author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH VALENTINE, Defendant-Appellant.
    Fourth District
    No. 4—83—0504
    Opinion filed March 30, 1984.

      Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Tim P. Olson, State’s Attorney, of Jacksonville (Robert J. Biderman and Marlene Newton, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On May 13, 1983, defendant, Kenneth Valentine, and Tracey Jones were charged by an information filed in the circuit court of Morgan County with three counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2). On June 27, 1983, defendant and Jones were charged by information with three counts of robbery based upon the same conduct as alleged in the armed robbery counts (Ill. Rev. Stat. 1981, ch. 38, par. 18-1).

At a hearing held on June 27, 1983, defendant and Jones pleaded guilty to the robbery charges. The trial court then accepted their guilty pleas and ordered that a sentencing hearing be held on July 19, 1983.

At the outset of defendant’s July 1, 1983, bench trial on the armed robbery charges, the trial court dismissed the armed robbery charges against Jones pursuant to a plea agreement entered into between Jones and the State. At the conclusion of the bench trial, the trial court found defendant guilty of the three counts of armed robbery.

At the July 19, 1983, sentencing hearing, the trial court (1) sentenced defendant to concurrent terms of six years’ imprisonment on each of the three armed robbery counts and to a term of three years’ mandatory supervised release, and (2) ordered defendant to pay the sum of $1,433.90 as restitution to the victims and the sum of $235 in court costs. The trial court then vacated “the judgment of guilt as to [the three counts of robbery]” and dismissed those counts “as being lesser included offenses.”

On appeal, defendant maintains that (1) the procedure used in this case violated his constitutional (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10) and statutory (Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4) guarantees against double jeopardy, and (2) the State failed to prove beyond a reasonable doubt that defendant committed the offense of robbery while “armed with a dangerous weapon” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)).

Before examining the merits of defendant’s double jeopardy argument, we must address the State’s contention that defendant waived his right to present this issue on appeal by failing to object to the procedure at trial. (People v. Scales (1960), 18 Ill. 2d 283, 164 N.E.2d 76.) The seriousness of a double jeopardy issue and the intimate relationship of the issue to the integrity and fairness of judicial proceedings warrant considering the issue as plain error (87 Ill. 2d R. 615(a)). (People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496.) Accordingly, we conclude that defendant’s failure to raise the double jeopardy issue either prior to or during the course of the July 1, 1983, bench trial did not constitute waiver of the issue for purposes of this appeal.

Defendant points out that (1) the robbery and armed robbery charges filed against him were based upon the same conduct, and (2) he was prosecuted for the offense of armed robbery after the trial court had accepted his guilty plea to the offense of robbery. Defendant asserts that this procedure violated his guarantee against double jeopardy.

The Supreme Court has determined that the fifth amendment guaranty against double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) This constitutional protection is codified in section 3 — 4 of the Criminal Code of 1961 which provides in part:

“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal ***.” Ill. Rev. Stat. 1981, ch. 38, par. 3 — 4(a).

The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated as follows in Blockburger v. United States (1932), 284 U.S. 299, 304, 76 L. Ed. 306, 309, 52 S. Ct. 180, 182:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.”

Section 18 — 2(a) of the Criminal Code of 1961 provides that a person commits armed robbery when he or she commits robbery “while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon” (Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a)). Because the included offense of robbery requires no proof beyond that which is required for conviction of the offense of armed robbery, we conclude that armed robbery is the “same offense” as robbery for purposes of double jeopardy. See Brown v. Ohio (1977), 432 U.S. 161, 53 L. Ed. 2d 187, 97 S. Ct. 2221.

Moreover, in Brown the Supreme Court determined that if two offenses are the same under the Blockburger test for purposes of barring consecutive sentences at a single trial, the offenses necessarily will be the same for purposes of barring successive prosecutions. Here, defendant was prosecuted for an offense (armed robbery) after the trial court had accepted his guilty plea to an included offense (robbery). Accordingly, if jeopardy attached at the time the trial court accepted defendant’s guilty plea, the subsequent prosecution on the armed robbery charge was barred.

In People v. McCutcheon (1977), 68 Ill. 2d 101, 368 N.E.2d 886, the court stated:

“Jeopardy attached only at the time the guilty plea was accepted by the court.” (68 Ill. 2d 101, 106, 368 N.E.2d 886, 888.)

We also note that courts in various jurisdictions have concluded that jeopardy attaches at the time the trial court accepts the accused’s guilty plea. (See Annot., 75 A.L.R.2d 683 (1961).) As a result, we conclude that defendant’s prosecution on the armed robbery charge was barred because the trial court had previously accepted defendant’s guilty plea to the robbery charge.

We are aware that the supreme court in McCutcheon determined that, for purposes of section 3 — 4, a plea of guilty to an included offense is not an acquittal of the principal offense. However, we believe that McCutcheon may be distinguished from the case at bar. There, defendant, pursuant to a plea agreement, pleaded guilty to the misdemeanor offense of contributing to the sexual delinquency of a minor and the State nolle prossed the felony charge of indecent liberties with a child. On direct appeal, the appellate court vacated the guilty plea for violation of Supreme Court Rule 402 (50 Ill. 2d R. 402), and remanded, allowing defendant to plead anew. Defendant was then prosecuted and convicted of both the misdemeanor and felony charges. On appeal, defendant maintained that the reinstatement of the felony charge was barred by the double jeopardy provisions.

In McCutcheon, the supreme court noted:

“On the issue of whether a judgment on a plea of guilty to a lesser offense (the result of negotiations in which the defendant agrees to plead guilty to a lesser included offense while the State agrees to dismiss the greater offense) is an acquittal of a greater offense, it seems that a defendant could not be prosecuted for the greater offense. We believe, however, that what is apparent is deceptive.
* * *
[Defendant's first successful appeal of his guilty plea placed him in the position he held prior to the plea or in the position he would have held had he been allowed to withdraw his plea. The appellate court’s mandate to plead anew encompassed starting the process over. Accordingly, there was nothing to prevent the State from reinstating the greater charge.” People v. McCutcheon (1977), 68 Ill. 2d 101, 105-06, 368 N.E.2d 886, 888.

In this case, defendant made no attempt to withdraw his guilty plea in the trial court, nor did he seek to have the guilty plea vacated on appeal. Accordingly, we conclude that the McCuteheon case does not control this case where defendant made no attempt to place himself in the position he held prior to the trial court’s acceptance of his guilty plea.

Because we have determined that the procedure used in this case placed defendant in jeopardy twice for the same offense, we need not pass on the other issue raised by defendant in his appeal. For the reasons stated herein, we reverse defendant’s conviction for the offense of armed robbery, vacate the sentence imposed on defendant for that offense at the July 19, 1983, sentencing hearing, reinstate defendant’s conviction for the offense of robbery, and order that defendant be sentenced on the offense of robbery.

Reversed and remanded.

MILLS, P.J., and WEBBER, J., concur.


source: Caselaw Access Project

author: JUSTICE TRAPP

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD REDMAN, Defendant-Appellant.
    Fourth District
    No. 4—83—0658
    Opinion filed March 28, 1984.

      Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Perry Lee Miller, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE TRAPP

delivered the opinion of the court:

Defendant Donald Redman pleaded guilty to possession of more than 30 but less than 500 grams of cannabis (Ill. Rev. Stat. 1981, ch. 56½, par. 704(d)) and was sentenced to 30 months’ probation. A petition to revoke his probation was filed alleging that defendant failed to report to his probation officer as required by the terms of his probation. The violation was proved and defendant was sentenced to three years’ imprisonment. Defendant appeals from the judgment of the circuit court of Vermilion County. We remand the cause to the trial court for the issuance of an amended mittimus.

The single issue raised by defendant is whether he is entitled to additional credit toward his sentence of imprisonment.

On January 22, 1982, defendant pleaded guilty pursuant to a plea agreement to the offense of unlawful possession of more than 30 but less than 500 grams of a substance containing cannabis. In exchange for the guilty plea, the court agreed to sentence defendant to probation with a maximum of 60 days in jail. Judge Robinson conducted the sentencing hearing on March 11,1982.

The presentence report prepared by probation officer Phyllis Nelson showed several prior offenses. In 1976, defendant was found guilty and fined for a shoplifting offense which occurred in 1975. In 1981, defendant pleaded guilty to one count of criminal trespass to a motor vehicle and one count of an offense relating to a motor vehicle. Defendant was placed on one year’s probation on May 11, 1981.

Defendant’s probation officer in the 1981 case (81-CM-253) informed Nelson by letter that defendant had never reported monthly to the probation office as required by the conditions of his probation, and had failed to make any effort to pay the $435 fine, court costs and restitution ordered in that cause. Nelson testified that she spoke to defendant about this on February 8, 1982. She said defendant told her that he had somewhere to go that day, but would start reporting in later on. As of the date of hearing, to her knowledge, he had not reported.

The State suggested a sentence of 30 months’ probation with 60 days’ jail time and $30 restitution. The incarceration recommendation was based partially upon defendant’s poor attitude toward probation. Defendant’s counsel argued that no incarceration should be imposed.

Judge Robinson sentenced the defendant to 30 months’ probation, made the requisite findings for imposition of a consecutive sentence under section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—4(b)), and announced the express terms and conditions of defendant’s probation, including 60 days’ imprisonment, restitution of $30 and costs of suit. Judge Robinson further stated:

“I think maybe you need a little help at this time with probation, and I’ll give you that help. The first time you miss your Court-directed appearance at Court Services, your report, the first time you fail to show up, they’re instructed to file a violation petition. And upon prove-up of that violation without sufficient cause, I’ll send you off for three years. I’m telling you in advance what that sentence is going to be. If that does not provide the impetus to secure prompt reporting, then we’ll just have to do away with reporting and try the penitentiary.”

The court advised the defendant that if he obtained his G.E.D. certificate in less than the 60 days’ of his incarceration, he would release defendant from further confinement. The trial judge then entered judgment and admonished the defendant as to his rights to appeal. Upon concluding the admonishments, Judge Robinson stated:

“Excuse me just a moment. The sentence in this case will run consecutively with the sentence previously imposed for the criminal damage. *** He’s in custody on a 60-day mittimus. Mittimus to issue.” (Emphasis added.)

Neither the probation order, dated March 11, 1982, but filed March 25, 1982, nor the docket sheet state that defendant’s probation in this cause was to be consecutive to the probation in No. 81-CM-253. The probation order stated that defendant was sentenced to a term of probation: “For a period of 30 months from and after this date,” the 30 months being typed into a blank on the form. Nothing had transpired, insofar as the record shows, in the interim between the trial judge’s pronouncement of sentence and the signing of the order which might have effected a change in the court’s view as to the proper sentence in this cause.

On April 1, 1982, Judge Robinson ordered defendant’s release from the county jail and his continuation on probation.

On June 16, 1983, the State filed the petition to revoke probation alleging defendant’s failure to report to his probation officer. A hearing was conducted on the petition on September 13, 1983. The court found the State had proved the violation. Probation officer Nelson testified that when she spoke to defendant on February 8, 1982, he was attending school. On that basis, they had agreed that he would report monthly rather than weekly. Nelson testified that defendant had expressed a desire to be employed in another State and that she had informed him that before he could leave the State he would have to have a job lined up. Defendant testified that he had found a job as a concrete finisher in Fort Lauderdale, Florida. He had left the State of Illinois and gone to Fort Lauderdale to seek employment. He had been unemployed there for about five months. He returned to Illinois when he learned that a warrant for his arrest had been issued. He had not paid monies from his Florida earnings toward his fine and costs.

On September 16, 1983, Judge Robinson conducted a sentencing hearing and sentenced defendant to three years’ imprisonment. The judge stated that defendant would be given credit for all time served on this offense, whether awaiting trial, awaiting hearing on the violation, or time served initially as a condition of probation.

The mittimus, signed September 16, 1983, credited defendant for time served in custody from August 28, 1981, to August 29, 1981, and from September 5, 1983, to September 16, 1983.

Defendant contends on appeal that he is entitled to credit for time he spent in jail pursuant to sentence in this cause from March 11, 1982, to April 1, 1982, and for all days thereafter until June 16, 1983, when the State filed the petition to revoke his probation.

The State concedes that defendant is entitled to additional credit toward his sentence of imprisonment for time served in jail as a condition of probation, e.g., from March 11, 1982, to April 1, 1982. The State also concedes that defendant should be credited with time served on probation in this cause, as the court did not expressly deny such credit. (People v. Hollingsworth (1982), 89 Ill. 2d 466, 433 N.E.2d 682.) The State argues, however, that defendant’s probation in this cause should be found to have commenced on May 11, 1982, and not March 11, 1982, as defendant suggests.

The basis for the State’s position lies in Judge Robinson’s pronouncement of March 11, 1982, that defendant’s probation in this cause was to run consecutive to the probation sentence which defendant was then serving — and which expired on May 11,1982.

We are thus confronted with an inconsistency between the common-law record, as represented by the docket sheet and the written probation order, and the report of proceedings at trial. Given the circumstances of this case, we conclude that the latter must prevail. In People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283, while the court specified it did not consider the question raised in this appeal, the court stated:

“In a criminal case the pronouncement of the sentence is the judicial act which comprises the judgment of the court. The entry of the judgment order is a ministerial act and is merely evidence of the sentence. People v. Moran (1930), 342 Ill. 478; Accord, Sasser v. United States (6th Cir. 1965), 352 F.2d 796.” (71 Ill. 2d 378, 381, 375 N.E.2d 1283, 1284.)

In People v. Moran (1930), 342 Ill. 478, 174 N.E. 532, the court referenced the rule that the rendition of a judgment and pronouncing sentence of the law are judicial acts, while the entry of a judgment by the clerk is a ministerial act. The State also cites People v. Thompson (1977), 51 Ill. App. 3d 447, 366 N.E.2d 1009, and People v. Webb (1976), 38 Ill. App. 3d 629, 347 N.E .2d 486.

In Thompson the court noted that the sentence reflected in the common-law record was not in accord with that imposed by the trial court as to the one-day period of incarceration, as reflected in the report of proceedings. The court stated that in such circumstances the report of proceedings prevailed, citing People v. DePratto (1976), 36 Ill. App. 3d 338, 343 N.E.2d 628, and corrected the common-law record accordingly.

In DePratto, the report of proceedings showed the judge did not say on which of three aggravated battery counts he was imposing sentence. The common-law record recited that the judge imposed a sentence of two to six years on each aggravated battery count, the sentences to be served concurrently. The reviewing court ruled that the report of proceedings prevailed over the conflicting common-law record. The court examined the record and determined that the defendant had been found guilty of armed robbery and three counts of aggravated battery, but had been sentenced for aggravated battery without the judge specifying the counts on which sentence had been imposed. The length of sentence imposed was compatible only with the two more serious charges of aggravated battery. Therefore, the cause was remanded to the trial court to vacate the findings of guilty on the armed robbery count, and on the two remaining counts that charged aggravated battery, and issue an amended mittimus. See also People v. Gregory (1966), 77 Ill. App. 2d 188, 222 N.E.2d 182 (wherein common-law record did not recite adjudication on the charge of rape; held, when a conflict exists between the common-law record and the bill of exceptions, the former does not necessarily control when consideration of the record as a whole disclosed that defendant was indicted for both burglary and rape, evidence was introduced as to both counts, the trial judge made a finding of guilty on both counts and the court sentenced defendant in accordance with those findings); and People v. Williams (1963), 27 Ill. 2d 327, 189 N.E.2d 314 (trial court erred in failing to grant defendant’s petition for discharge wherein defendant demanded immediate trial but was refused; defense counsel for another, with whom defendant was jointly indicted and tried, had agreed to a continuance in defendant’s absence, although he did not represent the defendant or have any authority from him or his counsel to so act on defendant’s behalf).

In Webb, also cited by the State, the transcript of proceedings reflected that the trial judge stated at the conclusion of trial that the court found the defendants “guilty of the crime of robbery.” Defendants contended on appeal that they were not found guilty of armed robbery. The reviewing court found that the defendants were indicted for armed robbery, charged with that offense at arraignment, that sentences were imposed for armed robbery and that the notice of appeal filed by each defendant was from a judgment of armed robbery. Trial testimony showed use of a gun during the robbery and the judge commented on use of the gun at the sentencing hearing. The Webb court stated that where the common-law record is contradicted by facts appearing in the record of proceedings, a reviewing court must look at the record as a whole to resolve the inconsistencies. Accord, People v. Ford (1974), 20 Ill. App. 3d 890, 314 N.E.2d 547 (abstract of opinion).

Upon review of these authorities, we conclude that the judge’s order of a consecutive sentence of probation, as reflected in the report of proceedings, must be given effect. In so doing we note the distinction between the rendition and entry of judgment:

“Rendition and entry are separate acts and different in their nature. The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial. A judgment is not what is entered, but what is ordered and considered. The entry may express more or less than was directed by the court, or it may be neglected altogether; yet in neither of these cases is the judgment of the court any less its judgment than though it were accurately entered. In the very nature of things, the act must be perfect before its history can be so; and the imperfection or neglect of its history fails to modify or obliterate the act. That which the court performs judicially, or orders to be performed, is not to be avoided by the action or want of action of the judges or other officers of the court in their ministerial capacity.” (Emphasis added.) (1 A.C. Freeman, Freeman on Judgements sec. 46 (5th ed. 1925).)

In this case the record of proceedings makes clear that a consecutive sentence of probation was what was ordered and considered; ergo, the requisite findings in support thereof pursuant to section 5 — 8—4(b) of the Unified Code of Corrections. Hence, in crediting defendant with time served on probation in this cause, the period should be counted from May 11,1982, to June 16,1983.

The fact that defendant was placed in jail immediately following the sentencing hearing on March 11, 1982, as a condition of his probation in this cause has no impact in the determination of whether his probation in this cause was consecutive to the term he was already serving.

Defendant also argues that there is no provision in the sentencing act for imposition of consecutive terms of probation. This argument was rejected in People v. Gischer (1977), 51 Ill. App. 3d 847, 366 N.E.2d 521, which we deem to be controlling.

Accordingly, the cause is remanded for issuance of an amended mittimus crediting defendant with the following additional time served: March 11, 1982, to April 1, 1982, which time was served in incarceration as a condition of probation; and May 11, 1982, to June 16, 1983, which time was served on probation prior to the filing of the petition to revoke in this cause. The common-law record is corrected to reflect that defendant was sentenced in this cause to a term of 30 months’ probation consecutive to the term of probation he was then serving. 87 Ill. 2d R. 615.

Record corrected; cause remanded for issuance of an amended mittimus.

GREEN and MILLER, JJ., concur.


text:
    THE VILLAGE OF GRANDVIEW, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD, Defendant-Appellant. THE VILLAGE OF JEROME, Plaintiff-Appellee, v. THE CITY OF SPRINGFIELD, Defendant-Appellant.
    Fourth District
    Nos. 4—83—0620, 4—83—0621 cons.
    Opinion filed March 26, 1984.
    Rehearing denied April 24, 1984.
    Robert M. Rogers, Assistant Corporation Counsel, of Springfield, for appellant.
    Heckenkamp & Simhauser, P.C., of Springfield, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

In these consolidated cases, plaintiffs, the villages of Jerome and Grandview, each brought an identical accounting action against defendant, the city of Springfield. The villages asked the city to account for rates it charged the villages under long-term, bulk-water-supply contracts. The city appeals from an order of the circuit court of Sangamon County granting the villages’ motions for summary judgment. At issue is the proper construction of the water-supply contracts.

In July 1971, the village of Jerome entered into a contract with the city under which the city was to supply water to Jerome for the next 40 years. Under section 2 of the contract, the city could increase or decrease the annual rate to reflect an increase or decrease in the average operation cost and the debt service for long-term funded debt. On October 8, 1974, the village of Grandview entered into a similar contract with the city. Grandview’s contract ran until September 1, 1979, but it was to remain in effect on a year-to-year basis until one party gave notice of termination.

On December 23, 1969, the city passed an ordinance authorizing the issuance of water revenue bonds. The bonds were issued in 1970, and the city set aside $2.25 million of the proceeds for a future water-supply reservoir, called the Lake II project. On December 17, 1974, the city passed a similar ordinance, and $9 million of the proceeds from the second bond issue were set aside for the Lake II project. The water rate the city charged the villages increased every year between 1972 and 1977. Part of this increase was due to the debt service on the bonds issued for the Lake II project.

The city started purchasing land for the Lake II project in 1970. On December 13, 1976, however, the circuit court of Sangamon County dismissed a petition the city had filed to condemn land for use in constructing Lake II. The court held that, because the city council had not yet authorized the construction of Lake II, there was no showing of necessity to take the land by eminent domain. On January 18, 1978, the city council adopted a report that concluded the Lake II project could not be justified on a cost-effective basis for many years in the future. The report recommended that construction of the project be postponed, but land already acquired be retained on the assumption that Lake II would someday be built. The city also appealed the dismissal of the condemnation suit. Based upon the city council’s adoption of the report, the appellate court in City of Springfield v. Miller (1978), 55 Ill. App. 3d 1121 (Rule 23 order), held that the issue was moot and affirmed the trial court.

The city earned rental and crop-sharing income from land it purchased for the Lake II project. The city credited this income to its “Waterworks Bond Construction Fund Account.” In addition, the city invested unexpended funds received from the two bond issues, and this income was also placed into the construction-fund account. The city did not include any of this income in calculating the villages’ water rates under the contracts.

On May 8, 1978, Jerome filed a two-count complaint against the city. Jerome maintained that the rental, crop-sharing, and interest income received from the bond proceeds should have been credited to paying off the interest on the bond issues; therefore, the complaint alleged the city had overcharged Jerome and prayed for an accounting. Grandview filed an identical complaint on June 8,1979.

Both villages then filed motions for summary judgment. The city filed objections and its own motion for summary judgment in each case. The trial court found that there was no genuine issue as to any material fact and granted the villages’ motions for summary judgment. The court found that, under the proper construction of section 2, the villages were entitled to credit in the computation of rate increases for all income the city received from the bond proceeds. The court, therefore, ordered the city to account and to give credit to the villages by way of a refund or credit on future charges.

A preliminary issue involves appellate jurisdiction. The trial court ordered the city to account to the villages; therefore, the court must have retained jurisdiction to approve the accounting. Previously, a judgment that disposed of the rights of the parties was final and appealable, although it reserved an incidental accounting for future consideration. (Barnhart v. Barnhart (1953), 415 Ill. 303, 308, 114 N.E.2d 378, 381; Altschuler v. Altschuler (1948), 399 Ill. 559, 569, 78 N.E.2d 225, 230.) This rule, however, was abrogated. (Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 432, 394 N.E.2d 380, 382.) Supreme Court Rule 304(a) states that a final judgment that disposes of less than all the claims involved in the action may be appealed only if the trial court makes an express, written finding that there is no just reason for delaying enforcement or appeal. (87 Ill. 2d R. 304(a).) The trial court made the proper written finding in this case. Because an accounting action has always been considered a separate matter properly resolved in a separate proceeding, the judgment orders are appealable. 2416 Corp. v. First National Bank (1980) , 91 Ill. App. 3d 961, 969, 415 N.E.2d 420, 427; Pinelli v. Alpine Development Corp. (1979), 70 Ill. App. 3d 980, 1008, 388 N.E.2d 943, 963.

The resolution of this case depends upon the construction given to section 2 of the water-supply contracts, which allows the city to increase or decrease the rate charged “to reflect an increase or decrease in the average operation cost, and the debt service for long term funded debt.” The issue is whether the interest, rental, and crop-sharing income should be included in calculating the “average operation cost, and the debt service for long term funded debt.”

A contract must be enforced according to its terms or not at all, and a court has no authority to compel the party to do something other than that which he has agreed to do in his contract. (Sweeting v. Campbell (1956), 8 Ill. 2d 54, 58, 132 N.E.2d 523, 525.) When construing a contract, the court’s primary objective is to ascertain the intent of the parties as evidenced by the language used. If the terms of a contract are unambiguous, then the intent of the parties must be ascertained solely from the words used; a contract is not rendered ambiguous simply because the parties failed to agree upon its meaning. (Schoeneweis v. Herrin (1982), 110 Ill. App. 3d 800, 806, 443 N.E.2d 36, 41; Joseph v. Lake Michigan Mortgage Co. (1982), 106 Ill. App. 3d 988, 991-92, 436 N.E.2d 663, 665-66.) A contract is ambiguous if its terms are capable of being understood in more than one sense because either an indefiniteness of expression or a double meaning is attached to them. (106 Ill. App. 3d 988, 991, 436 N.E.2d 663, 665.) Ambiguity is a question of law for the court to decide. URS Corp. v. Ash (1981) , 101 Ill. App. 3d 229, 233, 427 N.E.2d 1295, 1299.

The city asserts that the contract is unambiguous and must be enforced according to its plain meaning. The villages contend that section 2 of the contract is ambiguous and that the parties intended to use the income from bond proceeds in calculating the water rates. The contract, however, states that two factors are to be considered in setting the annual water rate. Section 2 defines the first factor, “average operation cost”: “Said average operation cost shall be based on total gallons sold and the following items, exclusive of depreciation; source of supply, purification, distribution, accounting and collecting, and general or administrative expense.” These words should be given their common and generally accepted meaning. (Crane v. Mulliken (1980), 86 Ill. App. 3d 1076, 408 N.E.2d 778.) The definition does not mention income from bond proceeds, nor do its terms imply that the income should be included in calculating average operation cost.

The second factor to be considered is “debt service for long term funded debt.” The villages concede that, when they signed the contracts, this term meant the interest and fractional part of the principal that the city would be required to pay yearly to retire the bonds. Again, income from bond proceeds is not included in this definition. The amount or source of any income does not affect the amount of debt service or the average operation cost; therefore, no ambiguity exists.

The villages maintain that the meaning of the contracts is uncertain because the parties never considered, when the contracts were written, the possibility that the city would delay construction of Lake II. When the contracts were written, all the parties assumed that the city would build Lake II in the near future. The villages assert that “debt service should now be interpreted to include income earned on the bond proceeds.”

In reality, the villages are arguing that a change of circumstances, not an ambiguity, exists. In construing a contract, however, the primary objective is to determine and give effect to the parties’ intentions at the time they entered into the contract. (Cedar Park Cemetery Association, Inc. v. Village of Calumet Park (1947), 398 Ill. 324, 75 N.E.2d 874.) The court cannot add to contracts of parties elements which they did not themselves provide, nor protect one of the contracting parties against subsequent contingency, which would have been advantageous to him, had he but foreseen it. Noll Baking & Ice Cream Co. v. Sparks Milling Co. (1940), 304 Ill. App. 624, 632, 26 N.E.2d 425, 429.

The city’s bond ordinances offer further proof that the contracts are not ambiguous. The 1969 ordinance was in effect before the parties made either contract. The ordinance requires the city to pay off principal and interest on the bonds from the “Bond and Interest Sinking Fund Account,” which the city is to fund from charges it makes for water sold. The ordinance also requires the city to credit investment income from bond proceeds to the construction-fund account. This account is to fund improvements and extensions of the waterworks system; therefore, the city cannot use the investment income to pay off principal and interest on the bonds.

The villages contend that the ordinances were not made a part of the contract, and that they cannot be required to be aware of the city’s ordinances. When a municipal ordinance is applicable to a contract, however, it becomes by operation of law an implied term of the contract. Burns v. Regional Transportation Authority (1982), 112 Ill. App. 3d 464, 472, 445 N.E.2d 348, 354; Lavine Construction Co. v. Johnson (1981), 101 Ill. App. 3d 817, 819, 428 N.E.2d 1069, 1071; Bethel Terrace, Inc. v. Village of Caseyville (1976), 43 Ill. App. 3d 276, 279, 356 N.E.2d 1269,1272.

Finally, the villages argue that the city is reaping a windfall. They assert that they must be given credit for the income on bond proceeds to avoid this inequitable result. The city, however, is not reaping any windfall. The ordinances require the city to place the income into the construction-fund account, and the city has done so. The funds in this account can only be expended for improvements and extensions of the waterworks system, including Lake II. Moreover, the city’s own residents receive no credit for income from bond proceeds when their water rates are calculated.

Even if the city does reap a windfall, the court is not authorized to construe into contracts provisions which are not there. (Abingdon Bank & Trust Co. v. Bulkeley (1945), 390 Ill. 582, 62 N.E.2d 447.) Unless a contract is ambiguous, the court must determine its meaning solely from the words used; the court will not add to a contract provisions which are not there simply to reach a more equitable result. Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Carp. (1946), 395 Ill. 429, 432, 70 N.E.2d 604, 606; National Bank v. West Construction Co. (1976), 41 Ill. App. 3d 686, 689, 355 N.E.2d 43, 47.

For the foregoing reasons, the trial court’s orders are reversed.

Reversed.

GREEN and WEBBER, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
      In re ESTATE OF HAZEL B. OSTER, Deceased (Donald Densberger et al., Plaintiffs-Appellees, v. The First National Bank of Peoria, Ex’r of the Will of Hazel B. Oster, Defendant-Appellant).
    Third District
    No. 3—83—0362
    Opinion filed March 30, 1984.

      David B. Radley, of Baymiller, Christison & Radley, and John Radley, both of Peoria, for appellant.
    John G. Sahn, of Leiter, Leiter and Sahn, Dennis R. Triggs, of Clem & Triggs, P.C., and David B. Mueller, of Cassidy & Mueller, all of Peoria, for appellees.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by the First National Bank of Peoria as executor of the estate of Hazel B. Oster and Shriners’ Hospitals, residuary beneficiary of the estate, from orders of the circuit court of Peoria County entered in a will contest proceeding. The appellees are heirs of Hazel Oster, contestants to her will.

Hazel Oster died testate, leaving the bulk of her estate to Shriners’ Hospitals and naming the bank as executor. The bank petitioned for admission of the will to probate, initially naming 14 heirs and duly notifying them of the probate proceeding. The will was admitted to probate as to this group of heirs. Subsequently, three additional groups of heirs were discovered and with respect to each group the petition was amended, the new heirs duly notified and the will admitted to probate as to such newly discovered group of heirs. In all 36 heirs were ultimately discovered and notified and the will probated as to them as well as unknown heirs. Four of the initial group of heirs commenced this will contest proceeding bringing the action in their own names as well as for the benefit of the class of heirs of the decedent. Other heirs filed their appearances in the will contest proceeding, and two groups of heirs moved for leave to intervene in the will contest. The executor moved to dismiss the will contest complaint as well as the petitions for leave to intervene but the trial court denied such motions and entered orders both certifying the class of heirs described in the complaint and granting the petitions of other heirs to intervene in the proceeding.

On this appeal the executor has argued that class actions in will contest proceedings are improper and therefore the trial court’s certification of the class was erroneous. Additionally, the executor argues leave should not have been granted for the interveners to intervene in the will contest proceeding because such leave was requested after the time had expired for filing a will contest by the groups of heirs.

After the briefs were filed in this case, the appellee moved to dismiss the appeal contending the orders of the trial court were not appealable as a matter of right. In opposition to the dismissal motion appellant argues appeal is proper under Supreme Court Rule 304(b)(1). (87 Ill. 2d R. 304(b)(1).) We took the motion and objections with the case for decision. It is now our conclusion the appeal should be dismissed even though in the orderly administration of justice we regret the motion was not filed at an earlier stage of the appeal. The orders of the trial court from which appeal has been taken are first, the order certifying a class of heirs of the decedent as a class for the purpose of prosecuting the will contest and second, orders granting other heirs leave to intervene in the will contest proceeding.

Because the group certification order was entered in the course of a will contest proceeding, the appellant urges appeal is authorized by Supreme Court Rule 304(b)(1), which provides:

“(b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, conservatorship, or similar proceeding which finally determines a right or status of a party.” (87 Ill. 2d R. 304(b)(1).)

It is the appellant’s position that class certification determines the “status” of the class members within the language of the rule thereby making such order appealable. We believe however the appellant overlooks an additional requirement of the Rule, which is that the order must “finally” determine the right or status of a party.

As observed in Levy v. Metropolitan Sanitary District (1982), 92 Ill. 2d 80, 440 N.E.2d 881, neither certification nor noncertification of a class are final judgments within the ambit of Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)), so that the trial court’s certifi; cation of no just reason to delay appeal is ineffective to make orders regarding class certification appealable. Petruchius v. Don Roth Restaurants, Inc. (1979), 79 Ill. App. 3d 1071, 398 N.E.2d 1228, discusses at length certification or noncertification of classes with respect to appealability under Supreme Court Rule 304(a) and comes to the same conclusion. As observed in the Levy case, the appeal procedure from interlocutory orders described in Supreme Court Rule 308 (87 Ill. 2d R. 308) is the available route.

It is true Supreme Court Rule 304(b)(1) employs different language than 304(a), but its requirements of finality are similar and in our judgment the same reasons for not permitting appeals from certification orders under 304(a) are equally applicable when the same issue arises in a probate proceeding. Appellant’s only option is to seek review under Supreme Court Rule 308 (87 Ill. 2d R. 308), which requires the discretionary concurrence of both the trial court and the court of review.

This brings us then to the appeal from the orders granting heirs leave to intervene. Again, we believe that such orders are not final orders and hence not appealable. The very cases cited by the appellant, Koester v. Yellow Cab Co. (1974), 18 Ill. App. 3d 56, 309 N.E.2d 269, Veterans Travel Club v. Illinois Commerce Com. (1973), 15 Ill. App. 3d 116, 303 N.E.2d 142, and Monticello College v. Scott (1973), 13 Ill. App. 3d 133, 299 N.E.2d 778, are authority only for the proposition that orders denying leave to intervene are appealable, but where intervention is granted no final determination has occurred.

For the foregoing reasons the appeal is dismissed.

Appeal dismissed.

HEIPLE and BARRY, JJ., concur.


author: PRESIDING JUSTICE MILLS

text:
      In re MARRIAGE OF BARBARA G. DONOVAN, Petitioner-Appellee, and DAVID JOHN DONOVAN, Respondent-Appellant.
    Fourth District
    No. 4—83—0315
    Opinion filed March 27, 1984.

      Carl O. Hoffee, of Barber, Hall, Segatto & Hoffee, of Springfield, for appellant.
    Robert G. Heckenkamp, of Heckenkamp & Simhauser, P.C., of Springfield, for appellee.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

David Donovan appeals from an order of the trial court awarding Barbara Donovan separate maintenance and child support.

We vacate — partially—and remand.

The facts are prolix and incorporated only insofar as needed to explain our holding. The fact of prime importance is that between the entry of the original decree of dissolution and the hearing which resulted in the orders David now protests, the marital home was foreclosed on and sold. The foreclosure was the result of David entering into mortgaged indebtedness during a period of separation from his wife.

David raises three issues for consideration by this court. First, whether the award of separate maintenance was improper — either because it was made in lieu of Barbara’s one-half share in the marital home which was lost to foreclosure, or because the evidence revealed that her economic status, vis-a-vis his, was such that the award was an abuse of discretion. Second, whether the award of child support should be modified to terminate solely upon the children’s attaining their majority rather than pending upon a combination of their age and educational circumstances. Third, whether the case should be remanded to allow the court to reconcile the written order entered in the case with the oral pronouncement it was to reflect.

Based on the following discussion, we vacate the order partially and remand for further proceedings consistent with this opinion. We now embark on a discussion of the above delineated issues in reverse cardinal order.

I

All parties to this appeal agree that the written order which was affirmed by the trial court on March 31, 1983, does not accurately reflect the oral pronouncement from the bench. The oral pronouncement specifically stated that the award of maintenance was to end upon Barbara reaching the age of 62. The written order leaves maintenance virtually open-ended, terminating only upon Barbara’s remarriage or further order of the court. Under these circumstances, we were foreordained to send this case back for modification. However, our considered opinion is that simple modification is insufficient under the circumstances.

II

The second issue raised by David is whether child support should be extended beyond the children’s majority to aid them in their college education. The new Marriage and Dissolution of Marriage Act is geared towards the support of children of divorced parents. Awards of child support may be disturbed on appeal only if against the manifest weight of the evidence showing a clear abuse of discretion by the trial court. (Faust v. Faust (1981), 100 Ill. App. 3d 232, 426 N.E.2d 994.) David’s position is that the amount of child support should be reduced based upon a substantial change of his circumstances in that he was unemployed at the time of the final hearing and had no financial resources from which to pay the amounts ordered. Substantial economic reverses resulting from changes in employment are proper circumstances to be considered in determining whether child support should be reduced. Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.

However, the decision of a trial court may be disturbed only if clearly against the manifest weight of the evidence. The evidence at trial at the last hearing was that respondent had no expenses and no job but was clearly an employable person. He was middle-aged, in good health, and well known throughout the community as evidenced by his election to a public body. We are loathe to allow an individual to escape his responsibilities to the offspring of an ill-fated marriage. However, we feel that the uncontroverted evidence in this case was such that the child-support order should have been reduced or modified to reflect respondent’s financial resources which may best be described as limited.

We note an apparent discrepancy in the decree involving property and child support in that in the findings portion of the decree there was no provision that the $140 a month ordered was to apply to children other than Rosemary Donovan, whereas the order following applies it to all the children upon either their emancipation, their graduation from college, their determination not to continue college education, or the attaining of the age of 23 years. We are confident that upon remand the order will be revised to accurately reflect the findings, and feel the trial court should hold further evidentiary hearings on this matter upon remand.

III

Further hearings are also called for by David’s initial prayer for relief. The trial court awarded Barbara separate maintenance in the amount of $150 per month. The award was a reversal of the trial court’s original ruling that neither party was to be awarded maintenance. The only significant intervening factor was the foreclosure on the marital home which the trial court specifically found precluded Barbara from receiving the one-half share to which she was entitled. From this specific finding, David now asks us to infer that the award was made in lieu of property and as such was improper. Barbara responds that the award was proper since both parties agree that the marital property divided between the two parties was so minimal that neither could get by on it alone.

Barbara's argument, however, places the proverbial cart before the horse. Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 504) does provide that the amount of maintenance is to be determined upon consideration of numerous factors including the amount of marital property apportioned between the parties. However, this computation is to be made only after the propriety of the award is made in the first place. The statute provides that a combination of three criteria are to guide the court in its initial determination. The court is first to determine whether the party seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs. This factor is then joined to two others through the use of the conjunction “and,” the final two factors being joined by the disjunctive “or.” The two disjunctively joined factors are an inability to provide support through suitable employment or a lack of sufficient income. Our opinion is that the statute read as a whole indicates the desire of the legislature that awards of maintenance be based solely upon the perceived need of the spouse and not in lieu of marital property.

In the case at hand, the evidence reveals that Barbara’s income for the years 1980 through 1982 averaged approximately $23,700, a sum equal to that made by her husband during their years of marriage. She was living rent free in a home provided by her parents. She also had the wherewithal to establish and fund an individual retirement account. Under these circumstances, we find that it was an abuse of discretion to award her an additional $1,800 annually since she had demonstrated an ability to provide for herself and her children through suitable employment and no lack of sufficient income.

We turn now to the tincture in the iodine. The record reflects that the court, in arriving at the second order which included maintenance, noted that the marital home had been foreclosed on, thereby effectively forfeiting Barbara’s one-half interest. As previously mentioned, David infers from this that the maintenance award was made in lieu of marital property. If this is the case, the award was error. However, the record is equivocal on this point and we believe that the error, if any, may be cured only by further evidentiary hearings.

To our way of thinking, the shenanigans engaged in by David smack clearly of dissipation of marital assets. If this is the case, the parties should litigate the matter fully. From the state of the record before us, the only evidence concerning the $90,000 was that no money was disbursed, the mortgages instead going to further secure existing debts. If the mortgage secured marital debts, Barbara should not be heard to complain that the foreclosure works some hardship on her. On the other hand, this business of a party to a divorce mortgaging marital property during the pendency of the proceedings is quite troubling and becoming a common complaint on appeal. However, the appropriate relief under such circumstances would seem to be a monetary judgment against the party executing the mortgage in an amount equal to one-half the amount of any overage generated when the mortgage value is compared to any marital debts it seeks to cover. Attempting to balance the equities by calling the award “maintenance” is improper.

In conclusion, we vacate the portions of the order awarding Barbara maintenance and child support and remand the cause for further proceedings consistent with this opinion.

Vacated and remanded with directions.

TRAPP and GREEN, JJ., concur.


text:
    FAIRBURY FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. BANK OF ILLINOIS IN NORMAL, Trustee, et al., Defendants-Appellees (Tedd Meyer et al., Defendants; National Bank of Bloomington, Intervenor).
    Fourth District
    No. 4—83—0296
    Opinion filed March 26, 1984.
    William C. Wetzel, of Livingston, Barger, Brandt & Schroeder, of Bloomington, for appellant.
    W. Loren Thomson and Kevin P. Fitzgerald, both of Thomson, Weintraub & Thompson, of Bloomington, for appellees Paul Oates and Kathryn Oates.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff brought this foreclosure action as a result of an alleged violation of the due-on-sale clause in defendant’s mortgage. Defendant Bank of Illinois in Normal (Bank) was the borrower under the mortgage in its capacity as legal trustee in Land Trust No. BC-1. After an evidentiary hearing and filing of authorities by the various parties to litigation, Judge Knecht entered an order against plaintiff. Plaintiff’s motion to vacate the judgment was denied after argument. Plaintiff appeals from the judgment of the circuit court of McLean County. We affirm.

McLean County Land Trust No. BC-1 was established on November 7, 1972, with the Bank as legal trustee and Banill Corporation as owner of the beneficial interest. On May 19, 1976, Banill Corporation assigned all of its beneficial interest in the land trust to Sharon Meyer. Sharon Meyer then signed a note with the Bank and executed a collateral assignment of her beneficial interest in this land trust to the Bank of Illinois to secure the indebtedness. On September 9, 1976, Tedd Meyer, Sharon Meyer’s husband, executed an assignment of his beneficial interest in this land trust to Sharon Meyer. A second tract of land was added to Land Trust No. BC-1.

The mortgage which gave rise to this litigation was entered into on December 10, 1976. The Bank executed a note to plaintiff, a Federal savings and loan association, for $122,800, secured by a 20-year mortgage executed that date. The mortgage instrument lists the mortgagor-borrower as the Bank, as trustee under the provisions of McLean County Land Trust No. BC-1. Paragraph 17 of the mortgage, the due-on-sale clause, states:

“17. Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable.”

The accompanying note was executed by the Bank in its capacity as trustee, with Tedd and Sharon Meyer signing as guarantors. The mortgage was recorded.

On May 1, 1978, Sharon Meyer entered into a contract for deed with defendants Paul F. and Kathryn M. Oates for the real estate which was the subject of Land Trust No. BC-1. The contract for deed was secured by an agreement for warranty deed-deed in escrow arrangement.

On May 2, 1978, Sharon Meyer wrote to the Bank as trustee on Land Trust No. BC-1, directing the Bank to convey the property to the Oates upon completion of the terms of the contract for deed arrangement. She further directed the Bank to draw and sign a trust deed, sign the revenue declaration sheet, and hold these documents in escrow along with the contract for deed.

Under the terms of Meyer’s contract with the Oates, the buyers were to pay the full remaining balance of the purchase price of $240,000 by May 1, 1979. The Meyer-Oates contract set forth options under which the Oateses could extend the time for payment in full as late as May 1, 1981. Apparently plaintiff was not notified of the contract for deed agreement or of the agreement for warranty deed-deed in escrow arrangement. Rather, plaintiff learned thereof upon receipt of an insurance policy on the property taken out by the Oateses.

Plaintiff sent Meyer an agreement under which plaintiff would consent to the transaction. This agreement included terms increasing the interest rate on the loan, requiring payment of a service charge for each of the “three years that the contract has to run,” and a term requiring payment of the mortgage in full at the end of the three-year period. The Bank refused to sign the agreement with this “balloon” term. Plaintiff was aware of the Bank’s position. A substitute agreement was signed by Meyers and the Bank and returned to plaintiff. The substitute agreement did not include the “balloon term,” or any term reducing the 20-year period within which the mortgage was to be paid. The substitute agreement was received and read by plaintiff. Plaintiff made no objection to the substitute agreement, and accepted payment of the increased interest rate, the service charge and mortgage payments through May 1981. When the loan was not fully paid in May 1981, plaintiff refused to accept further payments and notified defendants it would seek foreclosure. Payments were subsequently placed into an escrow account.

Judge Knecht entered an order on December 21, 1982, finding as follows:

“1. The assignment of a beneficial interest in a land trust does not trigger a due on sale clause. The only interest Sharon Meyer could transfer was that of a beneficial interest in a land trust.
2. Any transfer or transfers that did occur did not violate the due on sale clause in Fairbury’s mortgage.
3. It would be inequitable to permit Fairbury to assert the violation, if any existed.
4. Fairbury accepted the terms of the agreement proposed by the Meyers in 1978 which omitted the three year balloon and there has been no default on that agreement.”

The court denied plaintiff relief.

On January 13, 1983, plaintiff filed a motion to vacate the judgment order on the ground that the trial court was prohibited from interfering with its enforcement of the due-on-sale clause by reason of the presumption doctrine as enunciated in Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 73 L. Ed. 2d 664, 102 S. Ct. 3014. The trial court concluded that de la Cuesta did not preempt a State court from finding that no sale or transfer cognizable under the due-on-sale clause of the mortgage had occurred. The court further found that plaintiff had accepted the terms of the substitute agreement proposed by the Meyers and could not renege on that agreement. The judge denied plaintiff’s motion.

Plaintiff’s position on appeal is that the agreement for warranty deed-deed in escrow arrangement violated the due-on-sale clause of the mortgage because the Bank, as legal trustee, in fact, executed a deed which purported to transfer the property to the Oateses. Plaintiff argues that the fact that the Bank held the deed pending completion of the terms of the contract for deed is not controlling, but that the execution of the deed itself triggered the due-on-sale clause. In support of its position, plaintiff’s counsel referred the court at oral argument to joint exhibit No. 6 as the deed from the Bank to the Oateses.

Examination of joint exhibit No. 6 shows that this deed has not, in fact, been executed by the Bank as trustee. Rather, the portions to be signed and notarized in execution are blank. The document reflects that attorney Thomas J. Loveless, who represented Sharon Meyer, prepared the instrument by typing in a description of the land trust property and other general information on November 7, 1978. Examination of the record reveals no deed executed by the Bank. As the trustee’s deed was not executed by the Bank, but merely held in its files, and given the plain language of the mortgage, we conclude that the due-on-sale clause was not triggered as the borrower had not sold or transferred any interest in the property.

Under Illinois law, the land trust is an arrangement under which pursuant to statute (Ill. Rev. Stat. 1981, ch. 29, par. 8.31), legal and equitable title to real property is held by the trustee and the interest of the beneficiary is personal property. (First National Bank v. Oldenburg (1981), 101 Ill. App. 3d 283, 427 N.E.2d 1312; Wachta v. First Federal Savings & Loan Association (1981), 103 Ill. App. 3d 174, 430 N.E.2d 708.) Thus, while the beneficiary may be interested in the terms by which the property of the trust is sold, if the nature of the Illinois land trust is to be preserved, the powers of the beneficiary and the trustee must be kept distinct. (Madigan v. Buehr (1970), 125 Ill. App. 2d 8, 260 N.E.2d 431; Schneider v. Pioneer Trust & Savings Bank (1960), 26 Ill. App. 2d 463, 168 N.E.2d 808.) Mere delivery of a deed into escrow does not convey title when the conveyance is contingent upon the occurrence of an event which entitles the grantee to possession of the deed. Huber v. Williams (1930), 338 Ill. 313, 170 N.E. 195; Johnson v. Wallden (1930), 342 Ill. 201, 173 N.E. 790; Hirschberg v. Russell (1943), 317 Ill. App. 329, 45 N.E.2d 886.

We agree with the trial judge that nothing in de la Cuesta prohibits a State trial court from making the determination required in this case, i.e., whether the underlying transaction was such as to trigger the due-on-sale clause under the plain language of the mortgage. We note that in de la Cuesta the appellees had essentially purchased from the appellant’s borrowers and, in so doing, took subject to the deeds of trust held by the appellant. Under California law, the positions of the parties to a trust deed differ from those of parties to an Illinois land trust. Under California law the legal title is conveyed to the trustee solely for the purpose of security, leaving in the trustor or his successors a legal estate in the property, as against all persons except the trustees and those holding under them. The trustor is treated as the holder of legal title. MacLeod v. Moran (1908), 153 Cal. 97, 94 P. 604; Hamel v. Gootkin (1962), 202 Cal. App. 2d 27, 20 Cal. Rptr. 372.

The Supreme Court regarded the underlying transaction in de la Cuesta as outright transfers of security property. (Fidelity Federal Savings & Loan Association v. de la Cuesta (1982), 458 U.S. 141, 170-71 n.24, 73 L. Ed. 2d 664, 686 n.24, 102 S. Ct. 3014, 3031 n.24.) In de la Cuesta, the Supreme Court found that Federal regulations governing due-on-sale clauses in mortgage instruments issued by Federal savings and loan associations barred application of the rule of Wellenkamp v. Bank of America (1978), 21 Cal. 3d 943, 582 P.2d 970, 148 Cal. Rptr. 379, against such associations. Wellenkamp limited exercise of due-on-sale clauses to those cases where the lender could demonstrate that the transfer impaired its security.

In view of our resolution of this issue, we decline to discuss the remaining issue raised by plaintiff, whether the trial court erred in finding that it would be inequitable to permit plaintiff to assert the alleged violation of the due-on-sale clause, since plaintiff had accepted the terms of the substitute agreement consenting to the sale and there had been no default on that agreement.

Affirmed.

GREEN and WEBBER, JJ., concur.


author: PRESIDING JUSTICE ALLOY

text:
    JAMES DENTON et al., Plaintiffs-Appellants, v. ESLIE O. HOOD, Defendant-Appellee.
    Third District
    No. 3—83—0554
    Opinion filed March 27, 1984.
    William G. Schick, of Arndt, Schubert, Andich, Williams & Schick, of Rock Island, for appellants.
    Theodore A. Jackson, of Jackson & Pulsifer, of East Moline, for appellee.
   PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Plaintiffs James Denton and Ruth Denton appeal from the judgment of the circuit court of Rock Island County finding in favor of defendant Eslie Hood in their breach of contract and fraud action against Hood. In 1979, the Dentons entered into an installment agreement for warranty deed with Eslie Hood, for the purchase of some real estate in Rock Island County. In November 1982, they filed the instant action against Hood, alleging that he was guilty of fraud and misrepresentation at the time of the agreement. Reliance, for their contract theory, was based upon paragraph 14 of the articles of agreement for warranty deed, which paragraph stated:

“Seller’s Warranty. The seller, as owner of the premises, warrants that no notice has been issued and received by the seller or seller’s agent from any city, village or other governmental authority of a dwelling code violation, which presently exists in any dwelling structure on the premises covered by this contract.”

The underlying basis for both theories was the fact that Hood, prior to the sale, had received a notice that the garage structure on one parcel was in violation of the county zoning, and had not conveyed that information to the buyers. The trial court heard the evidence, some of which was conflicting, and found for the defendant Hood on both theories. The Dentons appeal and contend that the court erred in its construction of paragraph 14 of the contract and the statutory provision upon which it is based. (Ill. Rev. Stat. 1981, ch. 29, par. 8.22.) They also argue that the court erred in concluding that the evidence was insufficient to prove breach of contract or fraud on Hood’s part.

The record reveals that the subject real estate has been zoned R-l residential since before the time Eslie Hood acquired the property. After his acquisition, Hood submitted blueprints for a single-family residential structure to be built on one parcel of the property. A building permit for the construction of a residence on that property was issued to him by appropriate county authorities. However, the structure built on the property, while in accordance with the outside dimensions of the residence blueprints, was never finished as a residence. Instead, Hood utilized the building as a garage, for the storage of equipment and maintenance work on equipment. In January 1979, the office of zoning code enforcement for the county of Rock Island sent Hood a letter about the property. The letter indicated that code enforcement had examined the property and discovered that the building was being used to store automobiles. It advised Hood that the property was zoned R-l single-family residential, and that the use of the building as a storage facility or body shop was not a permitted use under that zoning. Hood was informed that the storage of vehicles constituted a violation of county zoning resolutions. It does not appear, from the record, that any further action was taken subsequent to the letter, by either Hood or the county. At least until James Denton took possession, the status quo ante prevailed.

Also, in 1979 plaintiff James Denton, having heard the “garage” property might be for sale, contacted defendant Hood about possible sale. Hood was interested in selling both the garage property and another piece of property, across the road from the garage, which had a residence on it. The Dentons and Hood reached an agreement on a purchase price of $60,000 for the two properties. Testimony from the parties about the conversations concerning the two properties was somewhat contradictory. James Denton testified that he told Hood that he wanted to use the garage to work on his cars. When the two walked through the garage, Denton noticed the storage use made of it by Hood. According to Denton, Hood told him he could use the property to work on his cars in the garage. Eslie Hood admitted that he probably did tell James Denton he could work on his cars there, since Hood himself used the garage to work on his trucks and equipment. Hood also testified, however, that he did tell Denton that the property was zoned single-family residential. While admitting that he did not tell Denton that he had to build a house on the property, he maintained that Denton was informed about the zoning classification. Hood also gave Denton the original blueprints for the house and other pertinent documents. Hood also testified that, aside from the letter, no one ever bothered him about his working on the machinery in the garage. It was also established that at no point during their conversations did Denton inquire about zoning, or zoning violations, and Hood did not mention the previous notice of violation received from the county zoning office.

' Testimony from zoning authorities indicated that the use of the property as a garage, for working on autos or other equipment, was contrary to the residential zoning of the area, and that such use would only be proper as an accessory use to a residence on the property. Denton testified that he did not have the financing to complete the residence structure so as to comply with zoning and be permitted to work on his cars on the property.

The articles of agreement for warranty deed between James Den-ton, his mother, Ruth, and Eslie Hood were signed, and James moved into the house across the street and began working on cars on the garage property. In June of 1980, the code enforcement officer sent him a letter indicating that the presence of unlicensed and inoperable vehicles on the property was in violation of the county zoning ordinance respecting the property. The letter to Denton indicated that further inspections would follow to determine if the violations had been cured. At about this time, faced with having to discontinue using the garage for his automobile work, Denton contacted Hood. Through his attorney, Denton demanded a refund from Hood of all moneys paid by the Dentons, being $29,828.61, toward the purchase of the property under the contract for deed. Hood refused to make any refund, and this suit followed.

Other pertinent evidence before the court indicated that the Den-tons had made all payments required under their purchase contract, up to the date of demand for refund, although the timeliness of those payments had not been in strict accordance with the provisions of the contract.

The trial court in this bench trial found in favor of the defendant Hood. The court concluded that paragraph 14 of the contract was not intended to cover zoning violations, but rather different types of dwelling code violations. The court also found that the parties had examined the land without representation or inquiry into the legality of a commercial use, and that fraud, either by express statement or by concealment, had not been shown by clear and convincing evidence. From the findings and the judgment of the court, plaintiffs appeal.

The first issue is whether the court correctly determined that paragraph 14 of the contract was not intended to include, as dwelling code violations, the zoning violation notice received by Hood prior to the sale to the Dentons. We have set forth that provision previously, and, as both parties accept, the provision and its warranty were included so as to comply with section 2 of “An Act relating to installment contracts to sell dwelling structures.” (Ill. Rev. Stat. 1981, ch. 29, par. 8.22.) Section 2 states:

“After the effective date of this Act, any installment contract for the sale of a dwelling structure shall be voidable at the election of the buyer unless there is attached to the contract or incorporated therein a certificate of compliance, or in the absence of such a certificate (i) an express written warranty that no notice from any city, village or other governmental authority of a dwelling Code violation which existed in the dwelling structure before the installment contract was executed had been received by the contract seller, his principal or his agent within 10 years of the date of execution of the installment contract, or, (ii) if any such notice of violation had been received, a list of all such notices so received with a detailed statement of all violations referred to in such notice. The requirements of this section cannot be waived by the buyer or seller.” (Ill. Rev. Stat. 1981, ch. 29, par. 8.22.)

“Dwelling structure” is defined by the statute as “any private home or residence, or any building or structure to be occupied or resided in by 12 or less family units.” (Ill. Rev. Stat. 1981, ch. 29, par. 8.21(b).) The Act defines “dwelling code” as:

“any municipal or county ordinance, building code, or law establishing construction, plumbing, heating, electrical, fire prevention, sanitation or other health and safety standards applicable to dwellings.” (Ill. Rev. Stat. 1981, ch. 29, par. 8.21(c).)

Statutory provisions are to be construed in accordance with the plain meaning of the language utilized by the legislature, and where the language is unambiguous, a court ought not restrict or enlarge upon the legislative intent as expressed in the language used. (Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 133, 302 N.E.2d 313.) We find the statutory provisions to be unambiguous and not applicable in the instant case in the manner suggested by appellants. Initially, it must be noted that the garage property, while originally designed as a residence, had not been finished as a residence, nor was it used as a residence. On the facts, it does not come within the statutory definition of “dwelling structure,” as incorporated into the contract. Furthermore, “dwelling code” has a narrower scope, as defined in the statute, than argued by appellants. The focus in the statute is upon health and safety standards as applicable to dwellings, whether relating to construction, plumbing, heating, electrical, fire or sanitation. County ordinances are encompassed by the statutory provisions, but only those ordinances relating to health and safety standards for dwellings. The violation of which Hood was notified related to an impermissible use of the property within its residential zoning classification. It did not relate to any violation of health and safety standards for the structure. We do not believe that the zoning violation such as found in this case was intended by the legislature to be covered by section 2 of the Act. The plain language of the statute indicates a narrower focus, one directed toward the safety and habitability of residential dwellings. A purpose behind the statute is to require any such violations to be divulged, and part of the reasoning is that it is burdensome and difficult for a purchaser to obtain such information from the variety of code enforcement agencies potentially involved. (See Shanle v. Moll (1975), 25 Ill. App. 3d 113, 116, 323 N.E.2d 148.) With respect to information on zoning classification and permissible uses, such information is readily available at one location, the zoning office of the applicable governmental unit.

In conclusion, we find no error in the court’s construction of paragraph 14 of the contract, as viewed within the context of the applicable statutory provisions. There was no breach of the warranty contained in the contract by virtue of Hood having previously received the notice of zoning violation. Accordingly, we turn next to the questions of fraud and misrepresentation.

The Dentons contend that the court erred in its finding that fraud had not been shown by clear and convincing evidence. As already noted, however, the evidence respecting the conversations between the parties prior to execution of the contract was contradictory. It is axiomatic that the trial judge, as the fact finder, was in the best position to determine questions of credibility and weight. (Expert Painting v. Perrin Corp. (1981), 93 Ill. App. 3d 683, 417 N.E.2d 839.) The record does not establish that Hood made any express warranties to Denton concerning the legality of permissible uses. Hood indicated that he told Denton that the property was zoned single-family residential. He also gave him the pertinent blueprints and documents pertinent to the garage property. Hood’s statement to Denton that Denton could use the garage property to work on automobiles was not made in the context of a discussion of permissible zoned uses, but rather after Denton’s noting that the property had been used by Hood for storage and work. While Hood had received a notice of violation about his use of the property, he had apparently continued to use the property for storage without consequence. Moreover, Denton never specifically inquired about zoning, permissible uses under residential zoning, or prior zoning violation notices. Given the contradictory evidence, and the circumstances of the conversations, we do not believe the court erred in failing to find that plaintiffs had proven the requisite scienter by clear and convincing evidence. While fraud by concealment is sufficient to recover on a fraud theory, the court’s finding that the evidence did not establish intentional concealment is supported in the record. We will not overturn the findings of the court with respect to the weight and credibility of the evidence.

For the reasons stated, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

HEIPLE and STOUDER, JJ., concur.


text:
    CARL SODERSTROM et al., d/b/a Midwest Prairie Invitational Partnership, Plaintiffs-Appellants, v. ROCK RIVER VALLEY PIGEON CLUB, INC., Defendant-Appellee.
    Third District
    No. 3—83—0384
    Opinion filed March 9, 1984.
    David L. Higgs, of Sutkowski & Washkuhn Associates, of Peoria, for appellants.
    Arthur G. Greenberg, of Teplitz, Morris & Greenberg, of Peoria, for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

This appeal arose from a contract action in which the Midwest Prairie Invitational Partnership, engaged in the business of transporting homing pigeons to and from races and calculating the results of races, sued the Rock River Valley Pigeon Club, Inc. (the Club), for breach of contract. The complaint contained two counts; (1), that an oral contract existed to which the defendant raised as a defense to enforcement, the Statute of Frauds and (2), a written contract. The judge of the circuit court of Tazewell County dismissed both counts of plaintiff's second amended complaint. We do not agree that the complaint should have been dismissed as to the written contract because plaintiff’s complaint alleged sufficient facts to find that a written contract existed between the parties.

The second amended complaint alleged that on April 20, 1981, plaintiffs mailed a signed copy of the contract to the defendant. The contract was signed by the officers of the Club and plaintiffs were notified by phone that the contract was signed. All facts well pleaded in the complaint must be taken as admitted in deciding whether plaintiffs’ complaint stated a cause of action. (Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App. 3d 943, 428 N.E.2d 1028.) We believe that the complaint stated the existence of a signed written contract.

The Club argues that the failure to deliver the signed agreement to the offeror was fatal because actual delivery was a condition precedent to contract formation. Because the complaint did not allege actual delivery we must consider whether the failure to deliver was indeed fatal to this contract. Clearly delivery is not an essential element to the formation of a contract unless the offer specifies actual delivery as an essential part of acceptance of the offer. Otherwise, acceptance may be by any reasonable means. (12 Ill. L. & Prac. Contracts sec. 30 (1983).) In this case the contract contained the following sentence “If the above terms are acceptable to the Partnership, please sign and return a copy of the letter to me” which defendant argues mandates that actual delivery is necessary to acceptance. We do not agree. From the record it is obvious that the trial judge relied upon the rule that delivery is an essential element of any contract formation rather than deciding that this contract clearly required delivery.

In Lakshman v. Vecchione (1981), 102 Ill. App. 3d 629, 430 N.E.2d 199, the court considered similar wording in a contract and found that it did not limit the manner of acceptance. Considering the record as a whole, the court in Lakshman concluded “that once the fact of defendant’s acceptance was communicated to plaintiffs by defendants’ attorney, a valid contract existed.” This complaint alleges in count I that

“8. The contract was then signed by the officers of Defendant and Defendant communicated this fact to Plaintiffs though Defendant retained the signed contract.
9. As recently as January of 1982, Defendant communicated to Plaintiffs that the contract was fully signed and executed and that Defendant intended to abide by the terms of the contract.”

Taken as true, these allegations in the plaintiffs’ complaint indicate that defendant’s acceptance was by reasonable means and was communicated to plaintiffs. In fact the parties apparently performed under the contract for at least a one-year period.

We find that the contract did not require actual delivery as a condition precedent to contract formation and, therefore, that the complaint contains sufficient allegations that acceptance was made by reasonable means.

We agree, however, that the oral contract alleged in count II of the complaint would be unenforceable because of the Statute of Frauds, which defendant raised as a defense in his motion to dismiss. Furthermore, plaintiffs’ complaint does not allege any performance on the part of the Partnership which was not paid for by the Club. The delinquency alleged in the complaint were for annual dues and operating costs accrued in 1982, not part performance for which a court may order restitution.

We, therefore, affirm the decision of the circuit court of Tazewell County dismissing count II of the complaint and reverse as to count I and remand count I to the circuit court for further proceeding consistent with this opinion.

Affirmed in part, reversed in part.

SCOTT and BARRY, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL D. SIERRA, Defendant-Appellant.
    Second District
    No. 83—927
    Opinion filed April 11, 1984.
    G. Joseph Weller and Robert Hirschhorn, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

Defendant, Russell D. Sierra, pleaded guilty to count I of an amended information charging him with the offense of theft committed on October 23, 1983, "in that he knowingly obtained by means of deception, temporary use of labor or services of Jerry Kopecky, which labor or services are available only for hire, in that he obtained taxicab transportation from Jerry Kopecky and thereafter failed to pay for such transportation, and the said defendant having been previously convicted of theft in the Circuit Court of Winnebago County, Illinois on July 23, 1971,” in violation of section 16 — 1(e) and section 16 — 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 16 — 1(e), 16 — 3(a)).

In substance, the information in this cause charged the defendant with felony theft under the enhancement provisions of section 16 — 1(e) on the grounds that the defendant had committed the offense of theft of labor or services under section 16 — 3(a) after having previously committed another theft. After a sentencing hearing, defendant was sentenced to a term of two years in the custody of the Department of Corrections. Thereafter, the defendant’s motion made pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)) to withdraw his plea of guilty was denied, and the defendant has appealed.

On appeal defendant has raised the single issue that the trial court had no statutory authority under section 16 — 1(e)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)(1)) to enhance the offense of theft of labor or services to a Class 4 felony on the grounds that he had previously been convicted of theft. Defendant requests that this court reduce the degree of his conviction from a Class 4 felony to a Class A misdemeanor and enter the appropriate sentence thereon. The State has not responded to this contention other than to assert that the defendant has waived this issue because he failed to raise it in his Rule 604(d) motion to withdraw his guilty plea. 87 Ill. 2d R. 604(d); People v. Bartik (1981), 94 Ill. App. 3d 696, 698.

We agree with defendant that the enhancement provisions of section 16 — 1(e)(1) do not provide any statutory authority for the enhancement of theft of labor or services or use of property as defined in section 16 — 3 to a felony offense. In reaching this conclusion we have abided by recognized rules of statutory construction: the cardinal rule is to ascertain and give effect to the true intent and meaning of the legislature (People v. Boykin (1983), 94 Ill. 2d 138, 141); the language used in the statute is a primary source to determine that intent (see People v. Haron (1981), 85 Ill. 2d 261, 266); and where the language is certain and unambiguous the proper function of the court is to enforce the statute as enacted (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358, 363). We are also aware that any ambiguities in a penal statute, particularly in the case of enhancement provisions, must be resolved in favor of the defendant (People v. McCarty (1983), 94 Ill. 2d 28, 34-35; People v. Hobbs (1981), 86 Ill. 2d 242) and that we are required to apply a policy of lenity in interpreting criminal statutes (People v. Haron (1981), 85 Ill. 2d 261, 277-78).

Sections 16 — 3 and 16 — 1 deal with two different types of theft. Section 16 — 3(a) deals solely with theft arising out of the temporary use of property, labor or services of another and only where the property, labor or services are for hire and the offender obtains the temporary use thereof by means of threat or deception or knowing that such use is without consent of the person providing the property, labor or services. Section 16 — 3(c) provides that a person convicted of such offense is guilty of a Class A misdemeanor. There are no enhancement provisions contained in section 16 — 3.

Section 16 — 1 deals with the more serious offense of theft of property and includes a broad category of types of theft, but the common element which permeates all thefts set forth in section 16 — 1 is that the owner will be permanently deprived of the use or benefit of his property. The relevant sentencing provision of that section provides as follows:

“Theft of property, other than a firearm, not from the person and not exceeding $300 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.” (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(e)(1).)

Read in context, the words “second or subsequent offense” in the second sentence of the foregoing subparagraph refers to the offense of “theft of property” as set forth in the first sentence. It is evident that by this language the legislature intended to enhance the penalty for the conviction of certain types of theft of property as defined in section 16 — 1, to a Class 4 felony.

While theft of labor or services or the use of property is included within the meaning of the term “any type of theft” in section 16— 1(e)(1) and a conviction of such an offense might have been used as a basis to enhance the penalty for the conviction of theft of property, the converse is not true. There is no suggestion contained in the language of section 16 — 1(e)(1) that the legislature intended to deal other than with the theft of property as defined in section 16 — 1. If the legislature had wished to enhance the penalty for a second or subsequent conviction of the offense of theft of labor or services or the use of property as defined in section 16 — 3, it could have expressly provided for such enhancement in that section and as it specifically did in section 16 — 1(e)(1) theft of property, section 16 — 5(c) theft from coin-operated machines, and section 16A — 10 retail theft of property. The absence of such an enhancement provision in section 16 — 3 strengthens our conviction that the legislature did not intend to provide any authority for enhancing the penalty for the conviction of a second or subsequent offense of theft of labor or services or the use of property from a misdemeanor to a felony. The trial court erred in applying the enhancement provision of section 16 — 1(e)(1) to the offense of theft of labor or services or the use of property set out in section 16 — 3.

The State argues that any error committed by the trial court should be considered waived, since defendant did not raise it in his Rule 604(d) motion. (87 Ill. 2d R. 604(d); People v. Bartik (1981), 94 Ill. App. 3d 696, 698.) However, we have concluded that the court did not have the statutory authority to convict and sentence the defendant for a felony theft, so that such a conviction or order, which significantly restricted the liberty of the defendant, was a nullity. (See People v. McCarty (1983), 94 Ill. 2d 28, 37.) In addition, since the information was insufficient to charge the defendant with the commission of a felony, his guilty plea to such a felony must also be held for naught. (See People v. McCarty (1983), 94 Ill. 2d 28, 39.) Because the error committed affected the substantial rights of the defendant, we have, under the plain error doctrine (87 Ill. 2d R. 615(a)), chosen not to apply the waiver rule of Rule 604(d) (87 Ill. 2d R. 604(d)).

Since the defendant could not have been convicted for felony theft for failing to pay the driver of the taxi cab, the sentence based on that conviction was void (People v. McCarty (1983), 94 Ill. 2d 28, 40) and requires, not reduction, but reversal of the judgment of conviction and sentence.

Reversed.

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