions, we note that each is expressly intended to interpret the provisions of the code or chapter in which it appears and, furthermore, that the designated meanings are not applicable where a particular context clearly requires a different meaning. (Ill. Rev. Stat. 1981, ch. 38, pars. 2 — 5, 1005 — 1—1.) The definitions urged by plaintiff are, therefore, not controlling in the instant case.

It is widely acknowledged that the meaning of the term “convicted” or “conviction” varies according to the context in which it appears and the purpose to which it relates. (Conlow v. State (Del. 1982), 441 A.2d 638; Kitsap County Republican Central Committee v. Huff (1980), 94 Wash. 2d 802, 620 P.2d 986; State v. Wagenius (1978), 99 Idaho 273, 581 P.2d 319; Vasquez v. Courtney (1975), 272 Or. 477, 537 P.2d 536; State v. Hanna (Iowa 1970), 179 N.W.2d 503; Commonwealth v. Reynolds (Ky. 1963), 365 S.W.2d 853.) The popular meaning of conviction relates to a determination of guilt, even absent entry of a record judgment. (People v. Goetz (1975), 27 Ill. App. 3d 680, 327 N.E.2d 516.) The more technical definition requires a final judgment entered on such a determination. The final judgment in a criminal case is the imposition of a sentence. People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.

In finding that defendant in the instant case was not “convicted” for purposes of the statutes relating to ouster, we are persuaded by and adopt the reasoning of the Delaware Supreme Court in Slawik v. Folsom (Del. 1979), 410 A.2d 512. In Slawik the plaintiff, tried for making false declarations before a grand jury, was removed from an elective office after he was found guilty but prior to sentencing. The question before the court was whether plaintiff had been “convicted” within the meaning of that word as used in article XV, section 6 of the Delaware Constitution. That section provides in part that “the Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime.” The court held that the plaintiff was not convicted until the district court had finalized the trial process by entering a final judgment of conviction by the imposition of sentence.

In reaching its decision in Slawik, the Delaware Supreme Court stated that “ ‘distinction must be made between a conviction which is a final judgment, and a plea or verdict of guilty which is only an element of a conviction.’ ” (Slawik v. Folsom (Del. 1979), 410 A.2d 512, 515, citing Fonville v. McLaughlin (Del. 1970), 270 A.2d 529, 531.) The court noted that the debates relating to article XV, section 6, refer to the word “convicted” as meaning convicted by a court in order to assure a public official subject to removal of his or her “day in Court.” (See State ex rel. Green v. Collision (Del. Super. Ct. 1938), 39 Del. 245, 197 A. 836, 842-44.) The accused in a jury trial on a criminal charge is not, therefore, convicted until he has had his day in court, which day ends only upon completion of the entire trial process including (1) the opportunity of the trial judge to correct any error in the trial, either sua sponte or upon appropriate motion; and (2) the imposition of sentence. Slawik held that the term “convicted,” as it was used to create a disability to hold public office, is construed to mean judgment of conviction consisting of a determination of guilt by plea or verdict followed by the imposition of sentence.

The conclusion in Slawik is supported by authorities in other jurisdictions. (See Annot., 71 A.L.R.2d 593 (1960).) When construing a constitutional provision similar to the statutes at issue in the instant case, the Supreme Court of Pennsylvania stated that the word “convicted” can mean only a final judgment of sentence and not merely a verdict of guilty rendered by a jury. (Commonwealth ex rel. McClenachan v. Reading (1939), 336 Pa. 165, 6 A.2d 776.) This rule was followed in Keogh v. Wagner (1964), 20 App. Div. 2d 380, 247 N.Y.S.2d 269, aff'd (1964), 15 N.Y.2d 569, 254 N.Y.S.2d 833, 203 N.E.2d 298, where the court stated that “where disabilities, disqualifications or forfeitures are to follow from a ‘conviction’ there is no ‘conviction’ in the eyes of the law unless a sentence is imposed or pronounced and a judgment of conviction entered thereon.” 20 App. Div. 2d 380, 384, 247 N.Y.S.2d 269, 272-73. See also Smith v. Commonwealth (1922), 134 Va. 589, 113 S.E. 707.

Plaintiff relies upon People ex rel. Keenan v. McGuane (1958), 13 Ill. 2d 520, 150 N.E.2d 168, for the proposition that conviction occurs upon the rebuttal of defendant’s presumption of innocence. Plaintiff concludes that defendant, therefore, would have been convicted when the finding of guilty was made. In Keenan it was not disputed that the official subject to ouster had been convicted of an infamous crime as he had been found guilty and sentenced. Instead, the issue before the court was whether a convicted official was entitled to a stay of ouster during the pendency of his appeal. Although the court’s ruling that ouster is not stayed under such circumstances is not controlling in the instant case, Keenan supports our conclusion in stating:

“Under the constitutions and statutes of sister States creating a vacancy in public office where the incumbent has been convicted of a felony, it is generally held that the office is vacated upon a verdict of guilty and that an appeal does not stay the effect of such vacancy. These decisions are generally predicated upon the theory that after a plea or verdict of guilty, judgment, and sentence by a court of competent jurisdiction, the presumption of innocence which, up to that time, had persisted in favor of the defendant, no longer prevails ***.” (Emphasis added.) 13 Ill. 2d 520, 536, 150 N.E.2d 168, 177.

We find that the cases cited by plaintiff for the proposition that conviction occurs without sentencing are inapposite. As stated above, we acknowledge that the term “conviction” is susceptible to more than one meaning. The meaning ascribed to that term in a particular situation is determined by its context and purpose. The cases cited by plaintiff are factually distinguishable from the instant case and, therefore, the fact that they hold that conviction occurs upon a determination of guilt is neither controlling nor persuasive in the resolution of the case at bar.

After a careful review of the applicable authorities we find that the district court’s November 12, 1982, finding of guilty did not constitute a conviction of defendant, as the term conviction is used in the Illinois Constitution and statutes relating to ouster. (Ill. Const. 1970, art. XIII, sec. 1; 111. Rev. Stat. 1981, ch. 24, par. 3 — 4—5; ch. 46, pars. 25 — 2, 29 — 15.) In our opinion the use of the term “conviction” contemplates more than a mere finding of guilt. Rather, a public official subject to removal is entitled to the benefit of the entire trial process, which process is not completed upon a finding by the court or verdict by the jury. The trial process ends and the accused is “convicted” when the sentence is imposed. Such an interpretation is consistent with the purpose of the statutes and yet assures the public official of his or her “day in Court.” See Slawik v. Folsom (Del. 1979), 410 A.2d 512, 515.

In view of our disposition of the foregoing issue, we need not consider the other relief sought by plaintiff based thereon or the other issues presented in defendant’s brief.

For the reasons stated, the order of the trial court is affirmed.

Affirmed.

WILSON, P.J., and O’CONNOR, J., concur.

       The “president” of a village may be referred to as “mayor” and the terms are used interchangeably. Ill. Rev. Stat. 1981, ch. 24, pars. 1 — 1—2(8), 1 — 1—2.1.

       Defendant’s motion for transfer of appeal to the Illinois Supreme Court pursuant to Rule 302(b) (73 Ill. 2d R. 302(b)) was denied on February 9,1983.


author: JUSTICE LEWIS JUSTICE TRAPP,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellant, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees (The County of La Salle ex rel. Gary Peterlin, State’s Attorney of La Salle County, et al., Respondents; William Clarke et al., Respondents and Cross-Appellants, v. The Pollution Control Board, Respondent and Cross-Appellee).—THE COUNTY OF LA SALLE ex rel. GARY PETERLIN, State’s Attorney of La Salle County, et al., Petitioners-Appellants, v. THE POLLUTION CONTROL BOARD et al., Respondents-Appellees (William Clarke et al., Respondents and Cross-Appellants, v. The Pollution Control Board, Respondent and Cross-Appellee).
    Third District
    Nos. 82—180, 82—190 cons.
    Opinion filed March 8, 1983.

      TRAPP, J., concurring in part and dissenting in part.
    Tyrone C. Fahner, Attorney General, of Springfield (H. Alfred Ryan, Assistant Attorney General, of counsel), for the People.
    Joseph V. Karaganis and Russell R. Eggert, both of Karaganis & Gail, Ltd., of Chicago, for County of La Salle et al.

    Thomas J. Immel, of Burditt & Immel, and Lee K. Zelle, both of Springfield, for respondents Pioneer Development and William Clarke.
    No brief filed for respondents Illinois Pollution Control Board, Illinois Environmental Protection Agency, and Wilmer and Edith Brockman.
   JUSTICE LEWIS

delivered the opinion of the court:

This case consolidates two appeals from an order of the Illinois Pollution Control Board which affirmed the Illinois Environmental Protection Agency’s issuance of a permit for the construction of a hazardous waste disposal site. Case No. 82 — 180 is an appeal brought by the Attorney General of the State of Illinois. Case No. 82 — 190 is an appeal brought by the County of La Salle and others.

The recipients of the permit have cross-appealed from certain findings of the Pollution Control Board.

Facts

A. THE PARTIES

The appellants in case No. 82 — 190 are the County of La Salle, the village of Naplate, the city of Ottawa, the village of Utica, Ottawa Township Board of Trustees, the town of Ottawa, Residents Against Polluted Environment, Rosemary Sinon, Marie Madden, and Joan Benya Bemabei. These parties will be referred to as “petitioners.”

The named appellees in both cases are the Illinois Pollution Control Board (Board), the Illinois Environmental Protection Agency (Agency), William Clarke, Pioneer Development, Pioneer Processing, Inc., and Wilmer and Edith Brockman. The Agency, the Board, and the Brockmans have not filed a brief in this appeal. William Clarke, Pioneer Development and Pioneer Processing, Inc., will be referred to as “Pioneer.”

B. THE AGENCY HEARING

On July 1, 1980, Pioneer and others filed an application with the Illinois Environmental Protection Agency seeking a modification of an existing permit. The existing permit authorized the development of a sanitary landfill and Pioneer’s application for modification sought authorization to develop a hazardous waste disposal site. The proposed development is to be constructed on a 177-acre site in La Salle County, Illinois.

The Agency scheduled a public hearing in Ottawa on November 21 and 22, 1980, pursuant to section 39(c) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. HV-lz, par. 1039(c)). The public notice of the hearing outlined the procedures that would be followed and provided:

“The public hearing will be divided into two parts: the day sessions will be reserved for an adversary hearing where legal counsel or other registered representatives of Pioneer Properties or an opposition group may present expert witnesses who wiH be subject to cross-examination by the other side. The evening session will be reserved for oral comments from individual local residents. Individuals commenting during the evening session will be limited to 7 minutes each, but they will not be subject to cross-examination. In addition, written comments for the record can be submitted during all public hearing sessions and for 14 days after November 22, 1980. Oral and written testimony will be accepted on the appropriateness of the Pioneer Properties site for the treatment and disposal of solid waste, including special and hazardous waste.”

The day session on November 21 began with a presentation by various Pioneer personnel and technical experts describing the proposed project. After the Pioneer presentation, attorneys for interested persons cross-examined Pioneer’s experts. Attorneys representing La Salle County, the village of Ottawa, Ottawa township and several landowners in La Salle County participated in the cross-examination. In the evening session on November 21, 29 persons made public comments. The day session on November 22 consisted mostly of the cross-examination of Pioneer’s witnesses by Michael Heaton, an attorney representing petitioner, Rosemary Sinon. Heaton also elicited evidence from his own expert witness.

During the November 22 hearing and prior to the close of the hearing, the hearing officer stated that the record would remain open until December 12 for written comments. Between December 3 and December 11, Heaton submitted material for the record which included resolutions in opposition to the permit from the Ottawa Township Board and the La Salle County Board. The material also included several petitions in opposition to the permit. Numerous citizens and some local governmental units also made post-hearing submissions opposing the permit. Pioneer’s post-hearing submissions included responses to (1) issues raised by the testimony of Heaton’s expert witness on the November 22 hearing; (2) statements made by citizens at the November 21 evening session; and (3) the cross-examination of Pioneer’s experts.

The Agency issued a permit to Pioneer on December 22, 1980, which authorized the development of the site for hazardous waste disposal. The permit only authorized the construction of the site and specifically prohibited actual operation and disposal of hazardous waste on the site without an operating permit.

C. THE FIRST BOARD HEARING AND CIRCUIT COURT PROCEEDINGS

Petitioners filed a petition for review and revocation of the permit with the Illinois Pollution Control Board on January 26, 1981. The petition alleged, inter alia, that the Agency failed to perform its duty to protect the public health and environment; that the Agency proceedings violated the provisions of the Illinois Administrative Procedure Act (111. Rev. Stat. 1981, ch. 127, par. 1001 et seq.) and that the Agency procedures violated petitioner’s constitutional rights to due process. The Board appointed a hearing officer who scheduled a hearing for April 6, 1981, to be held in Ottawa.

Prior to the hearing, Pioneer filed a motion in limine which requested the Board to specify the procedures to be followed at the Board hearing. Pioneer noted that section 40(b) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. IIIV2, par. 1040(b)) required the hearing to be exclusively on the record before the Agency. Pioneer suggested that the hearing should be limited to oral arguments by the parties and that the Board should not hear any additional testimony or factual statements.

Petitioners filed objections to Pioneer’s motion in limine. Petitioners agreed that review by the Board should be limited to the record before the Agency but argued that the record submitted to the Board did not include all of the evidence on which the Agency relied in issuing the permit. Petitioners claimed that they were entitled to introduce this additional evidence at the Board hearing.

In its order ruling on Pioneer’s motion in limine and petitioners’ objections, the Board stated that if evidence outside the Agency record was offered at the hearing, the hearing officer was to rule on its admissibility. If the hearing officer admitted the evidence, the adverse party could note their objections to the Board. If the hearing officer did not admit the evidence, the party tendering the evidence would be allowed to make an offer of proof “where the proffer [was] otherwise relevant.” The Board also stated that a reasonable time should be allowed for public comment. Finally, the Board stated that under section 40(a) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. lll1^, par. 1040(a)), Pioneer may deem the permit issued unless the Board ruled on the petition within 90 days of its filing.

On March 20, 1981, 17 days before the scheduled hearing, petitioner Rosemary Sinon filed suit in the La Salle County circuit court seeking a declaratory judgment that the permit was void and asking for a preliminary injunction prohibiting Pioneer from proceeding in reliance on the permit. Pioneer, the Agency, the Agency’s director, and Wilmer and Edith Brockman were named defendants.

After hearing arguments, Circuit Judge Leonard Hoffman entered an order finding that the proceedings before the Agency violated Sinon’s rights under the Illinois Administrative Procedure Act and the due process clauses of the Illinois and United States constitutions and, as a result of these violations, Pioneer’s permit was void. The order enjoined the named defendants from “enforcing or otherwise relying upon [the permit] and from undertaking, allowing or causing in any manner, directly or indirectly, any activity to develop a hazardous waste sanitary landfill pursuant to said permit.” The order was dated March 5,1981.

On April 2, 1981, a prehearing conference was held in Ottawa by the Board’s hearing officer. Russell Eggert, representing certain petitioners, informed the hearing officer of the preliminary injunction and suggested that Pioneer could not participate in the April 6 hearing without violating the order. The hearing officer indicated that the hearing would be held as scheduled and would begin at 9:30 a.m. The next day, April 3, petitioners filed a motion to enforce the preliminary injunction. A hearing on the motion was set for 9 a.m., April 6 (the day of the Board hearing). After hearing arguments, Judge Hoffman issued the following order:

“Plaintiffs Motion to Enforce Preliminary Injunction *** is granted:
(a) All parties to this cause are hereby ordered to refrain from proceeding in any way before The Illinois Pollution Control Board in cause No. PCB 81 — 10.
(b) The permit being void, the proceeding in No. PCB 81 — 10 shall not go forward until further Order of this Court.
(c) This Order shall apply to all parties hereto and to the Pollution Control Board.”

At 10:05 a.m. on April 6, the hearing officer opened the Board hearing. Attorneys representing Pioneer and the Agency were present. Timothy Creedon, an attorney representing Ottawa Township, was also present and told the hearing officer that the Board hearing had been enjoined and that a written order was being prepared. The hearing officer stated that neither he nor the Board were parties to the circuit court proceedings nor had they received formal notice of the proceedings and that he would conduct the hearing as planned. The hearing officer noted that the petitioners were making no formal presentation in opposition to the permit and opened the hearing for public comment. One public comment was made. The hearing officer terminated the hearing at 10:20 a.m., 15 minutes after it had been opened.

At 11:10 a.m., April 6, the hearing officer reopened the record at the request of attorneys for petitioners who had been before Judge Hoffman that morning and had obtained a motion to enforce the circuit court’s preliminary injunction. Attorney Karaganis delivered the enforcement order to the hearing officer and stated that petitioners were not proceeding with the administrative proceedings. The reopened hearing was closed at 11:16 a.m.

On April 16, 1981, the Board entered an order stating that pursuant to the preliminary injunction entered by the circuit court of La Salle County, proceedings before the Board were stayed until a final adjudication by the State courts on the injunction. The Board construed the injunction as tolling the statutory 90-day limitation for a final decision by the Board. The Board determined that as of April 6, 1981, 20 days remained on the 90-day period. The injunction was eventually dissolved on January 25, 1982, by a mandate from the Third District Appellate Court. (See County of La Salle ex rel. Peterlin v. Mauzy (1981), 98 Ill. App. 3d 615, 424 N.E.2d 857, appeal denied (1981), 85 Ill. 2d 566, cert. denied (1982), 454 U.S. 1148, 71 L. Ed. 2d 302, 102 S. Ct. 1012.) The Board resumed its countdown on the 90-day period on January 26,1982.

D. THE SECOND BOARD HEARING

After the injunction was dissolved, the Board ordered that another hearing be held on February 6, 1982. Pioneer filed a motion for a permit by default or alternatively for affirmance without additional hearings on the basis that the 90-day period for Board action had expired. Petitioners filed a motion for summary reversal of the Agency’s issuance of the permit. Petitioners also filed a motion to compel the attendance of two witnesses; Thomas Cavanagh, the manager of the Agency’s permit section, and Terry Ayers, an Agency engineer who reviewed Pioneer’s application. The Board deferred action on Pioneer’s motion for a permit by default and petitioners’ motion for summary reversal stating that it would take the motions with the case. The Board granted petitioners’ motion to compel the attendance of Cavanagh and Ayers. The Board stated that “[t]he [witness’] depositions indicate that they have direct knowledge of the Agency’s review process in this matter and the sufficiency of the record. That information is clearly relevant to this proceeding and is best presented at hearing -with a full opportunity for cross-examination.”

The Board hearing was opened on February 6, 1982, in Ottawa, Illinois. The hearing lasted from 10:15 a.m. to 9 p.m. and was continued to February 8. The February 8 session started at 9 a.m. and the hearing was closed at 11 p.m.

The meeting on February 6 began with opening statements by Joseph Karaganis, representing the petitioners; by Thomas Immel, representing Pioneer; and by Delbert Haschemeyer, representing the Agency. After opening statements, petitioners introduced exhibits for identification. The exhibits consisted of material from Agency files' and depositions of Cavanagh and Ayers. (Throughout the hearings, petitioners introduced 78 exhibits for identification and over 40 exhibits were admitted into evidence.) After the identification of exhibits, petitioners’ attorney Karaganis examined Cavanagh on matters relating to the exhibits. This examination continued until the February 6 hearing was recessed.

On February 8, the hearing was reconvened and time was allotted for public comments. After the public comments, Karaganis continued examination of Cavanagh. Cavanagh was cross-examined by Lee Zelle, who represented petitioners. Michael Heaton was then called as a witness by petitioners. Heaton was questioned about dealings he had with the Agency while he was representing certain petitioners during the Agency proceedings on Pioneer’s permit. After Heaton was cross-examined by Zelle, the hearing officer allowed public comments and then adjourned the hearing.

E. THE BOARD’S ORDER

On February 16, 1982, the Board entered an order affirming the Agency’s grant of Pioneer’s permit. A written opinion was issued on March 4, 1982, which responded to various issues raised by the parties during the proceedings before the Board. The opinion stated that (1) Pioneer could not deem its permit issued under the 90-day limitation for Board action under section 40(a) of the Environmental Protection Act; (2) Pioneer was not entitled to a permit by default as a result of petitioners’ failure to attend the Board hearing scheduled for April 6, 1981; (3) the contested case provisions of the Illinois Administrative Procedure Act did not apply to public hearings held by the Agency; (4)- petitioners’ due process rights were not violated by the procedures followed at the Agency’s hearing; (5) the Agency’s decision to issue the permit was supported by the record; and (6) the issuance of the permit did not violate section 21(g) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. llF/a, par. 1021(g)), which required the permit applicant to obtain approval from nearby municipalities for the construction of a hazardous waste site and prohibited the location of a site within 1,000 feet of a private well.

E SUBSEQUENT PROCEEDINGS

Petitioners filed a petition for review of the Board’s order with tiie appellate -court pursuant to section 41 of the Environmental Protection Act. {111. Bev. Stat. 1979, ch. lll1^, par. 1041.) Pioneer filed a cross-petition alleging that the Board erred in ruling that Pioneer could not deem its permit issued under section 40(a) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. IIV-I2, par. 1040(a)). On March 16, 1982, the Attorney General of the State of Illinois filed a petition for review of the Board’s decision. The two appeals have been consolidated.

Opinion

I

The Attorney General did not participate in the proceedings before either the Agency or the Board. His first appearance in this case was his filing of a notice of appeal from the Board’s decision with the appellate court. The question is presented as to whether the Attorney General has standing to appeal.

Section 41 of the Environmental Protection Act lists the persons and parties who may obtain judicial review of Board decisions. It states:

“Any party to a Board hearing, any person who filed a complaint on which a hearing was denied, any person who has been denied a variance or permit under this Act, and any party adversely affected by a final order or determination of the Board may obtain judicial review, by filing a petition for review ***.” 111. Rev. Stat. 1979, ch. 111%, par. 1041.

The only provision which would conceivably apply to the Attorney General is “any party adversely affected by a final order *** of the Board.” However, in Lake County Contractors Association v. Pollution Control Board (1973), 54 Ill. 2d 16, 294 N.E.2d 259, the supreme court interpreted this provision of section 41 and held that the word “party” means a party to the Board proceedings. It was argued that this interpretation would render the provision superfluous since the first phrase of section 41 states that any party to a Board hearing may obtain judicial review. Nevertheless, the supreme court indicated that its interpretation was necessary in order for section 41 to comport with certain provisions of the Administrative Review Act (111. Rev. Stat. 1979, ch. 110, par. 264 et seq.).

The Attorney General was not a party to the Board proceedings and, therefore, had no statutory right to obtain judicial review of the Board’s decision. The Attorney General asserts, however, that he need not avail himself of the statute because he possesses both a common law right and an “inherent” right to appeal.

The Attorney General maintains that, in civil actions, a nonparty may appeal from a court judgment if the nonparty has a direct, immediate. and substantial interest in the subject matter which would be prejudiced by the judgment or benefited by its reversal-. (See In re Estate of Tomlinson (1976), 65 Ill. 2d 382, 359 N.E.2d 109.) In Tomlin-son, the supreme court stated that, prior to the Civil Practice Act, a nonparty had no statutory right, to appeal but could prosecute a writ of error by showing that he would be injured by the judgment or would be benefited by its reversal. This procedure was retained by Supreme Court Rule 301 (87 Ill. 2d R. 301), which provides that “[a]ll rights that could have been asserted by appeal or writ of error may be asserted by appeal.”

The Attorney General cites no authority or analogous supreme court rule which makes the- writ of error procedure applicable to administrative proceedings. Furthermore, recognition of a writ of error appeal from Board decisions would undermine the supreme court’s decision in Lake County Contractors Association. There, the court stated that, under section 41 of the Environmental Protection Act, one who seeks review must be adversely affected by the order of the Board and must have been a party to the Board proceedings. The case suggests that the writ of error theory of review is not applicable to review of Pollution Control Board orders since, even if a person’s interests were adversely affected by a Board order, he cannot obtain judicial review of the order unless he was a party to the Board proceedings. We are not willing to allow the Attorney General in through the back door when the supreme court has closed the front.

Finally, the Attorney General argues that the strong public interest in maintaining a healthful environment endows him with a “unique right” to appeal the Board’s decision as a nonparty. The only authority cited in support of this argument is People ex rel. Scott v. Illinois Racing Board (1973), 54 Ill. 2d 569, 301 N.E.2d 285. In Illinois Racing Board, the Attorney General appealed from the Board’s decision to grant racing licenses to four racing associations. The Racing Board argued that the Attorney General lacked standing to appeal its decision because he had not been a party to the Board’s proceedings and was' not adversely affected by the Board’s decision. The supreme court noted that the Attorney General had participated in the proceedings before the Board but stated that there were more persuasive grounds to allow his appeal. The court said:

“The strong public interest in maximizing both revenue to the State and to public charities is apparent, as is the necessity of requiring strict observance by public officials of the statutory scheme in furtherance of these objectives. That necessity, which reflects the public interest in maintaining the integrity of certain types of public activities, including the pari-mutuel betting present here, which are peculiarly susceptible to subversive influences, permits the Attorney General to initiate the judicial review of the Racing Board action here sought, for the nature of that activity requires the special vigilance of the Attorney General as well as that of those executive agencies charged with its regulation.” 54 Ill. 2d 569, 576, 301 N.E.2d 285, 288.

The facts of Illinois Racing Board provide a unique context for the quoted language. Testimony at the hearing before the Board showed that William Miller, an owner of substantial interests in two of the racing associations, was under indictment in Federal court on charges of perjury, bribery, mail fraud, and income tax evasion in connection with certain race track transactions. The testimony also showed that Lewis Jacobs and his family owned substantial interest in the other two racing associations. The Jacobs family owned and operated a corporation which had recently been convicted of conspiracy and interstate transportation in aid of racketeering enterprises.

There is no need to extend the doctrine of Illinois Racing Board to the present case. We see no indication that the Environmental Protection Agency’s issuance of permits is “peculiarly susceptible to subversive influences.” Furthermore, while we acknowledge the strong public interest in a healthful environment (see Ill. Const. 1970, art. XI, sec. 1), the protection of this interest does not require the Attorney General’s presence in this case. The Environmental Protection Act provides other safeguards for this interest. Section 42 of the Act authorizes the Attorney General to institute a civil action for an injunction to restrain violations of the Act. (111. Rev. Stat. 1979, ch. IllVz, par. 1042.) Section 43 authorizes the Attorney General to initiate a civil action for an immediate injunction to halt any discharge or other activity which causes or contributes to circumstances of substantial danger to the environment. (111. Rev. Stat. 1981, ch. lllVz, par. 1043.) Section 30 directs the Agency to conduct investigations upon the request of the Board or upon receipt of information concerning an alleged violation of the Act. 111. Rev. Stat. 1979, ch. lll1/2, par. 1030.

We conclude that the Attorney General has no standing to obtain appellate review of the Board’s decision. His appeal is dismissed.

II

Petitioners, having been parties to the Board proceedings, are properly before this court. They challenge first the procedures employed by the Agency in its decision-making process with regard to the issuance of Pioneer’s permit. Their argument focuses on section 39(c) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. lll1^, par. 1039(c)), which provides:

“Immediately upon receipt of a request for a permit or supplemental permit for a refuse disposal facility, the Agency shall notify the State's Attorney and the Chairman of the County Board of the county in which the facility is located and each member of the General Assembly from the legislative district in which that facility is located and to the clerk of each municipality any portion of which is -within 3 miles of the facility, prior to the issuance of a permit to develop a hazardous waste disposal site, the Agency shall conduct a public hearing in the county where the site is proposed to be located.”

Petitioners argue that the Agency’s decision to issue a permit must be based exclusively on a record of the public hearing which the Agency is required to conduct prior to the issuance of a permit. They maintain that the Agency erred by considering material submitted to it by Pioneer prior to the hearing which was not presented at the hearing and material submitted by Pioneer after the hearing.

Petitioners’ contention finds no support in the Environmental Protection Act. Section 39(a) of the Act directs the Agency to “adopt such procedures as are necessary to carry out its duties under this Section.” (111. Rev. Stat. 1979, ch. IIIV2, par. 1039(a).) Among the Agency’s duties under section 39 are to issue a permit “upon proof by the applicant that the facility *** will not cause a violation of [the] Act” and to conduct a public hearing “prior to the issuance of a permit.” (111. Rev. Stat. 1979, ch. IIIV2, par. 1039(a), (c).) Nothing in the Act requires the Agency’s decision to be based on a record of the public hearing. On the contrary, section 39(c) only requires a public hearing “prior to the issuance” of a permit. Since the Agency is not directed to conduct a public hearing if it denies a permit, section 39(c) implies that the Agency’s decision to grant or deny a permit precedes the public hearing.

Furthermore, not only is there no statutory language requiring the Agency to base its decision solely on a record of the public hearing, there is no requirement that a record of the hearing be kept. There are several examples within the Environmental Protection Act which show that when the General Assembly intends a record to be kept at a hearing, it so states. Section 32 of the Act, which describes the procedures to be followed at hearings before the Board upon complaints against alleged violators of the Act, states: “All testimony taken before the Board shall be recorded stenographically.” (111. Rev. Stat.1979, ch. lllVz, par. 1032.) The procedural requirements of section 32, which include the keeping of a record, are made applicable to hearings before the Board on a permit applicant’s petition to obtain review of the Agency’s denial of a permit. (See 111. Rev. Stat. 1979, ch. HV-k, par. 1040(a).) Finally, a recent amendment to the Act requires the local county board or governing body to conduct at least one public hearing in relation to the local authority’s approval or disapproval of the site location for new regional pollution control facilities. (See 111. Rev. Stat. 1981, ch. lllVz, par. 1039.1, as added by Pub. Act 82 — 682.) The section requires that “[t]he public hearing shall develop a record sufficient to form the basis of appeal of the decision.” (111. Rev. Stat. 1981, ch. IllVz, par. 1039.1(d).) While we encourage the keeping of a record of the public hearing under section 39(c), the Act does not require it. Since the Act does not require a record of the hearing, it obviously does not require the Agency’s decision to issue a permit to be based on such a record.

Another factor mitigating against petitioners’ contention is that the Agency had been authorized to issue permits without public hearings for over nine years prior to the effective date of the amendment requiring a public hearing. The provisions of section 39 which direct the Agency to issue a permit upon certain proof by the applicant and to adopt procedures necessary to carry out its duties under section 39 have remained unchanged since they became effective in July 1970. The amendment to section 39 requiring a public hearing took effect in January 1980. Consequently, the Agency’s decision-making procedures governing permit applications have, for at least nine years, not included public hearings. It is inconceivable that the General Assembly, by merely adding the phrase “prior to the issuance of a permit to develop a hazardous waste disposal site, the agency shall conduct a public hearing in the county where the site is proposed to be located,” intended to completely overhaul the Agency’s decision-making process by requiring its decision to now be based solely on a record of the public hearing.

Finally, we note that the public hearing requirement of section 39(c) was added by the same amendment which provided for third-party appeals to the Board when the Agency issued a permit. Prior to this amendment (Pub. Act 81 — 856) third parties had no right to obtain review by the Board of the Agency’s issuance of a permit. (See Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258.) It is not unreasonable to conclude that the purpose of the public hearing of section 39(c), in addition to providing a forum for public comment, is to provide interested persons with notice of the Agency’s proposed decision to issue a permit and the nature of the proposed facility so that they may knowledgeably exercise their newly created right to obtain review before the Board to contest the issuance of the permit.

We hold that the Environmental Protection Act does not require the Agency’s decision to issue a permit to be based solely on a record of the public hearing required by section 39(c) of the Act.

Ill

Notwithstanding section 39(a), which specifically directs the Agency to adopt its own procedures to carry out its duties under section 39, petitioners argue that the procedures applicable to the public hearing required by section 39(c) are the “contested case” provisions of the Illinois Administrative Procedure Act (APA). (111. Rev. Stat. 1981, ch. 127, par. 1016(a).) Section 16(a) of the APA provides that “[w]hen any licensing is required by law to be preceded by notice and opportunity for hearing, the provisions of this Act concerning contested cases shall apply.” All parties agree that the Agency’s permitting process is “licensing” within the meaning of the APA. (See sections 3.04 and 3.05 which define “license” and “licensing” (111. Rev. Stat. 1981, ch. 127, pars. 1003.04, 1003.05).) Petitioners argue that since section 39(c) of the Environmental Protection Act requires some kind of notice and a public hearing, the contested case provisions are applicable to the public hearing through section 16(a) of the APA.

We find, however, that the notice required under section 39(c) of the Environmental Protection Act is not the type of notice which triggers section 16(a) and the contested case provisions of the APA. Section 10(a) of the APA specifies the requirements of the “notice” in contested cases. It provides, inter alia,:

“In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Such notice *** shall include:
1. a statement of the time, place and nature of the hearing.” (111. Rev. Stat. 1981, ch. 127, par. 1010(a).)

This section clearly refers to notice of the hearing. We conclude that this is the same type of notice referred to in section 16(a) of the APA, i.e., notice of the hearing.

The notice required by section 39(c) of the Environmental Protection Act is not of the public hearing. The section requires the Agency to notify certain persons “[immediately upon receipt of a request for a permit.” This notice merely informs the recipients that a request for a permit has been received by the Agency and must be sent regardless of whether a public hearing is held. (The Agency is not required to hold a public hearing if it refuses to grant a permit.)

It is also noteworthy that the notice provision of section 39(c) was added in 1977, two years before the requirement for a public hearing. This Strongly suggests that the only relation between the notice and hearing provisions of section 39(c) is that they appear in the same sentence.

We hold, therefore, that the contested case provisions of the APA are not applicable to public hearings required by section 39(c) of the Environmental Protection Act.

IV

Petitioners argue that the procedures adopted by the Agency for the public hearing violated their constitutional rights to due process. Although the Agency’s procedures provided interested persons with the opportunity to appear, present evidence and cross-examine witnesses, petitioners claim they were entitled to a trial-type hearing at which all evidence relied on by the Agency must have been presented at the hearing and exposed to cross-examination and rebuttal.

Illinois courts have held that due process does not require either the Board or the Agency to grant third parties a hearing on the allowance of permits. In Landfill, Inc. v. Pollution Control Board (1978), 74 Ill. 2d 541, 387 N.E.2d 258, the Agency issued a sanitary landfill permit to Landfill, Inc. (Landfill). Certain third parties filed an application for review before the Pollution Control Board pursuant to a Board procedural rule. (At the time, the Environmental Protection Act did not authorize third-party appeals to the Board from the Agency’s issuance of a permit.) Landfill filed an action in the circuit court challenging the validity of the Board’s rule permitting third-party appeals. The circuit court held that the rule was authorized by the Environmental Protection Act and dismissed Landfill’s action.

The Board argued on appeal that the allowance of a permit could impinge upon third parties’ constitutional rights to a healthful environment and could threaten property rights and, therefore, third parties were entitled by due process to a hearing on the allowance of the permits. In rejecting this argument, the supreme court stated:

“The constitutional argument is without merit in light of the statutorily established mechanism for persons not directly involved in the permit-application process to protect their interests without embroiling the Board in an examination of the Agency’s permit-granting procedure.” 74 Ill. 2d 541, 559, 387 N.E.2d 258, 265.

In Village of South Elgin v. Waste Management of Illinois, Inc. (1978), 62 Ill. App. 3d 815, 379 N.E.2d 349, the court held that due process did not require the Agency to hold an adversarial hearing prior to the issuance of a developmental or operational permit for a sanitary landfill.

Since petitioners were not entitled to any hearing under the United States or Illinois constitutions, they certainly were not entitled to a trial-type hearing. We hold that the procedures adopted by the Agency for the public hearing did not violate petitioners’ rights to due process.

V

Petitioners argue that the Board erred in admitting new evidence during its proceedings in review of the Agency’s decision. Section 40(b) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. llV-k, par. 1040(b)) provides that a third party may petition the Board to contest the issuance of a permit by the Agency. This section states that “the Board shall hear the petition in accordance with the terms of subsection (a) of this Section and its procedural rules governing denial appeals, such hearing to be based exclusively on the record before the Agency.” (Emphasis added.) 111. Rev. Stat. 1979, ch. Illxk, par. 1040(b).

Prior to the Board’s first hearing, Pioneer filed a motion in limine suggesting that the proceedings during the Board’s hearing be limited to oral arguments. Petitioners objected to this motion and claimed that they were entitled to introduce evidence which should have been in the record before the Agency but was omitted. The Board denied Pioneeer’s motion in limine and granted petitioners’ request to introduce evidence not contained in the record before the Board. The Board recognized that its review was to be based exclusively on the record before the Agency; however, petitioners were contending that the Agency had not transmitted the entire “record” to the Board. The Board, therefore, granted petitioners the opportunity to show that the Agency had considered material outside of the record it transmitted to the Board. Petitioners now claim that the Board erred in considering testimony elicited at the Board hearing and violated section 40(b) which limits the Board’s review to the record before the Agency.

In Meyer v. Polivat (1957), 13 Ill. App. 2d 491, 492, 142 N.E.2d 747, 748, this court stated: “It is well settled law that a party cannot complain of errors which he has committed, invited, or induced the court to make, or to which he has consented.” This principle is applicable to the present case. Petitioners requested the introduction of new evidence and cannot now complain that the Board erred in considering this evidence. Furthermore, although petitioners’ claim that they were prejudiced by the Board’s consideration of additional evidence, they have not identified what this evidence was or how they have been prejudiced by it. It is not the duty of this court to scrutinize the record of proceedings before the Board in search of testimony which might be prejudicial to petitioners.

VI

Petitioners argue that the issuance of the permit violated section 21(g) of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. HV-lz, par. 1021(g)) in that the village of Naplate rescinded its approval of the location of the site and that the site was located within 1,000 feet of existing private wells. These issues were raised by the Attorney General, who was representing the Agency, in Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414. This court concluded that section 21(g) had not been violated. Petitioners raise no arguments which have not been already considered by this court in Pioneer Processing and, therefore, we adopt the reasoning and conclusions of that opinion.

VII

Pioneer, in its cross-appeal, argues that the Board erred by finding that Pioneer could not deem its permit issued under the 90-day limitation for Board action under section 40(a) of the Environmental Protection Act (111. Rev. Stat. 1979, ch. lllVz, par. 1040(a)). Section 40(a) allows a permit applicant to petition the Board for a hearing when the Agency refuses to grant a permit and provides that “[i]f there is no final action by the Board within 90 days, petitioner may deem the permit issued under this Act.”

The present proceeding was not brought under section 40(a). Petitioners sought review under section 40(b), which authorizes third parties to petition the Board for review of an agency’s decision granting a permit. Section 40(b) does not specifically state a time limitation for final action by the Board. However, the section provides that “thé Board shall hear the petition in accordance with the terms of subsection (a) of this Section and its procedural rules governing denial appeals.” We conclude that this provision makes the 90-day time limitation of section 40(a) applicable to section 40(b).

The only issue raised by the parties is whether the 90-day limitation was tolled by the preliminary injunction against the Board proceedings issued by the La Salle County circuit court. Pioneer argues that the 90-day limitation cannot be tolled but can only be waived by the permit applicant. In support of this proposition, Pioneer cites Marquette Cement Manufacturing Co. v. Pollution Control Board (1980), 84 Ill. App. 3d 434, 405 N.E.2d 512.

In Marquette, a cement manufacturer applied for an operating permit from the agency. The agency denied the permit application and the company petitioned for a hearing before the Board. Due to scheduling difficulties of an “unspecified nature” the hearing was set for a date which was more than 90 days after the day the company’s petition for a hearing was filed. The Board sought a waiver of the 90-day limit from the company but the company refused to grant a waiver. Six days before the 90-day limit expired, a majority of the Board voted to dismiss the company’s petition without prejudice on the grounds that no hearing had been held and the company’s petition failed to conform with a procedural rule of the Board.

The appellate court determined that the Board’s dismissal of the company’s petition was a transparent attempt to circumvent the statutory requirement that a final decision be made within 90 days. The court stated, “Marquette had a right to a hearing and to a final decision within 90 days from filing the petition, absent their own delay or other extraordinary circumstances not present in this case.” (84 Ill. App. 3d 434, 439, 405 N.E.2d 512, 516.) The court reversed the Board’s decision and held that the permit was deemed to have been issued 90 days after the petition for a hearing was filed.

In the present case, Pioneer does not contend that the Board’s failure to take final action within 90 days was an attempt to circumvent the requirements of section 40 of the Act. The record indicates that the Board was conscientious in attempting to comply with the 90-day limit. Furthermore, present in this case are what the court in Marquette characterized as “extraordinary circumstances.” In order to comply with the 90-day limit, the .Board would have had to violate the circuit court’s preliminary injunction. We hold that the preliminary injunction, while it was in effect, tolled the 90-day limitation for Board action.

The Board entered a final order within the 90-day limitation as tolled by the preliminary injunction, and, therefore, Pioneer was not entitled to deem its permit issued under section 40 of the Environmental Protection Act.

The appeal of the Attorney General in cause No. 82 — 180 is dismissed.

The order of the Pollution Control Board in cause No. 82 — 190 is affirmed.

WEBBER, P.J., concurs.

JUSTICE TRAPP,

concurring in part and dissenting in part:

In Pioneering Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414, I dissented from the determination upon review of declaratory judgment that the village of Naplate was bound by a finding of the trial court that that village could not rescind a consent to the issue of a permit for a hazardous waste dump. There the village was not a party in declaratory judgment. In the light of the facts that the Environmental Protection Agency, an asserted representative of the village, had issued a permit, had taken no step to rescind or modify it, and had written that the Agency would express no view upon the issue of rescission, it did not seem fair or appropriate to hold that the Agency was a proper and qualified representative who could bind the village.

In this case the village of Naplate joins in seeking administrative review of the order of the Pollution Control Board. In this record, that order discloses that there was no administrative decision upon the issue of rescission by the village of its prior consent. The relevant context of the order includes:

“Section 21(g) of the Act prohibits a hazardous waste disposal site located within a mile and a half of a municipality in a county of 225,000 or more without a waiver from the governing body, or within a thousand feet of a private well or the existing source of a public water supply.
The Village of Naplate, therefore, had to have waived the requirement for a permit to be granted, and it did in fact execute such waiver. There is no evidence in the record before the Board that it acted to rescind that waiver prior to the Agency’s decision to grant the permit (see R. 531 — 537). As noted above, the scope of the Board’s review of permit appeals is limited to the record before the Agency at the time of decision. Therefore, any later rescission is not presently before the Board and the Board need not reach the question as to what effect a rescission subsequent to the granting of developmental permit would have on the granting of an operating permit after a purported rescission.” (Emphasis added.)

By reason of the absence of an administrative order I would dismiss the proceedings for administrative review by the village of Naplate.

I concur with the opinion in its other aspects.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONALD TERRY et al., Defendants-Appellants.
    First District (2nd Division)
    No. 81—2597
    Opinion filed March 8, 1983.
    Jenner & Block, of Chicago (Keith F. Bode and C. John Koch, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Louis F. Stalzer, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendants, Duane Terry and his brother, Ronald Terry, were indicted for murder and armed violence. In a jury trial, both defendants were found guilty as charged and judgment was entered accordingly. On their convictions for murder, Duane Terry was sentenced to serve 24 years in the Department of Corrections and Ronald Terry was sentenced to 20 years. No sentences were imposed on the armed violence judgments. Defendants appeal contending that they were not proved guilty beyond a reasonable doubt; that the trial court improperly instructed the jury on the law of accountability; that the prosecutor made improper and prejudicial comments during closing argument; and that the State’s use of peremptory challenges during voir dire deprived defendants of a fair and impartial jury. For the reasons hereinafter stated, we reverse defendants’ convictions and remand the cause for a new trial.

Timothy Davis was murdered on March 27, 1981. The State’s evidence against the defendants consisted primarily of signed court-reporter statements defendants gave to an assistant State’s Attorney on March 28, 1981, the day after the offense. In those statements defendants related that early in the morning on March 27, 1981, they were at Priscilla Lyons’ apartment at 4525 South Federal in Chicago together with the victim, Timothy Davis, Ricky Myers and Bernard Lash. All of the men present were members of the Disciples street gang.

While they were in the apartment, Ronald Terry and Timothy Davis got into an argument and punched each other. After the fight, Ronald told Ricky Myers, “We was [sic] going to violate him,” meaning Timothy Davis. Duane heard what his brother said, and Myers replied that he (Myers) was going to “kill a nigger later tonight.” There is no evidence that Duane heard what Myers said. Both defendants saw Myers pick up a knife in the apartment. Ronald Terry knew that Myers was going to “[c]ut Timothy Davis with the knife.” Priscilla Lyons then ordered everyone to leave her apartment. Both defendants, Bernard Lash, Ricky Myers and Timothy Davis went out into the hallway outside the apartment. Duane Terry said the group planned on “violating” Davis in the hallway and that Davis knew it. Duane held Davis as the men stepped into the hallway. Both defendants told the prosecutor that they “violated” Davis, Duane by pulling and hitting him and Ronald by beating him in the face with his hands. Duane held Davis while he was being beaten. Ricky Myers then tapped Ronald on the shoulder and when he moved to one side, Myers stabbed Davis once in the left side of his chest and once in the back of the head. Davis later died of the stab wound to his chest, which punctured the left thorax.

Bernard Lash ordered Ronald to “get rid of the knife” and he disposed of it in the incinerator room. Ronald later retrieved the knife and brought it back to Priscilla Lyons who washed the blood off of it. The police recovered the knife and Ronald identified it for the prosecutor when he gave his statement. Ronald also found Myers’ bloodstained jacket in the hallway and gave it to Priscilla who washed it.

I

Defendants contend that they were not proved guilty beyond a reasonable doubt of murder. We cannot agree. We have set forth the evidence presented at trial and will not restate that evidence here. We have reviewed the record and are satisfied that there was sufficient evidence for the jury to conclude that both defendants aided and abetted Ricky Myers in murdering Timothy Davis.

II

Defendants next contend that the trial court improperly instructed the jury on the law of accountability. The two instructions complained of are as follows:

“A person is responsible for the conduct of another person when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of a crime.
A person commits the crime of murder who himself or one for whose conduct he is responsible, kills an individual if, in performing the acts which cause death, he, or one for whose conduct he is responsible, intends to kill or do great bodily harm to that individual; or he, or one for whose conduct he is responsible, knows that such acts will cause death to that individual; or he, or one for whose conduct he is responsible, knows that such acts create a strong probability of death or great bodily harm to that individual.”

The first instruction tracks the language of Illinois Pattern Jury Instruction, Criminal, No. 5.03 (1968) (hereinafter cited as IPI Criminal) except for the second to the last word which was changed from “the” to “a.” We believe this change was erroneous because, under the instruction given, the jury could have found defendants responsible for Ricky Myers’ stabbing of the victim merely upon proof that they knowingly aided and abetted him in committing a battery. That this does not accurately set forth the law of accountability is evident from an examination of the revised instruction 5.03:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.” IPI Criminal No. 5.03 (2d ed. 1981).

Under this instruction, defendants could not be found guilty of murder unless the jury was satisfied that in committing a battery on the victim, defendants had the intent to promote or facilitate the murder and knowingly aided or abetted Myers in committing murder. (See People v. Heflin (1978), 71 Ill. 2d 525, 542-43, 376 N.E.2d 1367.) The effect of the instruction in the instant case was that the jury could have found defendants guilty of murder on an accountability theory without a determination that Myers’ act of stabbing Davis was “in furtherance of” the battery defendants admittedly committed. (People v. Kessler (1974), 57 Ill. 2d 493, 497, 315 N.E.2d 29; People v. Ruiz (1982), 94 Ill. 2d 245, 254-55.) Such a finding is not in accord with the law. Where both the instruction defining murder and the issues instruction incorporated the concept of accountability which was improperly explained in the instruction on accountability, we cannot conclude that the error in the definition of accountability was harmless. For that reason, defendants’ convictions must be reversed and the cause remanded for a new trial. In light of this disposition, it is unnecessary to reach defendants’ other contentions.

Reversed and remanded.

STAMOS and HARTMAN, JJ., concur.