text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DALLAS J. GRESHAM, Defendant-Appellant.
    Fourth District
    No. 17204
    Opinion filed March 3, 1982.

      Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and James K. Horstman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

We deal here with bootstrapping offenses into more serious convictions and the double enhancement of sentence.

The result is a mixed bag.

We affirm in part, reverse in part and remand.

Gresham was convicted by a jury of armed violence, aggravated battery, and two counts of unlawful use of weapons. He received concurrent sentences of 18 years’ imprisonment for armed violence and 8 years on one of the unlawful use of weapons counts.

On appeal, defendant argues: (1) that the crime of armed violence may not be predicated upon the felony offense of aggravated battery with the use of a deadly weapon; (2) that the trial court erred in not severing that count of the indictment charging him with unlawful use of weapons within five years of his release from the penitentiary, following his conviction of a felony, from the trial on the other counts; and (3) that the court erred in imposing an extended-term sentence under section 5 — 5—3.2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)). For reasons hereinafter set forth, we vacate defendant’s conviction and sentence on the offense of armed violence, remand for sentencing on the conviction of aggravated battery, vacate the extended-term sentence on the conviction for unlawful use of weapons by a felon, and remand for resentencing on counts IV and V.

The facts of the instant case are not in dispute. On the evening of December 2,1980, defendant, Fred Hildebrandt, Bob Nicholas, and Glen Colaw had arranged to play basketball at a local church in Bloomington, Illinois. After stopping at defendant’s grandmother’s house, where he resided, to pick up a basketball, the four proceeded to the school. Before they arrived, Colaw noticed a Bloomington police officer approaching and pointed this out to defendant, who at the time was in violation of his parole on a prior robbery conviction and had in his possession a sawed-off shotgun. Seeing the police officer, defendant ran from the group back to his grandmother’s house. Later in the evening defendant received a call from Nicholas asking him to meet Nicholas and Hildebrandt at the Central Catholic School on the corner of Chestnut and Roosevelt Streets. Defendant returned to the area where the rendezvous was to occur but none of the persons were present. After waiting approximately 30 minutes, defendant decided to return home.

During this time, Hildebrandt and Nicholas returned to defendant’s grandmother’s house to find that defendant was also not there and had left to meet them at the school. Hildebrandt and Nicholas then proceeded to walk back to the Central Catholic School. Defendant testified that while he was walking toward his grandmother’s house, he saw two unidentified men approaching. Defendant stated that one of the men said, “You have come to the wrong place at the wrong time,” and the other began moving toward him. He testified that he thought the men were going to attack him and so, in self-defense, fired the sawed-off shotgun. Defendant stated that he did not recognize the men due to the darkness and the manner in which they were dressed, and felt his actions were justified under the circumstances. After the shooting, defendant learned that the person he had shot was Mr. Hildebrandt, the person he had arranged to meet. Defendant then ran back to his grandmother’s house. Hildebrandt summoned a local resident to call an ambulance and was then taken to the hospital. Defendant was subsequently arrested at his grandmother’s, and the sawed-off shotgun was located there.

I

Defendant’s first contention on appeal is that it was improper for a conviction and sentence to be entered on the crime of armed violence when the predicate felony offense is aggravated battery with a dangerous weapon. In support of this contention he relies solely upon the recent decision of People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627. The State, however, asserts the defendant has waived this issue since he did not raise it below and, secondly, that defendant’s conviction for armed violence was not based upon the offense of aggravated battery with the use of a deadly weapon but was instead predicated upon the offense of an aggravated battery occurring at a public place.

In Harón, defendant was charged with one count of armed violence, one count of unlawful use of weapons, and two counts of aggravated battery. The statute proscribing armed violence provides:

“Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2.)

The armed violence charge in Harón was predicated upon the felony offense of aggravated battery with the use of a deadly weapon. On appeal from the ruling of the circuit court finding section 33A — 2 unconstitutional, the Supreme Court of Illinois affirmed the order dismissing the indictment against Harón for armed violence but refused to hold the statute unconstitutional. The court analyzed similar statutory provisions from a number of jurisdictions and concluded that the armed violence statute should not be construed to allow prosecution for armed violence when the predicate felony offense is based on section 12 — 4(b)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)), which has already been enhanced from a misdemeanor to a felony by the presence of a deadly weapon. The Harón court stated:

“Our review of the language of the statute and the authorities leads us to conclude that the General Assembly did not intend that the presence of a weapon serve to enhance an offense from misdemeanor to felony and also to serve as the basis for a charge of armed violence. In our opinion the requirement of section 33A — 2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony without enhancement by the presence of a weapon.” (85 Ill. 2d 261, 278, 422 N.E.2d 627, 634.)

In the present case, defendant was convicted on count I which charged that defendant 0 0 on or about the second day of December, 1980, at or about 900 N. Roosevelt, Bloomington in the County of McLean and State of Illinois, committed the offense of Armed Violence in that he knowingly while armed with a dangerous weapon, committed an aggravated battery upon Fred Hildebrandt, by shooting him with a shotgun o » a» ThUS) defendant’s conviction would clearly fall within the construction of the statute given it by Harón and entitles the defendant to a vacation of the conviction and sentence entered on the armed violence count.

The State, however, seeks to avoid the rule of the Harón case by asserting the defendant has waived the issue by failing to raise it in his post-trial motion and further by arguing that defendant was not charged with deadly weapon aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(1)) as a predicate felony offense but was instead charged with public place aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(8)), which does not present the double enhancement problems prohibited by Harón.

But we reject the argument that defendant’s failure to allege that the indictment did not state an offense in his post-trial motion is a waiver of the issue. An indictment which does not charge an offense is subject to dismissal at any time and is not waived by failure to object at trial. (People v. Billingsley (1966), 67 Ill. App. 2d 292, 213 N.E.2d 765; People v. Spain (1974), 24 Ill. App. 3d 377, 321 N.E.2d 520; Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(b).) In Billingsley, defendant was charged with the offense of deceptive practices (Ill. Rev. Stat. 1963, ch. 38, par. 17 — 1(d)) and challenged on appeal, but not at trial, the sufficiency of the complaint to charge the offense, since an essential element of the offense, intent to defraud, was not included in the complaint. The court held that defendant had not waived the issue and reversed his conviction. There the court stated:

“The failure to charge an offense and the obvious harm to the defendant resulting therefrom, is the kind of defect involved in due process of law and it cannot be waived. Such defect may be attacked at any time, and may be attacked for the first time in this court. [Citation.]” (67 Ill. App. 2d 292, 300, 213 N.E.2d 765, 770.)

We thus conclude that the failure of the indictment to state an offense may be attacked in this court and is not waived by the defendant’s failure to raise this issue in his post-trial motion.

The State also argues that Harón does not apply since defendant was not charged with deadly weapon aggravated battery as a predicate felony offense but instead was charged with public place aggravated battery under section 12 — 4(b)(8) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(b)(8)). This contention is based upon the fact that the indictment alleged that the crime occurred at 900 North Roosevelt in Bloomington which the evidence at trial showed was a public place or way. This contention is also without merit. The indictment specified that defendant was charged with aggravated battery under section 12 — 4(b)(1), the jury instructions were based upon deadly weapon aggravated battery and the prosecution advanced this theory of aggravated battery in its closing argument. We decline the State’s invitation to uphold defendant’s conviction on the basis of an offense with which he was not charged and which was not argued. It is clear that an appellate or reviewing court may not uphold a conviction for an offense which was not charged or proven at trial even though under the evidence, defendant could have been charged and convicted of the alternate offense. Cole v. Arkansas (1948), 333 U.S. 196, 92 L. Ed. 644, 68 S. Ct. 514; Presnell v. Georgia (1978), 439 U.S. 14, 58 L. Ed. 2d 207, 99 S. Ct. 235.

In Cole, the defendants were charged at trial with violating one section of an Arkansas statute proscribing persons from acting in concert to encourage, promote, or aid the preventing of persons from engaging in a lawful occupation. On appeal to the Arkansas Supreme Court, their convictions for violating this section of the statute were reversed since the information was insufficient to charge a violation of that section. Nevertheless, the Supreme Court of Arkansas upheld the sentence and conviction because, under the evidence, a conviction could have been obtained under another section proscribing the use of force or violence to prevent persons from engaging in lawful occupations. On appeal, the United States Supreme Court reversed the conviction under the statute which was neither charged nor given to the jury and concluded that “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. [Citation.]” 333 U.S. 196, 200-01, 92 L. Ed. 644, 647-48, 68 S. Ct. 514, 517.

We therefore vacate defendant’s conviction and sentence for armed violence in count I of the indictment on the authority of Harón and remand for resentencing on the conviction for aggravated battery upon which no sentence was entered. People v. Scott (1977), 69 Ill. 2d 85, 370 N.E.2d 540.

II

Defendant next argues that it was an abuse of the trial court’s discretion to refuse to sever the count charging him with unlawful use of weapons within five years of his release from the penitentiary, following his conviction of a felony (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(b)), from the trial on the other charges. In Illinois, the statute prohibiting unlawful use of weapons is in the nature of a recidivist statute such that if a defendant is convicted of any violation of section 24 — 1(a)(1) through (10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(1) through (10)) and also has a prior felony conviction he can receive an enhanced sentence. In such a case, where the State proceeds on a charge under section 24 — 1(b), evidence of the prior felony is then admissible to prove the substantivé offense. In a trial where the enhanced unlawful use of weapons charge is also tried with other alleged offenses, the jury thus will hear the evidence of the defendant’s prior weapons conviction. Where such evidence is then before the jury even if for valid reasons, the danger arises from the jury’s use of this prior conviction in the deliberation of defendant’s guilt or innocence on the other alleged offenses. (See People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695.) To alleviate the likelihood of prejudice, resulting when enhanced charges are joined with other charges, the supreme court in People v. Edwards (1976), 63 Ill. 2d 134, 345 N.E.2d 496, held that a refusal to sever involved a significant risk of prejudice which was not outweighed by the State’s interest in prosecuting all charges against the defendant at the same time. The court held that the joinder of a charge of armed robbery with the charge of felonious unlawful use of weapons created such a strong possibility of prejudice that it was an abuse of the trial court’s discretion to refuse to sever.

Such considerations, however, do not arise in the case at bar since defendant failed to raise this issue in his post-trial motion, and thus it is waived. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Ill

As a result of defendant’s conviction on count V of the indictment which charged him with a violation of section 24 — 1(a) (4) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1(a)(4)) within five years from his release from the penitentiary, following a felony conviction, he was given an extended-term sentence under section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2). The extended-term sentence was imposed by virtue of section 5 — 5—3.2(b) (1) of the Unified Code of Corrections which provides, in part:

“(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5 — 8—2 upon any offender who was at least 17 years old on the date the crime was committed:
(1) When a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years, excluding time spent in custody, and such charges are separately brought and lried and arise out of different series of acts.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b) (1).)

Defendant argues that using his previous 1976 felony conviction for robbery to charge him with the unlawful use of weapons under section 24 — 1(b) of the Criminal Code, which thus enhances the offense from a misdemeanor to a felony, and again using the same prior felony to impose an extended-term sentence under section 5 — 5—3.2(b) of the Unified Code of Corrections, constitutes double enhancement, prohibited by the decision of People v. Hobbs (1981), 86 Ill. 2d 242, 427 N.E.2d 558.

Again, the State argues that defendant has waived this issue, though should the issue not be deemed waived, they concede error in imposing the extended-term sentence.

Though defendant did not argue at the sentencing hearing that an extended-term sentence was improper, we take notice of the substantial error that occurred in sentencing defendant to an extended term. Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)) permits this court to take notice of errors or defects affecting substantial rights although they were not brought to the attention of the trial court. The sentence imposed by the court in excess of its statutory authority thus resulted in a sentence of 3 years greater than the possible maximum sentence of 5 years for a Class 3 felony (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(6)) and as such deprives the defendant of a substantial liberty interest. We therefore reject the argument that defendant has waived consideration of this issue. People v. Nodal (1980), 89 Ill. App. 3d 538, 411 N.E.2d 1087; People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641; People v. Hayes (1977), 54 Ill. App. 3d 617, 370 N.E.2d 68.

In Hobbs, defendant was convicted of theft under $150 with a prior theft conviction, a Class 4 felony (Ill. Rev. Stat. 1979, ch. 38, par. 16A — 10(2)) and was given an extended-term sentence under section 5 — 5—3.2(b) of the Unified Code of Corrections. Defendant argued that using the prior theft conviction to elevate the misdemeanor to a felony and then using the same prior theft conviction to impose an extended-term sentence was not consistent with the legislative intent of section 5 — 5—3.2(b) (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5 — 3.2(b)). The court agreed with defendant, and concluded that the prior conviction could not be used to doubly enhance the consequences of defendant’s conviction of the offense, first to elevate the offense to a felony and then to impose an extended term based on the prior felony. Such a result — concluded the court — was not intended by the legislature since it was inconsistent with the section’s requirements that the charges be “ ‘separately brought and tried and arise out of different series of acts.’ ” 86 Ill. 2d 242, 246, 427 N.E.2d 558, 560.

In the instant case, count V of the indictment upon which defendant was convicted and sentenced to- an extended term charged defendant with a violation of section 24 — 1(a) (4) within five years of his release from the penitentiary, following a felony conviction. Thus defendant’s prior 1976 robbery conviction was used first to elevate the offense from a Class A misdemeanor to a felony and then again to impose extended term sentence. Defendant’s felonious unlawful-use-of-weapons conviction did not arise out of a “• ‘different series of acts’ ” from the prior robbery conviction, and as a result the trial court exceeded its authority in imposing the extended-term sentence. We therefore conclude, on the basis of the construction given section 5 — 5—3.2(b)(1)) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(1)) by Hobbs, that defendant’s extended-term sentence was improper and should therefore be vacated. Accordingly, the sentence on count V is vacated, and the cause is remanded to the trial court for resentencing on counts IV and V.

For the reasons given, that part of the conviction and sentence for armed violence in count I is reversed and remanded for sentencing on the conviction of aggravated battery under count II, and the defendant’s sentence on count V is vacated and the cause is remanded for resentencing on counts IV and V. The conviction under counts II and IV are affirmed.

Affirmed in part; reversed in part and remanded with directions.

GREEN, P. J., and TRAPP, J., concur.


source: Caselaw Access Project

author: JUSTICE LONDRIGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKY LYNN DAUGHERTY, Defendant-Appellant.
    Fourth District
    No. 17388
    Opinion filed March 11, 1982.
    Rehearing denied March 26, 1982.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J.- Biderman and Robert G. Frederick, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

Defendant pleaded guilty to criminal damage to property in excess of $150. He was sentenced to two years’ probation and ordered to make restitution. After the probation was revoked for the second time, defendant was sentenced to 30 months’ imprisonment.

Defendant’s attorney gave the factual basis for the plea. He stated that on July 19, 1978, a Volkswagen was left by its owners, Mark and Sandra Edgar, near a reservoir outside of Camp Point, Illinois. Defendant admitted taking a wrecker from his place of employment and removing the vehicle to another location. When the vehicle was found by the police, it was in the lake, had been damaged by fire and had several broken windows.

At the sentencing hearing, defendant testified that he had left the Volkswagen sitting on a hill. The hill was steep with a dirt mound about three feet high at the bottom of the hill. Defendant admitted that on the night in question he had been drinking heavily and taking medication. The court sentenced defendant to two years’ probation and ordered that he make restitution to the victims.

A restitution hearing was held on May 10, 1979. A representative of the Edgars’ insurance company testified that the Edgars’ vehicle had been in an accident about one month prior to the crime and had been repaired. The car was in excellent condition prior to the crime. He estimated the value of the Volkswagen, prior to the damage incurred, at $4,600. The cost of repairing the car would have exceeded its value. The insurance company paid $4,600 to the Edgars.

Defendant testified that he saw the vehicle at the reservoir outside of Camp Point; the windows of the car were down, and the keys were in the ignition. He moved the vehicle to an area near the Triple S Mine and left it there. He stated that the car had not been damaged by fire and that he did not know whether the car had any dents. He claimed that he did not damage the vehicle nor did he set it on fire.

The insurance representative testified in rebuttal. He testified that he would subtract $1,500 from his company’s claim, given defendant’s testimony that the broken windows and dents had not been caused by the defendant. The court ordered defendant to make restitution to Economy Fire and Casualty Company in the sum of $1,750.

A petition to revoke probation was filed on January 12,1981, alleging that defendant had committed the offense of resisting a police officer. Following a hearing on January 23, 1981, the court found that the defendant violated his probation by committing the offense charged. Defendant was sentenced to 18 months’ probation with the first four months of that sentence to be served in the county jail.

On May 29, 1981, a petition to revoke probation was filed, alleging that defendant had committed the offense of unlawful possession of less than 2.5 grams of cannabis. Following a hearing held on July 29,1981, the court found that defendant had violated his probation by committing the offense charged. Defendant was sentenced to 30 months’ imprisonment. The trial court further ordered that the “previous restitution order remains in full force and effect.”

Defendant argues three points on appeal: (1) the sentence imposed by the trial court amounted to an abuse of discretion; (2) the order of restitution imposed is void because the trial court exceeded its authority in ordering restitution to be paid to the victims’ insurance company rather than the victims themselves; and (3) the trial court erred in ordering defendant to pay restitution where the damages were not proximately caused by his acts.

The imposition of a particular sentence by the trial court will not be overturned by a reviewing court absent an abuse of discretion. The trial court’s decision with regard to sentence is entitled to great weight because the trial judge had an opportunity to observe and consider the defendant’s credibility, demeanor, mentality and a host of other factors. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

The offense of criminal damage to property valued in excess of $150 is a Class 4 felony and is punishable by imprisonment for not less than 1 year and not more than 3 years. Defendant had a record of previous misdemeanor convictions for driving while license suspended and for theft. Defendant committed two other crimes while on probation. After the first offense, resisting a police officer, defendant was resentenced to probation. Four months later he committed another offense for which his probation was revoked a second time.

After examining the record in this case, we conclude that the trial court did not abuse its discretion in sentencing the defendant to 30 months’ imprisonment.

Defendant next argues that the trial court exceeded its authority in ordering him to pay restitution to the victims’ insurance company. The State argues that defendant failed to raise this point by filing a timely notice of appeal.

The supreme court recently dealt with a similar situation in In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910. Several minors were found to be delinquent, made wards of the court and sentenced to an indefinite term of probation. The minors appealed on the ground that a disposition of probation must be for a definite period of time. The State argued that the minors had failed to file timely notices of appeal and were barred from attacking the judgment.

The supreme court held that a void order may be attacked at any time. Where a court having jurisdiction over the person and the offense charged imposes a sentence in excess of what is authorized by statute, the excess portion of that sentence is void. Thus, the court concluded, the minors could raise the issue of the trial court’s authority to impose an indefinite term of probation.

In the present case, defendant argues that the trial court exceeded the authority granted to it under the statute by forcing him to pay restitution to the victims’ insurer. This is an attack on the authority of the trial court to enter such an order, as opposed to an attack on the order itself. We conclude that we possess jurisdiction to decide this issue.

Section 5 — 5—6 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—6) provides that if restitution is ordered as a part of the disposition of the case, “the defendant shall make restitution to the victim in accordance with” certain requirements set out in the statute (emphasis added.)

We have been unable to find any Illinois case which speaks directly to the question of who is a victim under section 5 — 5—6. In People v. Wilson (1980), 87 Ill. App. 3d 544, 408 N.E.2d 1209, the State effectively conceded that the insurance company was not “the victim” as the phrase is used in section 5 — 5—6. In People v. Knowles (1980), 92 Ill. App. 3d 537, 414 N.E.2d 1322, this court upheld an order of restitution directing a convicted arsonist to pay a sum of money in restitution to the college whose dormitories were damaged by his acts. The court stated that the amount in question was payable to the college, not to the residents of the buildings or to insurers.

We choose to follow the implied holding of Knowles that an insurance company is not “the victim” within the meaning used in section 5 — 5—6. To include insurance companies within the protections of section 5 — 5—6 would significantly broaden the reach of the statute. Such a change is properly a matter requiring legislative, not judicial action. Nothing in this opinion should read to limit the insurance company’s right of subrogation with regard to any amount paid to the Edgars by defendant under the order of restitution.

Defendant argues that the trial court erred in ordering him to pay restitution where the damages were not shown to be proximately caused by his actions. We lack jurisdiction to decide this issue. When a defendant fails to file a notice of appeal within 30 days from the date of the original judgment entered on his guilty plea, a reviewing court lacks jurisdiction to examine the judgment except where the judgment is void. (People v. Stueve (1977), 66 Ill. 2d 174, 361 N.E.2d 579.) The judgment in this case was void only to the extent that it ordered the defendant to pay restitution to the victims’ insurance company instead of to the victims themselves. In all other respects, the judgment entered was within the power conferred on the trial court by statute. Defendant, by failing to file a timely notice of appeal, has lost his right to challenge the amount of money he is required to repay to the victims under the order of restitution.

Under Supreme Court Rule 366 (Ill. Rev. Stat. 1979, ch. 110A, par. 366), this court has the power to “make any order that ought to have been given or made” as the circumstances of the case may require. In the interests of judicial economy, we have elected to modify that portion of the order directing that restitution be made to the Edgars’ insurance company instead of remanding it for the circuit court to do so. The judgment of the trial court is hereby modified to provide that defendant shall make restitution to Mark and Sandra Edgar, not to the Edgars’ insurance company. The remainder of the judgment of the trial court is affirmed.

Affirmed as modified.

GREEN, P. J., and WEBBER, J„ concur.


author: JUSTICE WEBBER

text:
      In re SEPTEMBER 1981 GRAND JURY.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ROBERT L. COHN, Respondent-Appellant.)
    Fourth District
    No. 17676
    Opinion filed February 18, 1982.
    Robert Weiner, of Springfield (John S. Weiner, of counsel), for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Stuart H. Shiffman, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE WEBBER

delivered the opinion of the court:

This appeal presents an enigmatic question: to what extent may one who is a suspect only in a homicide case be required to provide the State with blood and hair samples prior to being charged with the offense?

On September 6, 1981, at about 11:45 p.m., the body of Jean Cohn, estranged wife of Robert Cohn, the appellant, was discovered in her automobile about 3% blocks from her residence in Springfield. Death was caused by strangulation. The police went to the residence where they found the appellant tending the couple’s children. Although they were apparently living apart, appellant would come to the home to care for the children while Jean worked at a Springfield hospital.

Upon being advised by the police of his wife’s death, appellant stated that he had arrived at the residence at 9:53 p.m. and had remained there since that time. He further stated that the decedent had left for work at about 10:10 p.m. One of the officers observed that the appellant had some superficial scratches about his hands and that his shoes appeared to be damp and spotted with grass clippings. A witness who was at the residence next door stated to the police that he had seen appellant arrive in a pick-up truck at about 10:45 p.m.

During the morning hours appellant was taken to police headquarters. He was wearing a light green windbreaker jacket with a tan lining. The jacket had attached to it a red and white volunteer fire department patch. Fingernail scrapings from the body of the decedent revealed green, tan, red and white fibers. Also, the scrapings contained a quantity of blood and hair. No testing was done on any of these items because of the limited quantity found and the lack of samples for comparison.

While the record is sketchy on the point, it appears that appellant was not arrested or detained but released. It is established, and admitted by the State, that he has never been charged with the offense; no criminal information or complaint has ever been filed; no indictment has ever been handed down by a grand jury; no evidence has ever been presented to a grand jury. The record shows that a grand jury had been impaneled on September 17, 1981, but had been excused until October 22, 1981. Thus, at the time of the filing of the first motion, as described below, the grand jury was not even sitting, although the case was filed in the circuit court of Sangamon County under the caption “In re September 1981 Term Grand Jury.” The additional caption “The People of the State of Illinois v. Robert L. Cohn” was added by appellant’s counsel for the purposes of appeal as a method of designating the parties.

On October 19, 1981, the State’s Attorney of Sangamon County filed in the circuit court of that county an instrument captioned as described above and entitled “Motion for Disclosure to Prosecution.” The motion purported to sound under Supreme Court Rule 413 (73 Ill. 2d R. 413). It was served on the appellant who filed a special and limited appearance contesting the jurisdiction of the court. The basis was that no adversary proceedings were pending and that Rule 413 is limited by Supreme Court Rule 411 (73 Ill. 2d R. 411) providing that the disclosure rules apply only after an accused is charged with an offense. Over objection of the appellant the State was granted leave to file an amended motion. This was done on October 27,1981. The amended motion still purported to sound under Rule 413 and was supported by an affidavit of a police officer. The affidavit recited essentially the facts as outlined above; i.e., discovery of the body, appellant’s statement of times, witness’ statement of time, presence of dampness and grass cuttings on appellant’s shoes, presence of fibers, blood and hair under the fingernails, delay in testing.

Appellant’s special and limited appearance stood to the amended motion and the trial court held a hearing on November 3, 1981. It overruled the special and limited appearance, found that it had jurisdiction and that probable cause existed for the taking of blood and hair samples from the appellant. It then ordered appellant to appear at a Springfield hospital for the purpose of taking of the samples under medical supervision.

Appellant appealed that order to this court on the same day, November 3,1981. The State filed a motion to dismiss the appeal for lack of an appealable order and that motion was allowed by this court. Thereafter, the State filed in the circuit court of Sangamon County a petition for rule to show cause against appellant for his refusal to submit to the taking of samples. A hearing was held on the petition on December 18,1981, and on December 21, 1981, the trial court entered an order of contempt, requiring appellant to be jailed until he complied with the order. Notice of appeal was filed December 22,1981, and on December 23,1981, appellant filed a motion in this court for revocation of the circuit court’s order or in the alternative for a stay pursuant to Supreme Court Rule 609(c) (73 Ill. 2d R. 609(c)). This court denied the revocation but allowed the stay conditioned on a bond and ordered an expedited briefing schedule.

The precise basis for the November 3 order is cloudy. It will be remembered that both the original motion and the amended motion were brought under Supreme Court Rule 413 and in theory the written orders emanating therefrom are likewise based on the rule. However, it appears from the record that both the trial judge and the State have retreated from that position. In making his ruling the trial judge stated:

«o o » It seems to me the question is at this point whether the affidavit is sufficient to support the sort of order that the State requests, whether that is done under Supreme Court Rule 413 or in effect is a request for a search warrant to allow the taking of blood, and after having reviewed the affidavit which has been filed and all the other documents which have been filed in this case, I am of the opinion and find at this time that the affidavit and the records in the case do support a finding of probable cause of the issuance of an order requiring the defendant or the focus of the investigation, Robert Cohn, to submit to blood and hair samples requested, whether that is in the nature of discovery under 413 or in the nature of a search warrant I think is immaterial.”

The State’s position is best summarized from a statement in its brief as follows:

“Whether by statute, or by the inherent power of the court, it is clear that under certain limited conditions evidence may be obtained from an individual not yet under arrest or charged with an offense. Surely there are instances in which a strong showing of need can be made, especially when diligent investigation has not produced sufficient evidence to justify the arrest of a particular individual but yet has established the likelihood of substantial progress in solving the case if identification procedures are employed against a suspect or a group of suspects.”

It would thus appear that the State has abandoned any claim under Rule 413, but rests on a perceived inherent power in a trial court to require the production of evidence by a suspect prior to his being charged. At oral argument the State conceded that there was no probable cause to charge the appellant, but insisted that there was “probable cause” to link him to the offense and that this was sufficient to confer jurisdiction upon the circuit court to require him to give the requested samples. Exactly what limits exist, if any, on this lesser variety of probable cause is not explained.

Appellant argues that no authority exists under the discovery rules until after one has been charged with an offense and that anything else is a violation of his rights under the fourth and fourteenth amendments to the United States Constitution and article I, section 6, Constitution of Illinois 1970, relating to search and seizure.

Two matters may be briefly disposed of. First, no authority existed for the order under Rule 413. The criminal discovery rules (73 Ill. 2d Rules 411-415) are expressly and unequivocally made applicable only after an accused has been charged with an offense. (Compare People v. Santiago (1977), 53 Ill. App. 3d 964, 369 N.E.2d 125.) Second, the State has argued that no search has yet taken place and therefore there has been no constitutional violation. The protection of the search and seizure provision of the United States and Illinois constitutions exist not only to redress past intrusions by way of the exclusionary rule, but also to prevent threatened intrusions at the investigatory stage. Davis v. Mississippi (1969), 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394.

The Supreme Court has grappled with the problem of the production of evidence by an accused at the investigatory stage. In Davis, reversing, the court indicated that the taking of fingerprints would probably offend the fourth amendment. Mr. Justice Harlan indicated it probably would not. The concern appeared to be more with the dragnet procedures used than with the actual taking of the prints. In Schmerber v. California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826, the court upheld the taking of blood without a warrant because of the exigent circumstances that the alcohol content would be metabolized with the passage of time. In Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000, the court upheld the taking of fingernail scrapings. The suspect had voluntarily appeared at police headquarters concerning the strangulation death of his wife. He had what appeared to be dried blood on his fingers and attempted to rub off the substance. Again, as in Schmerber, the exigent circumstances allowed the taking. In United States v. Dionisio (1973), 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764, the court held that a witness under subpoena to appear before a grand jury and give a voice exemplar could be compelled to do so without constitutional infringement. The rationale was that a voice is a physical characteristic which is constantly exposed to the public and therefore not subject to fourth amendment protection. A similar result was reached in United States v. Mara (1973), 410 U.S. 19, 35 L. Ed. 2d 99, 93 S. Ct. 774, concerning handwriting and printing exemplars.

Thus far the court appears to have fashioned two exceptions to the fourth amendment protection: (1) exigent circumstances wherein destruction of the evidence is reasonably apparent, or (2) physical characteristics which may be observed by anyone without a search.

We need not tarry over the first of these in the instant case. It is admitted by the State that no exigent circumstances exist here. Six weeks elapsed from the discovery of the body to the filing of the first motion. This alone would negate any such contention. The State’s case must then rest on the alternative exception: demonstration of observable physical characteristics.

Since the Supreme Court appears to be fashioning an ad hoc approach to the matter, it is difficult to say how far it may ultimately go. The division of the court over the matter of fingerprints in Davis demonstrates the difficulty in such line-drawing. It must be constantly borne in mind that we are dealing with a pre-arrest, pre-charge situation. The taking of specimens post-arrest, post-charge, or as incident to the lawful arrest, are of little assistance here.

The rule, as developed thus far, appears to be that there is no intrusion, and hence no fourth amendment protection, into an individual’s privacy when he is asked to expose to the authorities that which has been previously exposed to the public at large. (Dionisio.) This would include a voice exemplar (Dionisio), a handwriting exemplar (Mara), a lineup appearance (In re Melvin (1st Cir. 1977), 550 F.2d 674).

The converse must also be taken as doctrine: that which has not previously been exposed to the public is protected. While the color of one’s hair may not be protected, its chemical characteristics are. Clearly the taking of samples of body fluids involves an invasive procedure to obtain something which has not been previously exposed. A peculiar gait, having been exposed to the public, would not be protected, but a physical examination to determine its cause would be. Examples can be endlessly cited.

As applied to the case at bar, we believe that the taking of hair and blood samples is protected. Neither come within the public exposure exception.

Other jurisdictions have been called upon to deal with this situation, but each of them represents a different context, and the cases are not particularly helpful. In State v. Grijalva (1975), 111 Ariz. 476,533 P.2d 533, the Arizona Supreme Court upheld against constitutional attack a State statute authorizing the temporary detention of an individual for the purpose of obtaining evidence of identifying physical characteristics. However, the statute required a magistrate to make a determination that the identification and detention were reasonable. No such statute exists in this State.

In In re Fingerprinting of M. B. (1973), 125 N.J. Super. 115, 309 A.2d 3, the New Jersey court permitted the fingerprinting of all male members of an eighth grade class in connection with a homicide investigation. The court held that the “proceedings below were the functional equivalent of an application for, issuance, and challenge of the validity of a search warrant.” (125 N.J. Super. 115,122, 309 A.2d 3, 6.) Similarly, in People v. Marshall (1976), 69 Mich. App. 288, 244 N.W.2d 451, blood and hair samples were taken from a suspect pursuant to a detention order. The Michigan court found constitutional problems and said, “ * * * other than a search warrant 0 * e, there is no such ‘animal’ in this jurisdiction as a court order authorizing the detention of a suspect for the purpose of a search.” (69 Mich. App. 288, 300, 244 N.W.2d 451, 457.) However, the court went on to find that the detention order was a search warrant.

The State urges us to follow the New Jersey and Michigan precedents and find that the underlying order was the equivalent of a search warrant. We are unable to do so.

Grounds for the issuance of a search warrant are set forth in section 108 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 3.) They require a written complaint stating facts sufficient to show probable cause. Even if the affidavit accompanying the amended motion can be construed as such a complaint, it falls far short of probable cause. It recites only that the appellant’s shoes were wet and spotted with grass clippings, that he claimed not to have left the “residence” after arriving at 9:53 p.m., and that a neighbor observed him arrive at 10:45 p.m. While all this may affect the credibility of the appellant, it falls far short of connecting him with probable cause. No approximate time of death was stated, only the time of discovery of the body. It is not clear what is meant by “residence,” whether it includes only the structure, or the yard, if any. It is axiomatic that probable cause necessarily encompasses something more than mere suspicion. People v. Martin (1979), 70 Ill. App. 3d 36, 388 N.E.2d 278.

The order of the circuit court of Sangamon County directing appellant to appear and give samples of his hair and blood is reversed; the order finding appellant in contempt for violation of that order is vacated; the cause is remanded to that court with directions to release the appellant and discharge his bond.

Reversed and remanded with directions.

MILLS and LONDRIGAN, JJ., concur.


author: JUSTICE MILLS

text:
      In re MARRIAGE OF JOYCE ANN PAULEY, Petitioner-Appellee, and GARY LEON PAULEY, Respondent-Appellant.
    Fourth District
    No. 17321
    Opinion filed March 3, 1982.

      John Naylor, of Naylor, Mueller & Freese, of Bloomington, for appellant.
    Thomson, Weintraub & Thompson, of Bloomington (Alan I. Weintraub, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

Divorce.

Unilateral reduction of child support by the father.

Under the decree here — we reverse and remand.

Facts

Gary and Joyce Pauley were divorced on June 18, 1976. Physical custody of their three sons — Mike, Kevin, and Scott — was awarded to Joyce. With respect to child custody, the divorce decree stated that:

“H shall pay W child support equal to 35% of his net income * * *. [W]hen the oldest child of the parties leaves home or reaches age 18, said child support shall be reduced to 30%; when the second oldest child leaves home or reaches age 18, said child support shall be reduced to 25%; when the youngest child reaches age 18 or leaves home, said child support shall be re-examined by the Court in light of college expenses and other matters. # e #
The Court reserves for future consideration any obligation by H or W with regard to college expenses * *

In September 1977, Mike (the oldest child) became 18 years old and the father reduced support payments to 30% of his net income. In February 1978, the mother petitioned the court seeking additional funds for Mike’s education at Illinois Wesleyan University. The trial court determined that she was entitled to 35% of the father’s net income as child support and as contribution to Mike’s college expenses. The court had found that the mother was not entitled to an amendment or modification of the divorce decree but rather ordered the award pursuant to the terms of the decree which reserved the question of college expenses.

In May 1979, Kevin (the middle son) became 18 years old and the father reduced the support to 30% after Kevin graduated from high school that year. The mother did not contest this reduction. In September 1979, Kevin began residing with his father, who is voluntarily contributing to Kevin’s educational expenses. As a consequence, there is no question on payment with respect to Kevin.

In May 1980, Scott (the youngest child) became 18 years old. His father continued paying 30% until Scott completed high school and then reduced support to 5%. Scott began classes as a freshman at Illinois Wesleyan in August 1980 and on September 11, 1980, his mother filed a petition seeking, inter alia, additional support for Scott and Mike who were both attending college. On February 13, 1981, their mother filed a rule to show cause for past-due child support. An amended petition for rule to show cause alleged that the father’s deficiencies in support payments from 1977 through 1980 amounted to $9,440.11. Of the alleged arrearage, $6,271.56 had accumulated in 1980 which was when the father had reduced payments from 30% to 5%.

The court found that the father was not entitled to reduce support from 30% to 5% and determined that there was an arrearage of $7,715.20 representing the period of time from March 29,1980, to April 2,1981. This amount was reduced to a final judgment against the father.

Issue

The sole point of contention is whether the father was entitled to reduce support payments from 30% to 5% when his youngest son, Scott, graduated from high school. Two arguments are presented that assert he was not entitled to reduce support. First, the trial court interpreted the divorce decree as providing that child support was to be re-examined when Scott turned 18 and was not to terminate at that time. The second argument, made by the mother, is that the 1978 court order raising support from 30% to 35% did not allocate 5% to Mike’s education and 30% to child support but was an unapportioned award which could not be reduced until a court so ordered.

Opinion

The relevant portion of the divorce decree states that “when the youngest child reaches age 18 or leaves home, said child support shall be re-examined by the Court in light of college expenses and other matters.” This language implies that child support was not to terminate automatically. However, this interpretation cannot be sustained when the decree is read in the context of Illinois statutes and case law.

The general rule is that child support terminates when the child reaches majority. Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 510(c)) provides that “[u]nless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child, except as otherwise provided herein 9 9 The Illinois Supreme Court interpreted this section in Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12. The court considered section 510(c) to be a declaration of the common law rule that the obligation to support terminated upon emancipation. The court stated:

“Prior to the adoption of the new act, our appellate courts have held that a parent’s obligation to support a minor child did not extend beyond the age of minority unless otherwise provided in the decree or as authorized by statute. [Citations.] We agree with the appellate court opinion of In re Marriage of Raski (1978), 64 Ill. App. 3d 629, wherein the court found that the provisions of the new act do not extend the parental obligation for support beyond minority except in limited statutory situations. (See, e.g., Ill. Rev. Stat. 1977, ch. 40, par. 513.)” 81 Ill. 2d 317, 326, 410 N.E.2d 12, 16.

Section 513 of the Act authorizes a court to order support for nonminor children when the child is physically or mentally disabled or when educational expenses are sought. The 1976 decree before us did not provide support for the educational expenses of nonminor children. The decree stated that the question of educational expenses was to be reserved for future consideration. The support awarded in the decree was support for the three minor children, and this type of support terminates when the children are emancipated.

We conclude that the divorce decree did not obligate the father to continue paying child support after the youngest child attained majority.

The mother argues that as a result of the 1978 court order raising support from 30% to 35%, the father was not entitled to unilaterally reduce this amount. She relies on Finley to support this argument. In Finley, a divorce decree entered in 1965 ordered the defendant to pay $30 per week for the support of his four minor children. The decree made no provision for a reduction in child support when a child reached majority. Nevertheless, when defendant’s oldest son joined the Army in 1966, defendant decreased support payments by one-fourth. Four years later, defendant’s oldest daughter married and he again reduced payments by one-fourth. In 1975, defendant’s third child became 18 and he reduced support by one-fourth so that his weekly payments were $7.50. In 1977, defendant’s ex-wife filed a petition seeking child support arrearage.

The supreme court phrased the issue as “whether a parent who has been ordered by a divorce decree to pay a collective or lump sum weekly for the support of four minor children may unilaterally reduce the amount of such payments pro rata as each child is emancipated.” (Finley v. Finley (1980), 81 Ill. 2d 317, 321, 410 N.E.2d 12, 14.) The court held that such a pro rata reduction was not permissible. The rationale for this holding was that modifications of child support payments are a judicial function, and any reduction made in a multichild support order at the emancipation of one of the children is a matter solely for judicial determination.

The support payments in Finley consisted entirely of support for minor children and the defendant had reduced payments as each child was emancipated. Since the award was unapportioned with respect to the children, it was a matter for the courts to determine how much of the award was attributable to each child. In this case, the support payments were a combination of support for minor children and support for the educational expenses of an adult child. Gary Pauley reduced payments when there were no longer minor children to support. If his payments were unapportioned as between minor child support and educational expenses, the rationale of Finley suggests that he was not entitled to unilaterally reduce support.

But the father argues that his payments were apportioned. Prior to the 1978 order, he had reduced support from 35% to 30% when Mike was 18 years old. This was in accordance with the divorce decree. The 1978 order restored support to 35%. He interprets this order as adding 5% for Mike’s college expenses to the 30% in minor child support that he was already paying. When Kevin turned 18, he reduced support to 30%. This reduction was based on his understanding that the divorce decree required him to pay 25% in child support after the second son became 18 and the 1978 order required him to pay 5% for Mike’s college expenses. He reduced payments from 30% to 5% when Scott, the youngest son, graduated from high school, reasoning that the 25% child support payments ordered by the divorce decree had terminated at that time.

In support of his argument that the 1978 order consisted of 30% child support plus 5% college expenses, the father relies on the order itself and the court’s docket entry. While allowing the 35% award, the court found that the mother was not entitled to a modification of or an amendment to the divorce decree. The father argues that since the order did not modify or amend the divorce decree, his obligation of 30% for child support was unchanged. Since the order raised the level of support to 35%, the additional 5% must have been for Mike’s college education. This interpretation of the order is bolstered by the trial court’s docket entry which stated that the “court finds that the actual question to be ruled on is support for the oldest child, Michael, while he attends college, such ruling having been reserved in the original divorce decree.”

The mother argues that the 1978 order was unapportioned. She relies on the opinion of the court below in which the trial judge said that “the restoration of the 35% level from 30% for support in 1978 because of Mike’s being in school did not allocate just 5% to him but rather restored the reasonable total level of the three children.”

We conclude that the father’s payments were apportioned. Under the divorce decree, he was obligated to pay 25% of his net income for the support of his youngest son after the two older boys were emancipated. This obligation was to terminate when Scott attained majority. The decree was never amended or modified. Therefore, when Scott turned 18, he was no longer obligated to continue paying 25% for Scott’s support and was entitled to reduce support payments from 30% to 5%. Accordingly, there is no arrearage as a result of this reduction.

Although no arrearage is due, the mother is nevertheless entitled to reimbursement for the educational expenses of Mike and Scott. In determining these expenses the guidelines of section 513 are to be followed. The court is to consider the financial resources of the parents and the children and the standard of living the children would have enjoyed had the marriage not been dissolved. Furthermore, section 513 authorizes a court to provide for the education and maintenance of the child. Therefore, educational expenses are to include more than just tuition and book fees. The mother is entitled to reasonable living expenses for Mike, who was living on campus, and Scott, who was residing at home.

Reversed and remanded.

WEBBER and LONDRIGAN, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    JOHN J. GROTTO et al., Plaintiffs-Appellants, v. LITTLE FRIENDS, INC., et al., Defendants-Appellees.
    Second District
    No. 81-294
    Opinion filed February 25, 1982.

      Leroy A. Grotto, of Kolb and Grotto, of Glen Ellyn, for appellants.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara Preiner, Assistant State’s Attorney, of counsel), for appellee County of Du Page.
    Kathleen West, of Nadelhoffer, Hennessy, Dommermuth and Rrestal, of Naperville, for appellee Little Friends, Inc.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Plaintiffs, John J. Grotto, Justina M. Grotto, Russell Abbott and Nikki Abbott bring this appeal of a dismissal of their amended complaint against Little Friends, Inc., an Illinois Corporation, and the County of Du Page.

The trial court granted the county’s motion to dismiss the amended complaint pursuant to section 48 (i) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(i)) on the grounds that plaintiffs had failed to exhaust their administrative remedies.

For the purpose of ruling on the county’s motion to dismiss, the factual allegations of the complaint must be accepted as true and all inferences must be drawn therefrom in favor of the nonmovants, the plaintiffs. Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344.

The substance of the amended complaint is that the plaintiffs and the defendant, Little Friends, Inc., are owners of adjoining properties in Du Page County all of which are classified under the Du Page County Zoning Ordinance as R-3 single-family residential; that on January 12, 1980, a building permit was issued by the Du Page County building department to Little Friends, Inc., together with a certificate of the planning and zoning department of the county, which permitted the use and alteration of the subject property of Little Friends, Inc., as a facility for autistic children; and that under the Du Page Zoning Ordinance such a use is defined as a sheltered care home and is permitted in a single-family residential district only as a special use. It is further alleged in the complaint that no petition for a special use was ever submitted to the zoning board, nor was any public hearing held on the matter as required by the zoning ordinance of the county for the granting of a special use.

According to the factual allegations of the complaint, the County of Du Page, in effect, granted Little Friends, Inc., a special-use permit without giving notice or holding a public hearing. We take judicial notice of the Du Page County Zoning Ordinance including the requirements therein for notice and public hearing prior to the granting of a special-use permit. The action of the county granting the permit in the manner alleged in the complaint clearly contravened the terms of the county’s own zoning ordinance.

The courts have generally adopted the view that requirements respecting notice and hearing on the application to a zoning body or board for a special-use permit are mandatory and jurisdictional, so that failure to comply with such requirements will ordinarily invalidate the action of the zoning body or board in granting the special permit. (See 82 Am. Jur. 2d Zoning and Planning §300 (1976); Annot., 38 A.L.R.3d 167, 180 (1971).) Notice must be given and public hearings held before a variance or exception can be granted, and the action of granting a variance or exception without notice and public hearing would be null and void. (Bluett v. County of Cook (1958), 19 Ill. App. 2d 172, 176-77.) Accepting the factual allegations of the complaint as true, the granting of the special-use permit in the instant case was null and void.

The trial court, however, dismissed the complaint because plaintiffs had failed to appeal the issuance of the building permit in question within 20 days as required by the county zoning ordinance and had, therefore, failed to exhaust their administrative remedies. According to the pleadings, plaintiffs were unaware of the issuance of the building permit and the accompanying zoning action in question until after the expiration of the 20-day appeal period because of the defendant county’s failure to require the giving of notice or the holding of a public hearing. The administrative remedy relied upon by the trial court was, under these facts, unavailable to the plaintiffs, and it would have been useless to pursue that remedy. Plaintiffs’ affidavit filed in support of their motion to reconsider verifies that conclusion, since it discloses that plaintiffs did attempt to file an appeal with the county which was rejected because the 20-day appeal period had elapsed. Equity will not require the doing of a useless act. Daven v. Downey (1941), 378 Ill. 543, 555.

Under the facts set forth in the pleadings, the County of Du Page had no authority to issue a building permit for a use classified as a day-care center or sheltered care home under its zoning ordinance, and plaintiffs had no administrative remedies available before they sought judicial relief. The trial court erred in dismissing the amended complaint. That order is reversed, and the matter is remanded to the circuit court of Du Page County for further proceedings.

Reversed and remanded.

SEIDENFELD, P. J., and LINDBERG, J., concur.


author: PRESIDING JUSTICE SEIDENFELD JUSTICE VAN DEUSEN,

text:
    FOREST GLEN COMMUNITY HOMEOWNERS ASSOCIATION, Plaintiff-Appellee, v. THOMAS P. NOLAN, Defendant-Appellant.
    Second District
    No. 81-449
    Opinion filed February 25, 1982.

      Stuart Berks and Marc W. Sargis, both of Des Plaines, for appellant.
    Henry S. Stillwell, of Rathje, Woodward, Dyer and Burt, of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The Forest Glen Community Homeowners Association sought injunctive relief to enforce a restrictive covenant against the storing or parking of recreational vehicles in the open on the property of the defendant, Thomas P. Nolan. The trial court granted a permanent injunction, and the homeowner appeals. He contends that injunctive relief is inappropriate because the restriction was vague and indefinite, the court failed to balance the equities, and the restriction denied due process.

The restrictive covenant provides:

“Section 7. Restriction on Vehicles.
No boat, airplane, trailer, truck, house trailer, motorized recreational vehicle, commercial vehicle, or snowmobile shall be stored (permanently or temporarily) in the open on any of the Property, except that conventional passenger vehicles of the Owners, Occupants and their guests shall be permitted to be parked on the Owner’s driveway. The Parkway located between the pavement and the Lot Line Front of each Lot shall not be used for the parking of any private or commercial vehicles, boats, trailers, trucks, recreational vehicles, or snowmobiles. The term ‘Commercial Vehicles’ shall include all automobiles, station-wagons, trucks or vehicular equipment which shall bear signs or have printed on the side of same reference to any commercial undertaking.”

There was evidence at the hearing that Forest Glen Subdivision contains approximately 100 homes, each having an average fair market value of $228,000. When the covenant was framed in 1976 the local municipality of Oak Brook had not passed any ordinance restricting the locating of recreational vehicles in the open on residential property. The general purpose of the declaration as pertinent was stated in article I: “to protect each Owner 999 from such improper use of surrounding lots as may depreciate the value of their property 9 9 9 and, in general, to provide adequately for a residential subdivision of the highest quality and character * e

There was testimony that there were complaints from homeowners starting in 1980 concerning a boat on defendant’s property. The boat, a 25-foot cabin cruiser, was situated at various times along the defendant’s garageway on an asphalt apron or in the U-shaped driveway. There it was visible to neighbors or passersby. The defendant was notified of the violation by registered mail and the president of the association testified that when he talked with defendant the latter said he would keep the craft on the property during the summer until he could find moorings for it. In 1980, the boat was seen on the property from 100-150 occasions at various times during the week and on weekends. There was also testimony that snowmobiles were kept on the defendant’s property during the winter and that although the defendant said he would remove them he did not do so. The president of the association testified that he considered “storing” a “consistent thing” whereas “parking” he considered “intermittent.” He said that he never saw the boat on the parkway.

The draftsman of the covenant testified that it was designed to deal with the “problem” of residents keeping recreational vehicles on their property, and that the homeowners had requested the covenant to alleviate this practice.

There was also testimony for the association that another neighbor had seen the craft located at different times on the asphalt or apron or in the driveway in open view for 100-110 days from the middle of May to the middle of September 1980 and that snowmobiles were also seen on the property during 1980.

Nolan testified, denying that he kept the cruiser on the premises from the middle of May to the beginning of July 1980. He said that when he did intend to take the boat out on a given day he would remove it the preceding night from the warehouse where he leased space and leave it overnight beside the garage and to the rear of the house. He explained that he brought the boat on the property the night before to prepare it for sailing the next day and that after boating he would return it the same day or the next day to the warehouse unless he intended to use it again the next day or the day after. Nolan acknowledged receiving notice and stated that he continued to bring the cruiser onto his property during the summer because he could not find a mooring. He said that between April and September of 1980, the boat was located on his property for no more than one-fourth of the time. He also said that he kept four snowmobiles on his property, but they were never on his property for more than a weekend, and then only twice during the last winter. On cross-examination he conceded that the boat had been on the property for more than 24 hours at a time, 10-12 times during the summer of 1980, that the craft was on the premises in the open 50-60 nights during that time, and also continuously for a week in the latter part of August.

The trial court, in finding that the defendant had violated the covenant, defined “storing” and “parking” in the following terms:

“Store, stored, storing: Storing means the standing of an unoccupied vehicle otherwise than when temporarily and actually engaged in loading or unloading merchandise or passengers.
Park, parked, parking: Parking means the standing of a vehicle whether occupied or not including when temporarily and actually engaged in loading or unloading merchandise or passengers.”

The court permanently enjoined defendant from “locating” any restricted vehicle on the property in violation of the covenant, and by a later order clarified the judgment by finding that overnight location violated the covenant.

The defendant principally argues that the covenant is vague and indefinite. The first sentence of the covenant prohibits the open storing of certain vehicles on the property but excepts conventional passenger vehicles parked in the driveway; the next sentence forbids the parking of the specified vehicle in the parkway located between the pavement and the front line of the subject lot. Therefore, he concludes, the covenant is silent on whether the owner may park the designated vehicles, as opposed to store, outside on the property other than on the parkway. The defendant additionally argues that the Homeowners Association, by not bringing suit in 1978 and 1979 when the homeowner also kept recreational vehicles on the property, similarly read the covenant to permit parking. Finally, he contends that “parking,” when given its ordinary meaning, permits overnight locating.

The extraordinary remedy of injunction shall not issue to enforce a covenant which is indefinite and uncertain. (Cleveland v. Martin (1905), 218 Ill. 73, 90; Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 246.) The proper interpretation of a covenant is a question of law, and the covenant is to be construed so as to give effect to the actual intent of the parties when the covenant was made. (Cimino v. Dill (1980), 92 Ill. App. 3d 345, 348.) Even though the covenant is strictly construed in favor of free use of property, this rule may not defeat the obvious purpose of the restrictions or the clear intent of the parties, if not precisely expressed. Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 248.

The general purposes stated in the declaration of restrictions as well as the restrictions as a whole demonstrate a strong intention and concern to establish a tranquil and aesthetically pleasing environment for residential life. Thus, the references to a subdivision of the “highest quality and character,” the encouragement of “attractive improvements,” the prevention of “inharmonious” improvements, the provisions against “offensive activities,” including planting “unsightly plants,” against outside antennas, regulating the size and location of name plates and lighting which could disturb adjoining lots, are all examples of the general concern and intention.

Initially we note that when recreational vehicles are continually kept outside in a single-family neighborhood, they can adversely affect its character and integrity. (See City of Pepper Pike v. Landskroner (1977), 53 Ohio App. 2d 63, 371 N.E.2d 579, 586.) Here, the draftsman testified that the residents had requested a covenant to alleviate an apparently common practice and the testimony was material to a proper interpretation of the restrictions. Cimino v. Dill (1980), 92 Ill. App. 3d 345, 349.

The covenant on its face does not clearly prohibit parking of a recreational vehicle, but does prohibit storage, permanent or “temporary.” “Storage,” connoting a certain degree of permanency, is customarily distinguished from “parking,” which connotes transience. (See cases collected in 5 P. J. Rohan, Zoning and Land Use Control §36.03(11) (k) n.100 (1981).) Here, “storage” is qualified by “temporary,” and interpretation, consistent with the intent and purpose of the covenant, is necessary to give the terms meaning.

We conclude that the parking of snowmobiles and a 25-foot boat on its trailer, at times other than when the owner is actually engaged in loading or unloading, would defeat the purpose behind the covenant. The subdividers clearly intended the covenant to alleviate what they saw as the “problem” of recreational vehicles continually on residential property. It is unlikely they intended to ban temporary open storage and not likewise prohibit locating of a recreational vehicle not actually engaged in loading or unloading: both describe the placing of an unoccupied vehicle on property until it is about to be again put into service and use. By definition, the parking which is permitted minimizes the obtrusiveness of such vehicles for other homeowners in the neighborhood, and is consistent with the underlying purpose to alleviate the “problem” caused by owners who keep recreational vehicles on residential property.

The construction which the defendant suggests, that the prohibition against temporary storage does not preclude the practice of overnight locating, is unreasonable, for it would defeat the underlying purpose.

The fact that the Homeowners Association failed to file suit in 1978 and 1979 is not persuasive in view of the fact that they considered defendant’s conduct to be a violation of the terms of the restriction.

The further contention of the homeowner that the court failed to balance the equities is also not persuasive. The breach of a covenant is sufficient reason to enjoin its violation and a complainant need not show substantial comparative injury. (Freehling v. Development Management Group, Inc. (1979), 75 Ill. App. 3d 243, 246-47; Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 252-53.) Moreover, the record indicates that defendant proceeded with prior knowledge and direct notice of the restrictions. Courts are not required to balance the equities under these circumstances. Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 166.

The owner’s due process argument actually presents no constitutional question but simply questions the soundness of the judgment. Essentially the defendant argues that by enforcing what he considers to be a vague restriction and creating definitions of “temporary storage” and “parking” which are not in the declarations, the court deprived the defendant of the use of his property in an unreasonable and arbitrary manner. However, “due process is not a guaranty against erroneous or unjust decisions by the courts which have jurisdiction of the parties and the subject matter.” (Kazubowski v. Kazubowski (1970), 45 ill. 2d 405,413.) The so-called due process argument is nothing more than an attack upon the soundness of the judgment as tested by familiar rules of equity and fails to raise an issue of constitutional dimensions. See Moore v. McDaniel (1977), 48 Ill. App. 3d 152,164-65.

We thus conclude that the covenant prohibits parking in the open of recreational vehicles except for those minimal intrusions when the owner is actually engaged in loading or unloading. The record indicates that the defendant has violated the restrictions by parking his boat and snowmobiles in the driveway at times other than when he is actually engaged in loading or unloading. The judgment order of the trial court is therefore affirmed.

Affirmed.

UNVERZAGT, J., concurs.

JUSTICE VAN DEUSEN,

dissenting:

I respectfully dissent from the majority’s opinion. The restrictive covenant in question in this matter provided in pertinent part as follows:

“No boat, airplane, trailer, truck, house trailer, motorized recreational vehicle, commercial vehicle, or snowmobile shall be stored (permanently or temporarily) in the open on any of the Property, 999 The Parkway located between the pavement and the Lot Line Front of each Lot shall not be used for the parking of any private or commercial vehicles, boats, trailers, trucks, recreational vehicles, or snowmobiles.”

The majority finds that the record indicates that the defendant had violated the restrictions in the covenant by parking his boat and snowmobiles in the driveway at times other than when he was actually engaged in loading or unloading. I agree that the evidence did disclose that the defendant parked his boat on his driveway in the summer and his snowmobiles on his driveway in the winter for brief periods of time between uses, usually overnight. I cannot agree with the majority that the defendant thereby violated the restrictive covenant in question.

Restrictions which interfere with the free use of property are not favored in law. (Arndt v. Miller (1957), 14 Ill. App. 2d 424, 427.) It is also well established that the primary purpose of the construction of a deed is to ascertain the intentions of the parties, which is gathered by giving effect to every word and rejecting none if it can be done without violating any positive rule of law; it is equally well recognized in the law that restrictive covenants are strictly construed in favor of the full and unlimited legitimate use of property and, where there is any doubt, the matter must be resolved in favor of natural rights and against restrictions. (Watts v. Fritz (1963), 29 Ill. 2d 517, 521.) The intent of the parties must be determined from the language of the agreement alone where it is not ambiguous, and the language is not rendered ambiguous simply because the parties do not agree upon its meaning. (See Harris v. American General Finance Corp. (1977), 54 Ill. App. 3d 835, 839.) The intention of the parties is to be determined from the language of the agreement, and words should be given their common and generally accepted meaning. See Crane v. Mulliken (1980), 86 Ill. App. 3d 1076, 1081.

The words used in the covenant in question are common words with a generally accepted meaning, and I can discern no ambiguity arising from their use in this matter. The verb “store” or “storing” means “to lay up against a future need; to hoard” and the verb “park” or “parking” means “to leave a [vehicle] in a certain place temporarily.” (Webster’s Dictionary of the English Language Unabridged (1977).) Implicit in the meaning of “store” or “storing” is a giving up of any present intent to use until sometime in the future when the item or matter is removed from storage; whereas, the meaning of “park” or “parking” carries with it a continuous, but interrupted, intent to use.

The simple and readily understood language of the covenant prohibited the defendant from storing his boat and snowmobiles in the open anywhere on his property at any time. It also advised him in no uncertain language that he could not park his boat or his snowmobiles on the parkway of his property. It did no more than that. It did not prohibit him from parking his boat or snowmobiles on or alongside his driveway. Therefore, I would find that the defendant’s actions did not violate the restrictions in the covenant.


author: JUSTICE UNVERZAGT

text:
      In re THE TOWN OF LISBON ELECTION ON THE QUESTION OF THE CONTINUATION OF PROHIBITION OF SALE OF LIQUOR.
    Second District
    No. 81-567
    Opinion filed February 25, 1982.
    Peter L. Krentz, of Plano, for appellants.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiffs, five registered voters of the Township of Lisbon, appeal from the order of the trial court which dismissed their petition contesting the action of the township canvassing board and upheld that board’s determination that an election proposition had failed.

In 1939 there was an election under section 2 of article IX of “An Act relating to alcoholic liquors” (Ill. Rev. Stat. 1939, ch. 43, par. 167) to determine whether the sale of liquor should be prohibited in the unincorporated areas of Lisbon Township. The proposition submitted to the voters was:

“Shall the sale at retail of alcoholic liquor be prohibited in that portion of Lisbon township lying without the corporate limits of a city, village or town?”

The affirmative won, and accordingly the sale at retail of alcoholic liquor was banned and that condition obtained until April 1981 in the unincorporated areas of Lisbon Township. The only incorporated area of the township is the Village of Lisbon. It appears from the record that no sale of alcoholic liquor had been permitted in the Village of Lisbon for many years. There is no official record of a vote on that proposition applying to the village only. However, the defendant’s attorney stated in argument at trial that “[t]he official record book is missing and the recollection of the people in the village is that they had a separate vote in the same period of time which followed the repeal.” (Presumably the reference is to the repeal of the eighteenth amendment requiring prohibition.) There is no official evidence, however, that the sale of liquor was banned in the Village of Lisbon prior to April 1981.

On April 7,1981, an election proposition was submitted to the voters of the “Town of Lisbon” reading as follows:

“Shall the prohibition of the sale at retail of alcoholic liquor be continued in Town of Lisbon?”

It will be noted that the proposition voted on varied from the one submitted to the voters in 1939 since, as worded, it applied to the whole Township of Lisbon, not merely the unincorporated areas, as had the 1939 proposition. Since the proposition, as worded, included the whole township, the village residents as well as those outside the village voted on the proposition as submitted. The result was that the ban on the sale of alcoholic liquor at retail was retained by a total vote of 129 to 120. After the election, the township trustees constituted themselves a canvassing board and, by excluding the votes cast by those living within the village, declared that the proposition had failed in the unincorporated areas by a vote of 103 against to 99 in favor of continuing the ban on the sale of alcoholic liquor outside of the village. The village residents voted 30 to 17 to continue the ban.

The plaintiffs then filed a petition to contest the result of the election in accordance with the provisions of section 17 of article IX of “An Act relating to alcoholic liquors” (Ill. Rev. Stat. 1979, eh. 43, par. 182), which provides in part as follows:

“Any 5 legal voters of any political subdivision or precinct in which an election has been held as provided for in this Act, may within 10 days after the canvass of the returns of such election and upon filing a bond for costs, contest the validity of such election by filing a verified petition in the Circuit Court for the county in which such political subdivision or precinct is situated, setting forth the grounds for the contest. * °

In their petition the plaintiffs requested that the trial court either declare that the result of the election was to continue the prohibition of the sale of alcoholic liquor in the “Town of Lisbon,” or to declare the election null and void and set it aside. The Township of Lisbon filed a motion to strike and dismiss the petition to contest the election. After considering the memoranda submitted by both sides and hearing the argument of counsel, the trial court entered an order dismissing the contest petition and declared the result of the election to be “that the incorporated Village of Lisbon remain anti saloon territory and that that portion of the township of Lisbon without the corporate limits of a city, village or town shall not continue as anti saloon territory.”

In this appeal the plaintiffs contend: (1) that the designation “Town of Lisbon” includes all residents of Lisbon Township, therefore all residents of Lisbon Township were eligible to vote on the single proposition submitted in the April 1981 election; (2) if the proposition as submitted to the voters was intended to include the persons living within the Village of Lisbon (or alternatively to have intended two elections, one in the village applying only to the village and the other to the unincorporated areas applying only to such areas) then the election proposition was defectively stated and a new election must be held.

We think there is no doubt that the expression “Town of Lisbon” in the proposition submitted to the voters at the April 1981 election may properly be considered to embrace the whole territory of Lisbon Township. (See People ex rel. Hatfield v. Grover (1913), 258 Ill. 124; People ex rel. Deneen v. Town of Thornton (1900), 186 Ill. 162, both of which discuss the meaning of the terms “town” and “township.”) From the language of these cases it is clear that a “town” is not intended to mean an incorporated town or village but is the name given to a political unit — usually geographically the same as a township. It does not indicate a municipal corporation, but is organized as a unit of county government under the authority of the State legislature. See also Committee of Local Improvements v. Objectors to the Assessment (1968), 39 Ill. 2d 255, which clearly indicates that a “town” is a separate political unit and has a definite historical meaning other than municipality or incorporated town. Sections 5 and 6 of “An Act to revise the law in relation to township organization” (Ill. Rev. Stat. 1979, ch. 139, pars. 5 and 6) explains the division of a county into towns:

“§5. The presiding officer of the county board, with the advice and consent of the county board, shall, at its next session, appoint three commissioners, residents of the county, to divide the county into towns. ° °
“§6. The commissioners so appointed shall proceed to divide such county into towns, making them conform to the townships according to government surveys. * *

Thus it is apparent that the reference to “town” in the election proposition we deal with here was intended to include more than just the rural areas and more than just the village and, in fact, include the whole of Lisbon Township. Moreover, it appears that that is how it was understood by both the township officials and the voters, since all the voters in the township, both within and without the village, were permitted to and did vote at the same time on this same proposition.

We are of the opinion, therefore, that the election proposition as submitted, viz.: “Shall the prohibition of the sale at retail of alcoholic liquor be continued in Town of Lisbon?” referred to the prohibition of such sale throughout the whole township. Under this wording we see no grounds for either excluding the voters residing in the village or treating the election results as applying separately to the two areas, incorporated and unincorporated, as if two separate elections had been held with different results in those two areas.

The township says that the petition to contest the election cannot be heard because it was not presented 30 days prior to the election as provided in section 4 of article IX of “An Act relating to alcoholic liquors” (Ill. Rev. Stat. 1979, ch. 43, par. 169), citing Havlik v. Marcin (1971), 132 Ill. App. 2d 532. However, this provision obviously has no application here since plaintiffs are not contending that the proposition stated on the ballot was per se improper, but are contending that the interpretation of the results was improper, if the proposition was stated correctly. Since the interpretation of the results had to await the action of the canvassing board, the plaintiffs had no reason to contest the election beforehand. The plaintiffs here are contesting the results of the election as applied to the proposition submitted, and Havlik has no application to the case before us. Indeed, it could be argued that it is the township which is, in effect, throwing doubt on the validity of the election petition as submitted, for the township seemingly contends that it was not the intent of the petition to include the village residents, yet the wording of the proposition did include them. It was never established that the electors residing within the village proper had ever by an election banned the sale of alcoholic liquor at retail within the village, so it could logically be argued by either side that the proposition actually voted on was improper because if the sale of alcoholic liquor at retail had not previously been banned within the village itself, then it was not proper for them to have voted on continuing the ban for the whole town of Lisbon, since the whole town had never so voted in the first place. Only an election petition couched in the same terms as the original election petition, which banned alcoholic liquor in the unincorporated areas, would have been actually correct on the question of continuing the ban.

Initially we consider the results of the election as decided by the canvassing board. The authority of a canvassing board is strictly limited. (Ill. Rev. Stat. 1979, ch. 46, par. 22 — 1 et seq.) In Wells v. Robertson (1917), 277 Ill. 534, 539, our supreme court, in commenting on the power of a canvassing board to exclude the votes of women cast in an election for judges, said:

“The members of the canvassing board are mere ministerial officers, and it was not within their province either to determine the constitutionality of our statute on women suffrage or the constitutional question whether or not such associate judges belong to the class of officers for whom women may legally vote under said act. [Citation.] Their duty is a mere mechanical or mathematical duty. They can only compute the votes cast for the several candidates that are duly certified to them and declare the result. They had no right to go behind the returns and determine whether any of the votes cast were illegal.” (Emphasis added.)

We have grave doubts, therefore, whether in the case before us the canvassing board had the authority to exclude certain ballots otherwise proper in form and marking, simply because they were apparently cast within the village (as determined by their color). Whether or not the residents of the village should have voted in the election in question was not within the province of the canvassing board to determine.

Nor do we agree with the trial court’s finding that “[t]he ballot and the system of voting adopted gave the voter a clear alternative to vote for or against the proposition and to vote in the unit in which the voter lived and voted.” This finding by the trial court implies there were two precincts involved, one being the village and the other the unincorporated area, but the petition for election described only one precinct — the Town of Lisbon. It may be desirable to treat the village and outside areas as separate precincts in voting on the question of selling alcoholic liquor at retail but this, in our opinion, was not done by the election petition in question.

As we are unable to ascertain from this record whether the Village of Lisbon has ever had an election banning the sale of liquor, the proposition as submitted is defective, and the election of April 7, 1981, is null and void.

Reversed.

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