author: JUSTICE LINDBERG

text:
    SHATKIN INVESTMENT CORPORATION, Plaintiff-Appellee, v. THOMAS J. CONNELLY III, Defendant (Richard Morton et al., Respondents-Appellants).
    Second District
    Nos. 83—848, 83—880 cons.
    Opinion filed November 1, 1984.

      Douglas Drenk and David Drenk, both of Guerard, Konewko & Drenk, Ltd., of Wheaton, for appellants.
    James S. Barber and Nathan M. Cohen, both of Arvey, Hodes, Costello & Burman, of Chicago, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Lee A. Dominguez (Dominguez or citation respondent) and Richard Morton (Morton or citation respondent) appeal from orders of the circuit court of Du Page County finding them in contempt of court for failing to answer certain questions propounded by Shatkin Investment Corporation (Shatkin or judgment creditor) during a citation proceeding intended to discover income or assets of Thomas J. Connelly III (Connelly or judgment debtor). Dominguez and Morton both contend that the trial court erred in allowing Shatkin to ask questions about the time period preceding the issuance of the citations, in allowing Shatkin to accept affidavits of compliance from other citation respondents, in entering orders which violated their constitutional rights, and in holding them in contempt of court. Dominguez also asserts he properly refused to answer questions based upon the attorney-client privilege and that the trial court abused its discretion in fining him for the contempt. Since we find the trial court committed no reversible errors, we affirm.

On November 29, 1977, Shatkin filed a complaint against Connelly for judgment on a promissory note in the amount of $303,377 plus interest at the rate of 5%. On February 6, 1979, judgment was entered in favor of Shatkin for $323,071.78 plus costs. On March 6, 1979, Shatkin had a citation to discover assets issued against Connelly, and on April 3, 1979, an alias citation to discover assets was issued and served on judgment debtor. Three separate rules to show cause were issued against Connelly for failure to appear for his citation, and finally, a writ of attachment was issued against him.

In July 1983, James Carney, an officer of judgment creditor, learned that Connelly was in Du Page County. An order for an alias writ of attachment was issued for judgment debtor at Churchfield Management and Investment Corporation (Churchfield), and a Du Page sheriff’s officer went there to serve the writ, but was denied access to serve judgment debtor. The next day, Shatkin had issued and served upon Churchfield a citation to discover assets, a wage deduction summons, a non-wage-garnishment summons, affidavits and interrogatories. Dominguez, a vice-president of Churchfield, accepted service. Dominguez was also served personally with a citation to discover assets in a non-wage-garnishment summons. Six other businesses located in the office building where judgment debtor was sighted were served with citations.

Morton filed on August 12, 1983, Churchfield’s answers to interrogatories to employer in response to judgment creditor’s wage garnishment stating that judgment debtor was not employed by Church-field on August 4, 1983, the day the wage deduction summons was served. Morton also responded that an interrogatory asking the date of employment of judgment debtor with Churehfield was not applicable.

On September 9, 1983, Churehfield filed its appearance, and Morton appeared in court to testify for Churehfield in response to the citation to discover assets served on Churehfield. Each time judgment creditor’s counsel asked Morton a question about Churchfield’s relationship with judgment debtor or about property owed to judgment debtor prior to August 4, 1983, the day after the sheriff tried to serve judgment debtor at Churehfield, Churehfield objected. The trial court overruled Churchfield’s objections, and Churchfield’s counsel advised Morton not to answer. The trial court found Morton in contempt for refusing to answer the questions propounded by judgment creditor, and ordered Morton incarcerated for a period not to exceed six months, but stated he could purge himself by answering the questions. Morton’s jail term was stayed pending this appeal.

On September 24, 1983, George Olson of Charter Mortgage Corporation signed a sworn affidavit stating that between October 1982 and May 1983 judgment debtor had sought financing from Charter Mortgage Corporation on behalf of Churehfield. Both Morton and Dominguez filed separate notices of appeal which were subsequently consolidated by this court.

Morton first contends that the trial court erroneously held him in contempt for refusing to answer certain questions propounded by judgment creditor. Section 2 — 1402 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1402(a)) provides:

“A judgment creditor, or his or her successor in interest when that interest is made to appear of record, is entitled to prosecute supplementary proceedings for the purposes of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement of the judgment therefrom, a deduction order or garnishment, and of compelling the application of non-exempt assets or income discovered toward the payment of the amount due under the judgment.”

This statute is to be construed liberally. (Second New Haven Bank v. Kobrite, Inc. (1980), 86 Ill. App. 3d 832, 835, 408 N.E.2d 369, 371.) According to Supreme Court Rule 277 (73 Ill. 2d R. 277(a)), which governs citation procedure:

“A supplementary proceeding authorized by section 73 of the Civil Practice Act may be commenced at any time with respect to a judgment upon which execution may issue. The proceeding may be against the judgment debtor or any third party the judgment creditor believes has property of or is indebted to the judgment debtor. If there has been a prior supplementary proceeding with respect to the same judgment against the party, whether he is the judgment debtor or a third party, no further proceeding shall be commenced against him except by leave of court. The leave may be granted upon ex parte motion of the judgment creditor, but only upon a finding of the court, based upon affidavit of the judgment creditor or some other person, having personal knowledge of the facts, (1) that there is reason to believe the party against whom the proceeding is sought to be commenced has property or income the creditor is entitled to reach, or, if a third party, is indebted to the judgment debtor, (2) that the existence of the property, income or indebtedness was not known to the judgment creditor during the pendency of any prior supplementary proceeding, and (3) that the additional supplementary proceeding is sought in good faith to discover assets and not to harass the judgment debtor or third party.”

The examination of the debtor or third party shall be before open court and the court is directed to conduct the proceeding to protect the rights of all parties and to avoid harassment. (73 Ill. 2d R. 277(e).) To promote these goals, the court is authorized to punish for contempt any person who fails to obey an order of the court issued in a supplementary proceeding. 73 Ill. 2d R. 277(h).

Morton contends that the numerous questions he refused to answer were either irrelevant, invaded Churchfield’s privacy, or exceeded the scope of questioning permissible at a supplementary proceeding. The unanswered questions can be grouped into two general categories: those relating specifically to Morton and Churchfield and those relating to Churchfield’s knowledge of and relationship with judgment debtor. The five questions in the first group are not sufficiently related to the location of judgment debtor’s assets to warrant a contempt citation. For example, knowledge of Morton’s home address, whether he resides in Du Page County, or about the names of Churchfield’s employees is not relevant to the location of judgment debtor's assets absent additional information. The second group, however, contains questions which are material to the inquiry. For example, judgment creditor asked whether Churchfield had ever done business with the judgment debtor, had ever been owed money by or owed money to judgment debtor, had ever employed or received things of value from judgment debtor, and asked other questions relating to Churchfield’s past relationship with judgment debtor.

Morton objected at trial and reasserts on appeal that these questions were improper because they were not limited to Churchfield’s knowledge after August 4, 1983, the day Churchfield was served with the citation. Any relationship between Churchfield and judgment debtor prior to that time, Churchfield asserts, is irrelevant. We disagree. The statute does not limit the scope of the questioning to the period following issuance of the citation. Employing a liberal construction of the statute, we find the questions asked by judgment creditor about the prior period are capable of eliciting information concerning the location of judgment debtor’s assets. Churchfield should not be allowed to circumvent the purpose of the proceedings by limiting his questions to the one-month period between receipt of the citation and its appearance before the court. Apart from the generalized and unsubstantiated privacy invasion concerns advanced by Churchfield, we see no reason for preventing judgment creditor from asking about past financial relationships between judgment debtor and Churchfield or any justification for Churchfield’s failing to answer these questions.

Also unpersuasive is Churchfield’s argument that it had already answered the questions in the form of written interrogatories submitted prior to the proceeding. Nothing in the statute precludes a judgment creditor from asking in court questions which were asked in the interrogatories. Furthermore, the interrogatories consisted of two court forms — “Interrogatories To Employer” and “Interrogatories To Garnishee” — which were very limited in scope. In response to the one relevant question in the former form, Churchfield responded “N/A” (not applicable). On the latter form, Churchfield responded in the negative to two questions asked: (1) whether at the time of receiving the summons it possessed property belonging to judgment debtor and (2) whether once served it was indebted to judgment debtor at all. These questions do not duplicate the questions asked by judgment creditor at the supplementary proceeding, which focused on the financial and employment relationship between Churchfield and Connelly prior to the issuance of the citation.

Morton’s reliance on Fischer v. Kellenberger (1979), 73 Ill. App. 3d 550, 392 N.E.2d 733, is misplaced. There, an ex-wife attempted to use the supplementary citation proceeding to require her former in-laws to disclose the location of their son. Here, judgment creditor’s questions are intended to uncover any previous financial and employment relationship between judgment debtor and Churchfield to facilitate the location and collection of judgment debtor’s assets. Thus, Kellenberger is distinguishable.

Dominguez raises a different argument in favor of reversing his contempt citation. He asserts that requiring him to disclose the name of his client would have forced him to violate the attorney-client privilege and would be unethical. Recognizing that the general rule in Illinois is that the privilege does not extend to the identity of an attorney’s client (People v. Williams (1983), 97 Ill. 2d 252, 257), he seeks to avoid its application by arguing that judgment creditor already knew with whom it was contending and thus, disclosure of his client was unnecessary.

Judgment creditor argues, and we agree, that the identity of Dominguez’ client was not protected by the attorney-client privilege. Mere assertion of the privilege or refusal to answer is not enough to cloak a communication (Cox v. Yellow Cab Co. (1975), 61 Ill. 2d 416, 420), and the burden of establishing the privilege rests on the party asserting it. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 119.) The scope of the privilege is narrow. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103.) The identity of the lawyer’s client is outside the scope of the privilege except in those rare instances when application of the privilege is shown to be in the public interest (E. Cleary & M. Graham, Handbook of Illinois Evidence 209 (3d ed. 1979)), or will harm the client in some substantial way. (People v. Williams (1983), 97 Ill. 2d 252, 295.) Dominguez cites to no such public interest or substantial prejudice here. Dominguez’ argument that because judgment creditor knew the identity of his client, it was justified in not disclosing the client’s name is unpersuasive. As the record discloses, judgment creditor did not know for certain the identity of Domingeuz’ client. Were judgment creditor to have known the identity, such knowledge would seem to warrant confirmation of the client’s identity by Dominguez, not protection of the “secret.” Since disclosure of the identity of an attorney’s client provides proof of the existence of the relationship, provides the opposing party with proof that his opponent is not solely a nominal party, and provides proof to the court that “the client whose secret is treasured is actual flesh and blood” (see Annot., 16 A.L.R.3d 1047, 1050 (1967)), Dominguez was not justified in refusing to disclose the identity of his client based upon the attorney-client privilege.

We also find unpersuasive Dominguez’ argument that disclosure would have constituted unethical behavior. Canon 4 (87 Ill. 2d Canon 4) provides that “a lawyer should preserve the confidences and secrets of a client.” In interpreting the scope of this canon, Formal Opinion 403 (Illinois State Bar Association Opinions on Professional Ethics, Formal Op. 403 (1973)) concluded that it would be unethical for a lawyer to fail to disclose the name and address of his client. The attorney in his request for the opinion stated he had completed income tax returns for several clients and had reason to believe that at least one client had not filed his return. Although Dominguez relies upon Formal Opinion 403, its facts are distinguishable from those at bar. The opinion noted that one relevant factor when considering disclosure is whether release of the client’s name would be detrimental or would embarrass the client. Based on the facts presented in Formal Opinion 403, disclosure of the name and address of the client would have provided the Internal Revenue Service with sufficient information to initiate an investigation. Therefore, the disclosure would have substantially prejudiced the attorney’s client. Here, disclosure of the name of Dominguez’ client could not have jeopardized his client absent disclosure of additional information. Dominguez’ reliance on Illinois State Bar Association Opinion 538 (Illinois Bar Association Opinions on Professional Ethics, Formal Op. 538 (1976)) also is misplaced. There, the opinion specifically stated that disclosure of the address would not be unethical and would not violate Canon 4. Therefore, Dominguez’ argument that disclosure would be unethical based upon Formal Opinion 538 is without basis.

Both Morton and Dominguez next contend the trial court erred in finding them in direct contempt because their conduct was not calculated to embarrass, hinder or obstruct the court, to derogate from its authority or dignity, or to bring the administration of law into disrepute. Judgment creditor responds that because the judge’s order was a civil and not a criminal contempt citation, citation respondents’ intent is irrelevant.

Contempt proceedings generally have been classified as either civil or criminal, although each may entail characteristics possessed by the other. (County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131.) Criminal contempt often involves an attempt to undermine the court’s authority, has a punitive as opposed to a coercive purpose, and is intended to protect the judicial process, and its punishment cannot be avoided simply by complying with the court order. (In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 364 N.E.2d 430.)

“In contrast, civil contempt proceedings are prospective in nature and usually instituted where a party has failed to perform an affirmative act which that party had been ordered to do for the benefit of the opposing party. In effect, a civil contempt proceeding is but a continuation of the original proceeding which resulted in the order or decree. The court seeks to compel obedience to its order by punishment which the contemnor can avoid by compliance with the order or by punishment imposed until there is compliance. [Citations.] It has been said that criminal contempt consists in doing what has been prohibited whereas civil contempt consists in refusing to do what has been ordered.” (49 Ill. App. 3d 885, 891-92, 364 N.E.2d 430, 435.)

Our review of the proceedings convinces us that the orders involved here are civil in nature. In both orders, the court specifically stated the contemnors could purge themselves of the contempt sanctions by answering the questions propounded by judgment creditor. Also, the orders were entered principally to benefit judgment creditor and not to punish Morton and Dominguez. Compare National Metalcrafters v. Local 449 (1984), 125 Ill. App. 3d 399, 465 N.E.2d 1001.

In cases involving civil contempts generally, the intent of the contemnor is not relevant. As the supreme court stated in concluding that the intent of the defendant was not relevant in determining whether the defendant could be held in civil contempt of an agreed order:

“ ‘The absence of wilfulness does not relieve from civil contempt. *** Since the purpose [of civil contempt] is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of [the contemner’s] mind ***. It laid on them a duty to obey specified provisions of the statute. An act does not cease to be a violation of a law and of a decree merely because it may have been done innocently.’ ” (County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 137, quoting McComb v. Jacksonville Paper Co. (1949), 336 U.S. 187, 93 L. Ed. 599, 69 S. Ct. 497.)

See also 17 Am. Jur. 2d Contempt sec. 8 (1964).

Defendant’s attempt to circumvent this rule by relying on isolated language of this court in Kauk v. Matthews (1981), 100 Ill. App. 3d 107, 426 N.E.2d 552, that intent is relevant in some civil cases is unavailing. There, the trial court refused to issue a rule to show cause why the third-party citee should not be held in contempt. (100 Ill. App. 3d 107, 108, 426 N.E.2d 552, 553.) On appeal, the judgment creditor argued that the trial court erroneously denied his request for the rule to show cause. Since this issue would necessarily arise in the proceedings following a remandment, this court analyzed judgment creditor’s assertion that his rule to show cause should have been granted and rejected his contention:

“In the case at bar, from our review of the record it cannot be said that Barber-Greene’s failure to withhold funds was of such a nature that it would amount to a civil contempt for which the court should enter an order to vindicate its authority and dignity.” (100 Ill. App. 3d 107, 115, 426 N.E.2d 552, 558.)

Since the court concluded that the third-party citee’s action did not amount to civil contempt, Kauk is distinguishable from the facts here, where the refusals of Morton and Dominguez to answer Shatkin’s questions did constitute civil contempt.

Citation respondents next argue that the trial court erred in allowing judgment creditor to accept six written affidavits of compliance from the other citees while refusing to accept the affidavits of compliance of citation respondents, and argue that this disparity in treatment evidences judgment creditor’s intent to harass them and results in an injustice. Morton and Dominguez assert that the trial court violated Supreme Court Rule 277(e) (87 Ill. 2d R. 277(e)), which empowers the court to terminate the citation order “to the end that the rights and interests of all parties and persons involved may be protected and harassment avoided.” Nothing in Rule 277, however, requires the court to have terminated this proceeding or to have treated all citees equally. Rather, the rule indicates that the court should examine each citation individually to determine the likelihood of uncovering judgment debtor’s assets by questioning the citee. In this case, judgment debtor had been observed entering the building in which Churchfield’s offices are located, and Churchfield had refused a sheriff’s request to enter his offices to serve judgment debtor. The record contains no similar evidence which linked judgment debtor to the other citees. Refusal to admit the sheriff alone justified continuing the citation proceedings against these citation respondents. We find no abuse in the disparity in treatment accorded the different citees.

Morton and Dominguez next argue that their contempt orders should be reversed because the orders fail to specify the act or acts upon which the contempts were based. The court’s September 9, 1983, order entered against Morton states:

“IT IS HEREBY ORDERED THAT:

(1) Richard Morton is found to be in contempt of court for failure to answer questions ordered to be answered by him in this citation.

* * *

(4) Richard Morton may purge himself if said contemnor answers the questions which he refused to answer.”

Judgment creditor correctly states that the trial court’s order is to be read by the reviewing court in conjunction with the record. (People v. Baxter (1972), 50 Ill. 2d 286, 289-90.) Review of the record makes clear that Morton refused to answer specific questions propounded by judgment creditor. The order states that Morton was held in contempt for refusal to answer these questions. Accordingly, no basis exists for Morton’s conclusion that the order when read in combination with the record is unspecific and unclear.

The record similarly makes clear that Dominguez was held in contempt for refusing to take the stand and answer even the most basic question; the identity of his client or former client. As Dominguez’ attorney stated:

“MR. DRENK: Both of them are here, Judge, and I can indicate to the Court that Mr. Dominguez is going to take the attorney-client privilege. It has not been waived by a possible former client. He is not willing to indicate to Mr. Barber that Mr. Connelly was or was not his client and he is not willing to indicate anything he has or any knowledge he has of the whereabouts and he is going to stand behind the attorney-client privilege until that is waived by Mr. Connelly, having represented him in the past.”

Based upon this refusal to take the stand, the court entered its contempt order stating, “Lee Dominguez is found to be in contempt of court for refusing to take the stand and answer questions under oath and citation at the court’s direction as propounded by plaintiff’s counsel.” Because the order and record read together are clear, and contain the necessary facts, Dominguez’ assertion that the order is defective is without basis.

Dominguez next asserts that the trial court erred in ordering him to pay a fine of $100 for failing to testify. The power to punish for contempt is inherent, and courts may exercise discretion in fashioning appropriate remedies for a party’s contumacious behavior. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.) Some authorities suggest that a fine can be imposed for civil as well as criminal contempt. (See Rothschild & Co. v. Steger & Sons Piano Co. (1912), 256 Ill. 196, 200-01; 47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 234, 371 N.E.2d 294, 298; Eberle v. Green (1966), 71 Ill. App. 2d 85, 93, 217 N.E.2d 6, 10.) The purpose of civil contempt sanctions is “to coerce future compliance with a court-entered order.” (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 452, 453 N.E.2d 820, 824, cert. denied (1984), _ U.S. _, 80 L. Ed. 2d 539, 104 S. Ct. 2153.) Here, the trial judge specifically stated in the contempt order that Dominguez can purge himself of the fine by answering the questions. A trial court’s determination of contempt will not be disturbed unless against the manifest weight of the evidence where the record discloses an abuse of discretion. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448, 453 N.E.2d 820.) We cannot conclude that the trial court abused its discretion in fining Dominguez.

As their final assignment of error, citation respondents contend that the trial court orders violated certain of their constitutional rights. Specifically, they contend Supreme Court Rule 277 (87 Ill. 2d R. 277) as applied in this case violated their due process rights, and Morton further argues his right to be free from unreasonable seizures was violated. Neither argument is convincing.

The essence of citation respondents’ due process argument is that certain citees were allowed to submit affidavits of compliance, while Morton and Dominguez were forced to appear at the hearing. Citation respondents have waived this constitutional argument, for no authority was cited to support their positions apart from quotations from one decision which defined due process. (See 87 Ill. 2d R. 341(e)(7).) Even if the merits are addressed, we are unpersuaded by their due process argument. In effect, Morton and Dominguez are complaining of disparity in treatment which would suggest, if anything, an equal protection violation. As judgment creditor notes, citation respondents received the procedural due process safeguards: notice and summons to appear for the proceeding, a full hearing before the court, representation by counsel, an opportunity to testify and present arguments, and an opportunity to appeal the court’s ruling. Further, in contrast to their assertion, unsubstantiated by the record, that judgment creditor had no basis to proceed solely against them, the record indicates Churchfield refused the request of a sheriff to look for judgment debtor on its premises. The sighting of judgment debtor near Churchfield, coupled with its refusal to cooperate with the sheriff’s officer, supports pursuing the citation against Churchfield and accepting the affidavits of compliance from the other tenants in the same building.

Morton’s argument that Supreme Court Rule 277 (87 Ill. 2d R. 277), as applied, violates his right to be free from unreasonable seizures similarly is unpersuasive. In his appellate brief, Morton makes no reference to any portion of the record where he raised this argument to the trial court. The general rule is that the person asserting an invasion of his constitutional rights has the duty to raise the objection at the earliest fair opportunity, and the failure to do so operates as a waiver of the right. (See Feldman v. Board of Trustees (1982), 108 Ill. App. 3d 1127, 1134, 440 N.E.2d 147, 152.) In addition, Morton cites no authority for his contention, but rather simply quotes verbatim the text of the fourth amendment (U.S. Const., amend. IV) and then cites one case for the proposition that the fourth amendment is made applicable to the State through the fourteenth amendment (U.S. Const., amend. XIV). The failure of a party to cite authority in support of his argument that his constitutional rights have been violated constitutes a waiver of that argument. (87 Ill. 2d R. 341(e)(7); Department of Transportation v. Association of Franciscan Fathers (1981), 93 Ill. App. 3d 1141, 1150-51, 418 N.E.2d 36, 43-44.) Therefore, we conclude Morton has waived his fourth amendment claim.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and SCHNAKE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCHNAKE

license: Public Domain

text:
    KEITH ENSLEN, Petitioner-Appellant, v. THE VILLAGE OF LOMBARD et al., Respondents-Appellees.
    Second District
    No. 2—83—0978
    Opinion filed October 30, 1984.

      Robert W. Smith and Mark D. Nomady, both of Hillside, for appellant.
    John B. Murphey, of Ancel, Glink, Diamond, Murphy & Cope, of Chicago, for appellees.
   JUSTICE SCHNAKE

delivered the opinion of the court:

This appeal presents a question of pleadings only. Petitioner, Keith Enslen, brought this action in the circuit court of Du Page County seeking a judgment rescinding his previous resignation of April 19, 1983, and restoring him to the position and rank of lieutenant with the fire department of the village of Lombard, as well as compensatory and punitive damages. A judgment was entered granting respondents’ motion to dismiss, and it is from this judgment that the petitioner appeals.

Petitioner filed a petition and two amended petitions, each stating, in essence, the same factual basis for the relief sought. Petitioner alleged, among other things, that the respondent John Corbly was the fire chief of the Lombard fire department and, as such, was the agent of the respondent village of Lombard; that while acting within the scope of his agency and employment, respondent John Corbly told the petitioner that if he did not resign by noon the following day that he (Corbly) would file dismissal proceedings against the petitioner for inhaling nitrous oxide (laughing gas) on duty; that he (Corbly) would tell the newspapers of the charges and also that petitioner was an alcoholic and had been involved with the police concerning his marriage; that he (Corbly) had been in contact with an attorney and was told that he could do this, so that the petitioner was in a “no win” sitúation. Petitioner then alleged that as a direct result of the above “coercion, duress, undue influence and wrongful compulsion” exerted by the respondents, the petitioner resigned. It is petitioner’s position that this resignation, based on duress and undue influence, is voidable.

The trial court dismissed both amended petitions for failure to state a cause of action in that they did not allege that the basis of the threat to initiate dismissal proceedings, namely the sniffing of nitrous oxide on duty, was without a prima facie factual basis. The trial court held, in other words, that to plead duress as a ground for rescission the petitioner must allege that the respondent had no basis in fact for threatening to dismiss the petitioner. Our task, therefore, is to determine whether the second amended petition set forth all the elements of a cause of action.

Duress is a condition where one is induced by a wrongful act or threat of another to make a contract under circumstances which deprive one of the exercise of free will. (Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 185.) The acts or threats must be “wrongful” if they are to constitute duress. (25 Ill. 2d 181, 186.) Wrongfulness is not limited to acts that are criminal, tortious or in violation of a contractual duty, but extends to acts that are wrongful in the moral sense. 25 Ill. 2d 181, 186.

Duress does not exist, however, where consent to an agreement is secured because of hard bargaining positions or the pressure of financial circumstances unless the conduct of the party obtaining the advantage is shown to be tainted with some degree of fraud or wrongdoing. (Alexander v. Standard Oil Co. (1981), 97 Ill. App. 3d 809, 815, 423 N.E.2d 578, 582-83.) Nor is it duress to threaten to institute civil suits, or to declare that one intends to use the courts to insist upon what he believes to be his legal rights, at least where the threatened action is made in the honest belief that a good cause of action exists, and does not involve some actual or threatened abuse of process. (Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 187.) Therefore, where a resignation is given to avoid a dismissal proceeding which has at least a disputed basis in fact, it is not considered to be given under duress. It is only where there is no prima facie factual basis for invoking the dismissal procedure that such a threat could amount to duress, if the threat has also left the individual bereft of the quality of mind essential to the making of a contract. Piper v. Board of Trustees (1981), 99 Ill. App. 3d 752, 426 N.E.2d 262.

The parties do not dispute that this is a correct statement of the substantive law governing this case, but rather dispute only the pleading requirements of the case. Respondents argue that the petitioner must specifically allege that the threat to initiate dismissal procedures was without even a disputed basis in fact. The petitioner argues that he does not have to deny that such a factual basis exists unless the respondents first plead that they have a basis for the dismissal threat, beyond the threat itself, such as an admission or criminal conviction of the petitioner or at least that the petitioner has been formally charged with a dismissal offense.

In Piper, a community college employee sought to rescind her resignation on the basis of duress. She alleged, in part, that she was a longtime employee, had received an evaluation of “average” in April, had received a one-year contract in April to begin in July, and that on July 18 she was told if she did not resign a letter of immediate dismissal would be forthcoming. The Appellate Court for the Third District, in upholding her complaint as stating a cause of action and reversing the trial court’s dismissal, stated;

“Plaintiff alleged that there was no basis for the institution of dismissal proceedings, as there was in Ragen. Implicit in the holding in Ragen is an indication that a resignation obtained in order to avoid dismissal proceedings which have at least a disputed basis in fact will not be considered as being under duress, even though the employee has become nervous and fearful. Contrariwise, when there is no prima facie factual basis for invoking dismissal procedure and this is combined with severe emotional strain and confusion, a factual question is raised as to the existence of duress or undue influence, and the trial court was in error in holding as a matter [of] law that they were absent. Odorizzi.” Piper v. Board of Trustees (1981), 99 Ill. App. 3d 752, 758-59, 426 N.E.2d 262, 266.

We read this case as holding that the critical difference between the pleadings in Ragen (People ex rel. Marcoline v. Ragen (1971), 132 Ill. App. 2d 523, 270 N.E.2d 643), which were dismissed for failure to state a cause of action, and the pleadings in Piper, which did state a cause of action, was Piper’s specific allegation that there was no factual basis for initiating the dismissal procedures against her and that this allegation was necessary to state a cause of action. Therefore, the present case is controlled by Piper, and the trial court’s dismissal of the petitioner’s complaint for failure to state a cause of action was correct.

Our interpretation of Piper on this issue is supported by two Federal cases, Rich v. Mitchell (D.C. Cir. 1959), 273 F.2d 78, cert. denied (1961), 368 U.S. 854, 7 L. Ed. 2d 52, 82 S. Ct. 91, and Autera v. United States (U.S. Ct. Cl. 1968), 389 F.2d 815, which are persuasive. These cases hold that an employer does not act illegally or improperly in telling an employee that he can choose between facing charges or resigning. In fact, in giving the employee the option to resign, the employee’s supervisor is humanely exceeding his requirements rather than threatening action which he has no authority to take. (389 F.2d 815, 817.) Therefore, without a specific allegation that the employer knew or believed that the proposed charges were false, the plaintiff cannot state a cause of action because the plaintiff would not have alleged any “wrongful act or threat” as required for duress. Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 185.

Petitioner argues that the Piper and Ragen cases establish an additional pleading requirement, beyond what is normally required for duress, which does not apply to this case. Under Laemmarr v. J. Walter Thompson Co. (7th Cir. 1970), 435 F.2d 680, and Gerber v. First National Bank (1975), 30 Ill. App. 3d 776, 332 N.E.2d 615, petitioner argues that the “wrongful act or threat” requirement for pleading duress is met simply by the employer’s threat to dismiss even if the dismissal would be legal. Therefore, the allegation requirement that the threat of dismissal be made without a prima facie factual basis, under Piper and Ragen, is an additional allegation requirement only meant to apply in cases such as Ragen where the employee had been formally charged with misconduct. Petitioner reasons that this is because the formal bringing of charges in Ragen added an increased indicia of reliability that the charge of misconduct was not groundless and thus warranted the increased pleading burden applied. Since the mere private threat of dismissal in this case did not carry with it this increased indicia of reliability, the increased pleading burden under Piper and Ragen does not apply here.

Petitioner’s argument fails from the outset, however, in that his two cited cases, Laemmarr and Gerber, are inapplicable to this case and therefore give no guidance in interpreting Piper and Ragen. In Laemmarr, the employees were threatened with dismissal if they did not resell their stock to the company or its officers and, after having done so, were attempting to rescind their sale. In Gerber, an attorney whose practice consisted largely of handling matters for the bank suggested a business venture to one of the bank’s directors. The director borrowed a substantial amount of money for the venture, and when the venture failed, the bank’s officers demanded Gerber’s note for one-half the loss and threatened to terminate his work for the bank if he did not give it. The attorney, after having given the note, raised the defense of duress to the bank’s collection efforts. These cases involved a dismissal threat that, while not illegal since both were employees at will, was arguably morally wrong in that it was based on acts unrelated to the employee’s on-the-job performance. Thus, in both these cases the “wrongful act or threat” requirement for duress had been sufficiently pleaded under Kaplan, which held that morally wrong conduct can be sufficient to constitute duress. These cases are inapplicable here, however, where the threat to initiate dismissal procedures was based on alleged misconduct that occurred on the job, because a supervisor does not act improperly in any respect when he simply and humanely gives the employee the option of facing charges or resigning. Rich v. Mitchell (D.C. Cir. 1959), 273 F.2d 78; Autera v. United States (U.S. Ct. Cl. 1968), 389 F.2d 815.

Therefore, the requirement of pleading that there was no prima facie factual basis for the threat of dismissal under Piper is not an added pleading burden beyond what is normally required to plead duress and only applicable to certain cases, as petitioner argues. Rather, it simply requires the petitioner to plead that the act or threat allegedly constituting duress was wrongful. This has always been a requirement in pleading duress.

Petitioner’s second contention is that even if the dismissal threat did not constitute duress by itself, the remaining allegations were sufficient to state a cause of action. We believe that this contention is controlled by Kaplan and must fail. In Kaplan, a husband sued to rescind the property settlement agreement he made with his wife on the theory of duress, alleging that the wife threatened to cause him great embarrassment by publicizing photographs she had of him with another woman. The Illinois Supreme Court, in upholding the trial court’s dismissal of the complaint, stated:

“The only other threat attributed to Elaine Kaplan by the allegations of the complaint is that she threatened to publicize the photographs and occurrence by other means calculated to cause great embarrassment to plaintiff, the other woman, and the latter’s family. Even if we assume, without deciding, that the threat of an outraged and humiliated wife to publicize the affair of her husband is wrongful in a moral sense, it is our opinion that this allegation is not sufficient to entitle plaintiff to the relief he seeks. While the defense of duress has developed along liberal lines, we are not prepared to say as a matter of law that a threat of personal embarrassment, particularly under the circumstances reflected in the pleadings, was such as to control the will of the plaintiff, or to render him bereft of the quality of mind essential to the making of a contract. We have said before that duress is not shown by subjecting one to annoyance or vexation, (Stoltze v. Stoltze, 393 Ill. 433, 442; Burandt v. Burandt, 318 Ill. 218, 226,) and it is our belief that a threat of personal embarrassment does not rise above annoyance and vexation.” Kaplan v. Kaplan (1962), 25 Ill. 2d 181, 187-88.

Similarly here, the only other threatened act on which the petitioner could base a claim of duress was respondent’s alleged threat to tell the newspapers that the petitioner was an alcoholic and had been involved with the police concerning his marriage. Under Kaplan these allegations are insufficient, as a matter of law, to render the petitioner bereft of the quality of mind essential to making a contract.

Petitioner’s last contention was that his petition stated a cause of action for undue influence. This contention fails for at least two reasons. First, the petitioner must allege specific facts tending to establish the existence of a fiduciary relationship. (Bridge v. Newridge Chemical Co. (1967), 88 Ill. App. 2d 337, 232 N.E.2d 551; Nechanicky v. Morton Park Federal Savings & Loan Association (1961), 32 Ill. App. 2d 444, 178 N.E.2d 197.) The second amended petition does not allege any facts that tend to establish a. fiduciary relationship between the petitioner and the respondents. In fact, the petitioner does not allege, even in a conclusory fashion, that a fiduciary relationship existed. Petitioner argues in his brief that a fiduciary relationship can arise in any number of ways, even by mere friendship, and that the trier of fact must examine all the circumstances surrounding the relationship to determine if one existed. This does not, however, excuse the petitioner from pleading the specific facts upon which he is alleging that a fiduciary relationship arose. Second, the holding of the Piper case, that without an allegation that there was no prima facie factual basis for the dismissal a cause of action could not be stated, extended both to duress and undue influence. Piper v. Board of Trustees (1981), 99 Ill. App. 3d 752, 758-59, 426 N.E.2d 262, 266.

Accordingly, the judgment of the trial court, in dismissing the petitioner’s second amended petition, is hereby affirmed.

Judgment affirmed.

LINDBERG and UNVERZAGT, JJ., concur.


author: JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE COLEMAN, Defendant-Appellant.
    Fifth District
    No. 5—82—0329
    Opinion filed November 8, 1984.
    Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.

      John R. Clemons, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE JONES

delivered the opinion of the court:

Following a jury trial, the defendant, Joe Coleman, was convicted of armed robbery and sentenced under the statute relating to habitual criminals (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1) to life imprisonment without parole. On appeal, the defendant contends (1) that he was not proved guilty beyond a reasonable doubt because of the insufficiency of evidence linking him to the crime charged and the lack of evidence of use of a deadly weapon, (2) that the trial court erred in allowing the prosecution to impeach defense witness Sandra Coleman with her prior inconsistent statement, and (3) that the statute mandating life imprisonment for habitual criminals violates due process and is unconstitutional under article I, section 11, of the Illinois Constitution. We affirm.

The defendant was charged with the armed robbery of James Clough, an attendant at Lyerla’s Texaco Station in Murphysboro, which occurred on November 24, 1981. At trial, Clough testified that on the evening in question he closed the Texaco station at about 7 p.m. and went to his car. He was carrying a bank bag containing $640. He opened the car door, threw the bank bag on the seat and started to enter the car. He heard a noise at the front of the automobile and got out of the car, at which time he saw a black man standing on the other side of the open car door. The man was facing Clough, with the car door between them, and was a foot and a half to three feet away.

Clough testified that the man “had something orange in his hands,” which Clough thought was “either a can of mace or a pistol or some type of weapon.” The man pointed this object at Clough’s face and said, “Hey man, be cool. Stay here.” At that time Clough turned and ran to some gasoline pumps about 50 to 100 feet from the car. Clough stated that he did this because he “figured that [the robber] had a weapon and that he would shoot me or spray me, cause some type of harm to me.” When Clough reached the pumps, he glanced back and saw the man bending over in Clough’s car. When he returned to his car later with a police officer, the money bag was missing.

Clough stated that during this confrontation he was able to view the robber’s face for at least 10 seconds. There was light in the alley where the incident occurred from a streetlight across the street on the corner and from the lights of the Dairy Queen across the street from the station. In addition, a little light came from the windows of a trailer located on the edge of the parking lot and from a couple of lights that were left on in the station itself.

Later that night, Clough gave a statement to the police in which he described the man who had confronted him at the station as being about 22 years of age and a little taller than 5’ 7”. Clough further stated that the robber had “a little bit of a beard” and was wearing a red or orange sock-hat and bluish-gray mechanic’s overalls. Clough also told the police that the man had something orange in his hands that “could have been a can of mace or a pistol.”

On November 27, three days after the incident, Clough selected the defendant’s picture from an array of five photographs shown him by the police. At that time, he commented that “it looked like the person [who had robbed him] but [that he] wasn’t absolutely sure.” Clough explained at trial that the reason for his hesitancy was that he “was still scared that the person would come after [him], that he would still try to kill [him] or seek revenge in some way.” Later that same evening, Clough called the officer who had shown him the photographs and, after viewing the photographs again, positively identified the defendant’s photo as that of the man who had robbed him. At trial, Clough again identified the defendant as the perpetrator of the robbery.

Another witness for the State, Trace Brown, testified that at about 6:40 p.m. on November 24, he saw two “average” size black men run to a 1979, 1980, or 1981 “rusty red” AMC Spirit automobile that was parked in the vicinity of the robbery in Murphysboro. The car’s license plate number was tentatively noted by Brown as UB 1995. The two men entered the vehicle and drove off rapidly without turning on the car’s headlights. Brown could not identify the two men but stated that he could tell by the way they were running that they were not old. At least one of the men was carrying a paper bag, and one of them had a “stocking” hat on.

Later that evening, Brown reported what he had seen to the police because he thought it “looked funny.” While driving around with a Carbondale police officer at about 10 that night, he again saw this AMC Spirit automobile parked on Washington Street in the northeast part of Carbondale. At trial, Brown identified photographs of the defendant’s AMC Spirit automobile as the car he had seen in Murphysboro on the evening of the robbery.

Carbondale police detective Don Strom testified that at 7 p.m. on November 24 he received a radio dispatch relating that an armed robbery had just occurred in Murphysboro. The suspects’ getaway car was described as a dark-colored AMC Spirit, possibly bearing Illinois registration of UB 1995. Strom proceeded to the 200 block of North Washington Street in Carbondale, an area known as the “Square,” in search of the described vehicle. He remained in that vicinity until about 8:10 p.m. without seeing the car. Strom then left the area and returned at 8:22 p.m., at which time he saw a car matching the description he had been given sitting at 2111/2 North Washington Street.

Strom parked his car nearby and kept the AMC Spirit under observation. About 11:15 p.m., a black male entered the car and drove away. After stopping the car, Detective Strom arrested the driver, whom he identified as the defendant. After a search, three 12-gauge shotgun shells were found and removed from the defendant’s jacket pocket.

En route to the Carbondale police station, the defendant stated that he had been in the Palms Lounge on the Square since about 6 that evening. Upon further questioning at the police station, the defendant stated that he had given his car keys to a friend during the course of the evening but that the keys had been returned to him at most 12 minutes later. He also stated that when he went to his car at 11:15 that night, it was parked in the same spot where he had parked it earlier.

The defendant’s car was towed to the police department and searched with his consent. On the floor in front of the passenger seat, the police found an orange and white towel with a 12-gauge sawed-off shotgun in it. A loaded revolver was found inside the pouch of the door on the driver’s side of the defendant’s automobile.

Strom testified further that the defendant was 42 years of age and 5’ 10” tall. At the time of his arrest, the defendant had a beard and was wearing a blue shirt and blue pants, a tan leather jacket and a cowboy hat. Strom stated that the defendant told him he was carrying the three shotgun shells in his pocket “in case his brother-in-law asked him to go rabbit hunting.”

Sandra Coleman, the defendant’s wife, was the last prosecution witness. She testified that on the evening of November 24 her husband left home about 6 or 6:15 p.m. and did not return home again that night. The prosecutor at this point claimed surprise and asked to have Sandra Coleman declared a hostile witness. The court so ruled, and the State questioned the witness regarding a statement she had made to the police that the defendant had returned home at 7:40 p.m. on the night of the robbery and then had left again at 8 or 8:30 p.m. to return to the Square. Sandra Coleman acknowledged having made this statement but disavowed its truth, saying that at the time she made the statement, it had been less than 24 hours after her husband’s arrest and she “was upset” and “had no idea of really what was going on.”

The defendant presented a number of alibi witnesses who testified to the effect that the defendant had been in the Palms Lounge in Carbondale at the time the robbery occurred. Florence Blythe, a patron of the bar, stated that she saw the defendant in the Palms at 6:30 p.m. and did not see him leave before she left around 10 p.m. About 7 p.m., she saw the defendant hand some keys to a black man she did not know. William Cook stated that he saw the defendant’s car leaving the Square when he (Cook) arrived in the area shortly before 7 p.m. He did not see who was in the vehicle, but he went into the Palms, where he talked with the defendant between 6:55 and 7:15 p.m. Cook admitted on cross-examination that he had been fined for theft a few years previously. David Cavitt, a friend of the defendant’s, recounted that he was in the Palms between 3:30 and 11 p.m. on the date in question. He saw the defendant in the lounge around 6 p.m. and did not see him leave during the evening. Cavitt had previously served a sentence for armed robbery.

Edna Bradsfield, a barmaid at the Palms, testified that she saw the defendant when she arrived at work about 6 p.m. on November 24 and did not see him leave before about 10 or 11 p.m. She stated that she probably would have noticed if the defendant had gone from the bar for an hour. Bradsfield stated that the defendant “ran a tab” for his drinks that night, which was approved by the lounge owner and signed by the defendant about 7 p.m. The owner, Russell Branch, testified that he saw the defendant in the Palms around 6 p.m. and approved his request to “run a tab” at that time.

The final defense witness was Charles Fenderson, who had been charged along with the defendant with the armed robbery of a nearby Derby station in Murphysboro on the same evening as the Texaco station robbery. After pleading guilty to the armed robbery of the Derby station, Fenderson testified that he and another man named Larry Parker had left the Square in the defendant’s car “a little before six” on November 24 on their way to Murphysboro. In Murphysboro the two robbed the Derby gas station but did not commit a second robbery. They then returned to Carbondale and parked the defendant’s car on a side street across from the Palms. Upon entering the Palms, Fenderson saw the defendant, who appeared to be drunk.

Fenderson stated that between 8 and 8:30 that night he saw Parker carrying “an orange and white striped towel concealing something.” Parker took the item to the defendant’s car and put it inside on the passenger side.

On cross-examination, Fenderson stated that, at about 7:30 p.m. on November 24 he left the Square with the defendant, Parker and another individual. The four drove to a neighborhood in Carbondale, where they discussed committing a burglary. After deciding that the break-in was not well planned, the group returned to the Palms.

At the close of the evidence, the jury found the defendant guilty of the armed robbery of James Clough. A sentencing hearing was held at which the State presented evidence that the defendant had been convicted of three previous armed robberies in 1964, 1969, and 1975. Based upon this evidence, the court found that the defendant was a habitual criminal and sentenced him to imprisonment for natural life.

On appeal from this conviction and sentence, the defendant contends that the evidence at trial was insufficient to prove beyond a reasonable doubt that he committed the offense charged. He asserts initially that the identification testimony of eyewitness James Clough was uncertain and hesitant, resulting from an inadequate opportunity for observation, and that there was a significant discrepancy between the robber’s age and appearance, as described by Clough, and the defendant’s actual age and dress at the time he was arrested. The defendant contends that since this identification testimony was “less than positive,” the testimony of his five alibi witnesses cannot be disregarded.

It is well settled that the testimony of a single identification witness, if positive and credible, is sufficient to support a conviction. (People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915.) Precise accuracy in the description of an'assailant is not necessary where a witness is able to make a positive identification under conditions adequate for observation (People v. Brown (1977), 50 Ill. App. 3d 348, 365 N.E.2d 907), and any discrepancies in a description go to the weight of the identification testimony to be evaluated by the trier of fact. People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915.

In the instant case, eyewitness Clough observed the defendant face-to-face at close range for a period of at least 10 seconds. According to his testimony, the area was illuminated from several sources, which, when combined, provided adequate lighting for the witness to make a detailed description of the defendant. With the exception of his age, the defendant’s physical characteristics matched the description given by Clough, and even this discrepancy was understandable given the fact that the defendant’s face was covered by a beard and was not illuminated by direct lighting. Further, while Clough’s description of the robber’s clothing varied from what the defendant was wearing when he was arrested, the defendant could very well have changed his clothing after the robbery before going to the Palms Lounge later that evening.

Despite Clough’s initial hesitancy in identifying the defendant’s photograph from those shown him, it was Clough who contacted the police a few hours later to inform them that his identification was positive. This identification occurred only three days after the robbery, while the victim’s memory of the robber was still fresh. At trial Clough explained the reason for his initial reluctance to identify the defendant and positively identified the defendant as the person who had robbed him. The jury was justified in accepting Clough’s explanation and his identification testimony and, conversely, was not obligated to believe the alibi testimony offered by the defendant (see People v. Myatt (1978), 66 Ill. App. 3d 642, 384 N.E.2d 85). The jury’s determination of the weight and credibility of the witnesses’ testimony was not so improbable as to raise a reasonable doubt of the defendant’s guilt (see People v. Catlett (1971), 48 Ill. 2d 56, 268 N.E.2d 378; People v. Harrison (1978), 57 Ill. App. 3d 9, 372 N.E.2d 915), and we will not overturn its verdict on this basis.

The defendant argues further that even if the identification testimony was sufficient, the evidence failed to show that he was actually armed so as to establish the use of a dangerous weapon necessary for a conviction of armed robbery. (See Ill. Rev. Stat. 1981, ch. 38, par. 18 — 2(a).) The defendant asserts that under People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455, an objective rather than a subjective test must be applied in determining whether an item used in a robbery constituted a deadly weapon for purposes of the statute. The defendant contends that since the robbery victim here never actually saw a weapon or anything from which he could infer the presence of a weapon, the victim’s subjective opinion that the item in the defendant’s hands was a weapon was'insufficient.

While the defendant correctly states the rule of Skelton that a victim’s subjective belief as to the dangerousness of a weapon used in a robbery is insufficient, there is no question here as to the dangerous nature of the sawed-off shotgun recovered from the defendant’s car. (Cf. People v. Skelton (1980), 83 Ill. 2d 58, 414 N.E.2d 455 (toy plastic gun not a dangerous weapon as a matter of law).) Rather, since the weapon allegedly used in the robbery was not actually seen by the victim, the issue is whether the defendant was in possession of the gun during commission of the robbery. See People v. Fiala (1980), 85 Ill. App. 3d 397, 406 N.E.2d 931.

The presence of a weapon during commission of a robbery, necessary to a conviction for armed robbery, may be established by circumstantial evidence (People v. Dunivant (1981), 96 Ill. App. 3d 62, 420 N.E.2d 1110), and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. (People v. Elam (1972), 50 Ill. 2d 214, 278 N.E.2d 76; People v. Grant (1982), 104 Ill. App. 3d 551, 432 N.E.2d 1200; People v. DuPres (1979), 69 Ill. App. 3d 260, 387 N.E.2d 391.) Some physical manifestation of a weapon is required, however, or some other evidence from which the presence of a weapon may be inferred. People v. Dunivant (1981), 96 Ill. App. 3d 62, 420 N.E.2d 1110.

In the instant case, the victim stated that the defendant confronted him with “something orange” that he was holding in both hands. The defendant pointed the orange object at the victim’s face while ordering him to stay put and remain calm. The victim’s belief that the defendant was threatening him with “some type of weapon” was substantiated by the later recovery from the defendant’s car of a sawed-off shotgun wrapped in an orange towel. Thus, although no weapon was actually viewed by the victim during the confrontation with the robber, it may be concluded from the manner in which the orange object was held during the robbery and from the later discovery of an object matching that description in the defendant’s car, that the “something orange” used in the robbery was in fact the sawed-off shotgun wrapped in an orange towel.

The facts of the instant case make it distinguishable from People v. Fiala and People v. Dunivant, cited by the defendant, in which there was insufficient evidence as to the presence of a weapon during the robberies in question. In People v. Dunivant, the victim saw nothing in the robber’s hand nor anything indicating a concealed weapon, and the defendant, who was later found with a gun, was not observed at the scene of the robbery. By contrast, the defendant here was identified as the perpetrator of the robbery, and the evidence showed his possession of an object that seemed to be a weapon and that was, indeed, later found to be so. In People v. Fiala, there was no evidence of a concealed weapon, and a witness testified that no gun was seen in the defendant’s hands, which were both visible- at one point in the robbery. Further, there was evidence that the defendant could have obtained the gun in his possession upon arrest after the robbery had been completed. The instant case, however, is more like People v. Elam, where the victim’s belief that the defendant possessed a weapon at the time of the robbery was borne out by the later discovery of a knife in his pocket. In affirming the defendant’s conviction for armed robbery, the court stated that “the actual existence of a dangerous weapon in the possession of the accused at the time of the robbery was sufficient to fulfill the [statutory requirement of a dangerous weapon] even though the weapon itself was neither seen nor accurately described by the victim.” (People v. Elam (1972), 50 Ill. 2d 214, 220, 278 N.E.2d 76, 77.) Similarly, the presence of a weapon here was established by circumstantial evidence of something pointed at the victim like a weapon that matched the description of the dangerous weapon found in the defendant’s car. This, along with evidence that the defendant’s car was observed near the scene of the robbery shortly before its occurrence and that the shotgun and towel were found in the car when Detective Strom located it less than an hour and a half after the offense, was sufficient evidence from which the presence of the gun during the robbery could be inferred. For this reason, we do not address the defendant’s further contention that the evidence failed to show even the threat of “imminent use of force” necessary to a conviction of robbery.

The defendant next contends that the trial court improperly permitted the prosecution to impeach Sandra Coleman with her prior inconsistent statement and to make substantive use of her statement in presenting its case. The defendant asserts that since impeachment by prior inconsistent statement was limited to occurrence witnesses under the rule governing hostile witnesses in effect at the time of the defendant’s trial (73 Ill. 2d R. 238; cf. 87 Ill. 2d R. 238 (occurrence-witness limitation removed by amended rule)), such impeachment of Sandra Coleman, a nonoccurrence witness, was error. The defendant argues further that where the testimony of Sandra Coleman was not damaging but merely disappointing to the prosecution’s case, the use of her prior inconsistent statement was unnecessary and resulted in unsworn testimony being presented to the jury as substantive evidence of the defendant’s guilt.

While we agree with the defendant’s position that impeachment of Sandra Coleman by proof of her prior inconsistent statement was improper, we do not believe the defendant was prejudiced thereby, and we accordingly deem the error harmless. Sandra Coleman’s prior statement that the defendant had returned home briefly at 7:40 p.m. on the night of the robbery, brought out by the prosecution after she testified at trial that the defendant had not returned home that evening, added nothing to the evidence against the defendant regarding his involvement in the armed robbery. (Cf. People v. Taglia (1983), 113 Ill. App. 3d 260, 446 N.E.2d 1276 (witness’ prior statement that defendant was present at scene of crime with gun in his hand after shot was heard was prejudicial where given substantive effect by jury); People v. Chitwood (1976), 36 Ill. App. 3d 1017, 344 N.E.2d 611 (convictions reversed where court’s witness impeached by highly prejudicial prior statements that defendants had admitted their guilt to her).) Where this statement, at most, contributed to the inconsistencies otherwise present in the testimony of the defendant’s alibi witnesses, we decline to find that its admission constituted reversible error.

The defendant finally challenges the constitutionality of the statute relating to habitual criminals (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1), under which he was sentenced to a mandatory term of life imprisonment. The defendant asserts initially that this provision requires that a defendant convicted of his third armed robbery receive a sentence in excess of that provided for one convicted the same number of times of the more serious offense of murder (see Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—l(a)(1)) and thus constitutes a denial of due process under article I, section 2, of the Illinois Constitution. While, as the defendant notes, the seemingly mandatory language of section 5 — 8— l(aXlXc) was construed as permissive in People v. Taylor (1983), 115 Ill. App. 3d 621, 450 N.E.2d 1256, the supreme court recently modified that decision, holding that the provision for a mandatory life sentence upon the conviction of more than one murder was constitutional (People v. Taylor (1984), 102 Ill. 2d 201). Since under section 5 — 8—l(a)(lXc) a life sentence is mandated upon the conviction of more than one murder, there is no disparity between that sentencing provision and section 33B — 1 relating to habitual criminals, and the defendant’s due process argument is without merit.

While the defendant argues further that section 33B — 1 violates article I, section 11, of the Illinois Constitution in that it precludes the exercise of judicial discretion in imposing sentence, this argument has been considered and likewise rejected in People v. Withers (1983), 115 Ill. App. 3d 1077, 450 N.E.2d 1323, cert. denied (1984), 465 U.S. 1052, 79 L. Ed. 2d 726, 104 S. Ct. 1332, and People v. McNeil (1984), 125 Ill. App. 3d 876, 466 N.E.2d 1058. As discussed above, the supreme court in People v. Taylor upheld a similar provision mandating a life sentence upon conviction of more than one murder on the grounds that it did not violate article I, section 11, of the Constitution. We adopt the reasoning of these decisions and accordingly find no merit in the defendant’s argument of the unconstitutionality of section 33B — 1 relating to habitual criminals.

For the foregoing reasons, the judgment of the circuit court of Jackson County is affirmed.

Affirmed.

HARRISONand EARNS, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DOUGLAS SONNTAG, Defendant-Appellant.
    Second District
    No. 2—83—0966
    Opinion filed October 30, 1984.

      G. Joseph Weller, Paul J. Glaser, and Jan K. Dargel, all of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Douglas Sonntag, was found guilty in a jury trial of one count of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12— 4(b)(6)), and was subsequently sentenced to an 18-month term of probation.

The issue raised by defendant in this appeal is whether, following a hearing, the trial court erred in denying his motion for discharge which alleged the failure to try him within the statutory 120-day speedy-trial term pursuant to section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)).

As defendant’s sole contention on appeal relates to whether the 120-day speedy-trial term was complied with, we set forth only those facts necessary to resolve that issue and need not recount the trial testimony. On August 26, 1982, defendant was incarcerated following an altercation occurring at his father’s residence and was charged with aggravated battery and other misdemeanor offenses arising out of this incident. The defendant failed to post bond. Following a preliminary hearing and a bond reduction hearing, defendant’s counsel filed on October 18, 1982, a petition to determine the defendant’s fitness. The petition was dismissed for failure to raise a bona fide doubt as to the defendant’s fitness to stand trial. The trial judge explained that the petition was based on conclusions and that specific grounds must be raised in support of a petition to determine fitness. However, the court granted Mr. Conniff, defendant’s counsel, leave to refile an amended petition at a future date. Additionally, the court was informed that defense counsel had failed to comply with discovery since he had “anticipated we were going to proceed by way of a fitness hearing.” A trial date was then set for December 13, 1982.

On the following day, October 19, 1982, defendant filed a petition for a physical examination because of pain in his shoulder from a prior injury, as well as a petition to appoint a qualified expert to examine him on the question of fitness pursuant to section 104 — 11(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(b)). The court granted the latter petition and ordered that the defendant submit to an examination by Dr. Lyle Rossiter to determine if a bona fide doubt of fitness may be raised. The judge noted that “I am not making that determination now, but only to determine if there is a bona fide doubt.” Defendant’s motion for a physical examination was continued, pending the results of a previous examination, to October 25, 1982. On October 19, 1982, defendant had been incarcerated for 55 days.

On October 25, 1982, after reviewing a medical report, the court granted the defendant’s motion for a physical examination. At this time, the defendant, on his own oral motion, requested a change in public defenders. Mr. Conniff, defendant’s then-assigned public defender, explained that he was making arrangements internally for the office to have another public defender assigned to the case. The court reminded counsel that the case was set for trial December 13, 1982.

On December 13, 1982, the day the case was set for trial, the State answered ready. At this time, Mr. Conniff filed another petition to raise a bona fide doubt of the defendant’s fitness to stand trial based, in part, on the defendant’s refusal to submit to an examination by Dr. Rossiter. The defendant renewed his request for a change of public defenders.

The trial court granted Mr. Conniff’s petition on behalf of defendant to raise a bona fide doubt and ordered again an evaluation by Dr. Rossiter, continuing the matter to January 10, 1983, pending a report on the defendant’s fitness status. The court also stated that another public defender would be appointed. On December 13, 1982, defendant had been incarcerated for 109 days.

On January 10, 1983, it was again reported back to the court that the defendant refused to speak to Dr. Rossiter. A new public defender, Mr. Thomas Laz, appeared as substitute counsel and moved to withdraw the petition for a fitness hearing previously filed by public defender Conniff. The trial judge allowed the petition to be withdrawn, but ruled that since a bona fide doubt of the defendant’s fitness had been raised in his mind it was the duty of the court, on behalf of the defendant, to conduct a fitness hearing. The court set the cause for a jury fitness hearing on January 19,1983.

On January 19, 1983, the parties answered ready for the defendant’s fitness hearing. However, due to the court’s involvement in another matter, the fitness hearing was continued to the following day, January 20,1983.

On January 20, 1983, a fitness hearing was held, and a jury determined that the defendant was fit to stand trial. After this finding, the court ordered a bond hearing for the following day.

On January 21, 1983, a bond hearing was held on motion of the court. As a result, the defendant was released on a recognizance bond with the conditions that he not have any communication with his father or go to his father’s residence. The cause was then set for trial on February 2, 1983. The defendant also made a formal demand for trial on January 21, 1983.

After several trial dates were continued either on a motion of the defendant, who was on bond, or the State, or by the court on its own, on June 20, 1983, the State filed a motion to revoke the defendant’s bond, alleging that he had violated one of the conditions since he had no place to live other than at his father’s residence. The State’s motion was granted, and the defendant was again taken into custody on the original offense. The trial date of July 25, 1983, set while the defendant was on bond, was undisturbed.

On July 20, 1983, the defendant filed a motion to dismiss alleging that he was not tried within 120 days of being taken into custody pursuant to section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)). The court heard argument on the motion on July 25,1983.

On July 26, 1983, the trial court denied defendant’s motion to dismiss, finding that the speedy-trial term was tolled from the filing of defendant’s petition to determine fitness on October 19, 1982, until the determination on January 19, 1983, ascribing the delay to the defendant because of his refusal to consult with a psychiatrist pursuant to court order. Following this ruling, the cause proceeded to a jury trial, and the defendant was found guilty of one count of aggravated battery.

It is defendant’s contention that he was held in custody without trial for a total of 144 days. He computes this period of time in custody as beginning on August 26, 1982, the date he was arrested, until December 13, 1982, the date he concedes the speedy-trial term was tolled by his filing of a petition to raise a bona fide doubt of his fitness and the court’s granting of a hearing on it. This time period is 109 days. Defendant then maintains that the original speedy-trial term again started to run on June 20, the date he was reincarcerated on the original offense, following a violation of bond, and continued for another 35 days until his trial began on July 25, 1983. Computing the original period of incarceration of 109 days, before his motion for a fitness hearing and his release on bond, together with the second period of incarceration of 35 days, after his bond was revoked and until trial, defendant contends he spent 144 days in jail without a trial, in violation of the statutory 120-day trial provision.

Initially, we must address the State’s contention, made without citation of authority, that section 103 — 5(a), which pertains to trial for persons in custody, contemplates a continuous period of 120 days’ incarceration from the date defendant was originally taken into custody. It maintains that defendant’s release on bond does not operate to toll the statute and, in effect, ends the running of the statutory term provided in 103 — 5(a). Thus, the State argues that defendant’s addition of both periods of incarceration, before being released on bond and after his bond was terminated, is not correct.

The pertinent provisions of section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5), known as the Speedy Trial Act, which relate to trial of a defendant in custody or on bail or recognizance, are as follows:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.

(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104 — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114 — 4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.

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(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.

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(f) Delay occasioned by the defendant shall temporarily suspend for the time of the delay the period within which a person shall be tried as prescribed by subparagraphs (a), (b), or (e) of this Section and on the day of expiration of the delay the said period shall continue at the point at which it was suspended.”

The issue appears to be unique in that we have found no Illinois case which has specifically addressed the precise question here, of whether a defendant may combine two separate periods of incarceration, interspersed by defendant’s release on bond and termination of bond by violation of its conditions, arising out of the same initial charge in determining whether he has been held in violation of the 120-day statutory period. 'Section 103 — 5(a) by its terms does not expressly cover this issue.

With respect to an offense allegedly committed prior to March 1, 1977, a delay caused by the defendant within the 120-day statutory period tolled the running of the statute, and a new statutory period commenced to run from the date to which the case had been delayed. (People v. Gooding (1975), 61 Ill. 2d 298, 301, 335 N.E.2d 769; People v. Lee (1969), 44 Ill. 2d 161, 166, 254 N.E.2d 469.) For offenses allegedly committed on or after March 1, 1977, Public Act 79 — 1237 now provides that a delay occasioned by the defendant temporarily suspends for the time of the delay the period within which the defendant shall be tried. (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(f); People v. Donalson (1976), 64 Ill. 2d 536, 540, 356 N.E.2d 776.) It seems clear that the legislature by enactment of Public Act 79 — 1237 intended to-attribute to a defendant a much shorter period of time caused by his delay for which the statutory term would be tolled than would have been formerly applicable when the full statutory period would commence anew.

As the speedy-trial provisions of section 103 — 5 implement the right to a speedy trial guaranteed by the Illinois Constitution, the statute is to be liberally construed. (People v. Reimolds (1982), 92 v. 2d 101, 106, 440 N.E.2d 872; People v. Pearson (1981), 88 Ill. 2d 210, 216, 430 N.E.2d 990.) Our supreme court has stated that it will avoid technical constructions which frustrate the purpose of our State’s speedy-trial provisions. People v. Christensen (1984), 102 Ill. 2d 321, 329, 465 N.E.2d 93.

The State has not referred us to any policy considerations or legislative debate which would support its position that a narrow interpretation of the 120-day statutory provision should be applied so that a continuous period of incarceration is required under section 103 — 5(a). Here, the defendant was in custody after his bond was revoked for the same offense for which he was originally incarcerated. The 120-day period prescribed in section 103 — 5(a) commences to run on the date defendant is in custody for the offense for which discharge is sought. (People v. Davis (1983), 97 Ill. 2d 1, 11, 452 N.E.2d 525.) Although defendant was released on a recognizance bond for a period of time until that bond was terminated by the court for failure to comply with its conditions, we believe that the delay in trial occasioned by defendant by his release from custody should only temporarily suspend for the time of the delay the time within which he should be tried. This construction of the speedy-trial provision would be in conformance with the policy of liberal interpretation of the statute and its legislative history as reflected in Public Act 79 — 1237. Thus, under the particular circumstances present here, we conclude that the defendant may combine two separate periods of incarceration in determining whether he has been in custody in violation of the 120-day statutory period prescribed in section 103 — 5(a).

Defendant principally contends on appeal that the trial court improperly tolled the speedy-trial term on October 19, 1982, the date the defendant filed his first petition for a qualified expert to be appointed to determine if a bona fide doubt of his fitness to stand trial could be raised. Rather, defendant argues that the speedy-trial term should only have been tolled when a bona fide doubt of his fitness to stand trial had arisen. Defendant concedes that a bona fide doubt did arise, thus the speedy-trial term tolled, on December 13, 1982. In support of his argument defendant notes that on October 19, 1982, when the court below initially ordered Dr. Rossiter to examine him, it expressly stated that the examination was ordered “only to determine if there is a bona fide doubt.”

The State maintains, consistent with the findings of the court below, that the 120-day speedy-trial term was tolled on October 19, 1982. The State asserts that there is nothing to suggest that when a qualified expert is appointed, pursuant to the revised fitness provision (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11(b)), the statutory speedy-trial period should not be tolled.

Section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5(a)), in pertinent part, provides:

“(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 10^ — 2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 103— 5(a).)

However, section 104 — 2 of the Code of Criminal Procedure of 1963 was repealed by Public Act 77 — 2097, effective January 1, 1973. It was replaced by section 5 — 2—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1); in 1979 section 5 — 2—1 was repealed and replaced by the current fitness provisions found in section 104 — 10 et seq. of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 10 et seq.). Unfortunately, as a result of legislative oversight the reference to “Section 104 — 2” and an examination for “competency” in section 103 — 5(a) was. never changed to correspond to the present statutory provision nor was this section amended to reflect the new terminology of “fitness” instead of “competency.” (See People v. Gibson (1974), 21 Ill. App. 3d 692, 694-95 n.2, 315 N.E.2d 557.) It has been held that the present standard of “fitness” must be equated with “incompetence” for the purposes of tolling the speedy-trial term. People v. Williams (1977), 48 Ill. App. 3d 842, 849, 362 N.E.2d 1306; see also People v. Bickham (1976), 39 Ill. App. 3d 358, 360-63, 350 N.E.2d 351.

A further analysis is required, however, because the present statutory provisions for examination for fitness as enacted into law in 1979 by Public Act 81 — 1217 provide for examinations when a bona fide doubt of fitness is raised or when the defendant requests a qualified expert be appointed to examine a defendant to determine if a bona fide doubt of fitness to stand trial may be raised. The provisions relating to raising the issue of fitness to stand trial are now contained in section 104 — 11 (Ill. Rev. Stat. 1981, ch. 38, par. 104 — 11) and, in pertinent part, provide:

“(a) The issue of the defendant’s fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court at any appropriate time before a plea is entered or before, during, or after trial. When a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further.

(b) Upon request of the defendant that a qualified expert be appointed to examine him or her to determine prior to trial if a bona fide doubt as to his or her fitness to stand trial may be raised, the court in its discretion, may order an appropriate examination. However, no order entered pursuant to this subsection shall prevent further proceedings in the case. An expert so appointed shall examine the defendant and make a report as provided in Section 104 — 15. Upon filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay such expert a reasonable fee stated in the order.” Ill. Rev. Stat. 1981, ch. 38, pars. 104— 11(a), (b).

The provision in subsection (b) of section 104 — 11 for appointment of a qualified expert to examine the defendant to determine prior to trial if a bona fide doubt as to fitness to stand trial may be raised is a new procedure authorized by Public Act 81 — 1217. The prior statutory provisions were similar to subsection (a) of section 104 — 11 in that an examination was provided only “when a bona fide doubt of the defendant’s fitness is raised.” Thus, subsection (b) now provides a procedure whereby a defendant may request appointment of a qualified expert to examine him prior to trial to determine if a bona fide doubt as to his fitness to stand trial may be raised, and the court in its discretion may order an appropriate examination.

The enactment into law of subsection (b) by the Illinois legislature resulted from its acceptance of that provision, among others, after it was included in an amendatory veto of Senate Bill 133 by Governor Thompson. Also included in the amendatory veto and accepted by the Illinois General Assembly was the further language in subsection (b) of section 104 — 11 which provides that “no order entered pursuant to this subsection shall prevent further proceedings in the case.”

It is defendant’s contention that only where a bona fide doubt of fitness is actually raised does an order for a fitness examination toll the speedy-trial term. In this case, defendant asserts, a bona fide doubt of fitness did not exist until December 13, 1982, not October 19, 1982, when he filed his original petition for appointment of a qualified expert to examine him under subsection (b) of section 104 — 11 as specified in that petition. As further support for this argument, defendant cites language of subsection (b) that an order entered pursuant to that subsection shall not prevent further proceedings in the case. It is noted that once a bona fide doubt of fitness is raised under subsection (a), the statute expressly provides that the issue of fitness shall be determined before proceeding further in the case.

In his amendatory veto message to the General Assembly, relevant to subsection (b), Governor Thompson states as follows:

“The bill must be expanded to permit the court to appoint a qualified expert to examine the defendant even though no bona fide doubt as to the defendant’s fitness has actually been raised. It is common practice for judges to appoint an expert simply to determine whether there is any bona fide doubt. Because this procedure should be more flexible than that used when a bona fide doubt has been raised, the court, in its discretion, should be able to continue the proceedings for matters such as pre-trial motions during the period that the examination is being conducted.”

Both houses of the Illinois General Assembly adopted the specific recommendation to include subsection (b) as suggested by Governor Thompson without any debate on this subsection.

First, we do not believe that the inclusion of the language in subsection (b) that “no order entered pursuant to this subsection shall prevent further proceedings in the case” was intended to be correlated to the speedy-trial provisions of section 103 — 5. Rather, as stated in Governor Thompson’s amendatory veto message, the court should “in its discretion” be able to continue with the proceedings “for matters such as pretrial motions during the period that an examination is being conducted.” There is logical reason why this language is included in subsection (b), but not in subsection (a), wherein a bona fide doubt of fitness has been raised and which provides that fitness must be determined “before proceeding further.” It is well-established that a trial continued after a bona fide doubt of fitness is raised, but not resolved, is in violation of due process of law. (People v. Johnson (1984), 121 Ill. App. 3d 859, 860, 460 N.E.2d 336.) Once a bona fide doubt is raised, the trial, which includes pretrial proceedings wherein the defendant must confer with his counsel concerning his defense and may testify, cannot continue because of defendant’s due process right not to be tried or convicted while unfit to stand trial. (See People v. Murphy (1978), 72 Ill. 2d 421, 430, 381 N.E.2d 677.) On the other hand, where an examination is ordered under subsection (b) to determine if a bona fide doubt of fitness may be raised, due process is not denied if the court, in its discretion, wishes to conduct other proceedings in the case while the examination is pending.

Thus, we do not interpret the purpose of the inclusion of that language in subsection (b) as relating to the speedy-trial provisions of section 103 — 5, nor does any other language in subsection (b) make any reference to the speedy-trial statute.

Accordingly, we must look to the Speedy Trial Act itself to determine whether the delay occasioned “by an examination for competency ordered pursuant to section 104 — 2 of the Act,” as set forth in subsection (a) of section 103 — 5, includes a defendant’s request, as here, for an appointment of a qualified expert to examine him to determine if a bona fide doubt of his fitness may be raised.

As we previously stated, section 104 — 2 no longer exists, and the provisions of 104 — 10 et seq. replace it. While the legislature neglected to amend section 103 — 5 to correspond to the new provisions, we believe that an examination for fitness ordered under the new provisions of sections 104 — 11(a), (b) operates to toll the speedy-trial term. Whether the examination is to determine if a bona fide doubt of fitness may be raised, or to determine actual fitness after a bona fide doubt of fitness has been shown to exist, the trial is interrupted for the purpose of determining fitness. An examination by qualified experts will generally cause some delay, which is why the statutory term is tolled. This is illustrated under the facts here, where following the filing of the petition on October 19, the defendant refused to be examined and became uncooperative with the counsel over whether he should be examined, which caused a delay and continuance of his scheduled trial date. Accordingly, we conclude that a delay caused by an examination for fitness under section 104 — 11(a) or (b) will toll the statutory speedy-trial term. We recommend legislative action on section 103 — 5 so that its present reference to examination for “competency” and to “section 104 — 2,” now repealed, be amended to correspond to the present provisions in the Code of Criminal Procedure of 1963 in section 104 — 10 et seq. on fitness for trial.

Even assuming we were not to construe an examination to determine if a bona fide doubt as to fitness may be raised under section 104 — 11(b) is an examination for competency as referred to in section 103 — 5(a), causing a delay in the trial, we would still conclude under the circumstances here that a delay has been occasioned by the defendant. We note that the causes for delay of trial enumerated in section 103 — 5(a) are each separate reasons for delay, one of those causes being a delay occasioned by the defendant and another being a delay caused by an examination for competency. Cf. People v. Williams (1982), 105 Ill. App. 3d 372, 375-76, 434 N.E.2d 412.

A defendant is considered to have occasioned a delay when he requests a continuance, agrees to a continuance, or when his actions otherwise cause or contribute to the delay. (People v. Reimolds (1982), 92 Ill. 2d 101, 106, 440 N.E.2d 872; People v. Bivins (1981), 97 Ill. App. 3d 386, 392, 422 N.E.2d 1044.) In resolving whether a delay is attributable to the defendant, much deference must be given to the trial court’s judgment, and its decision should be sustained absent a clear showing of abuse of discretion. People v. Reimolds (1982), 92 Ill. 2d 101, 107, 440 N.E.2d 872.

We agree with the trial court that defendant’s filing of the petition to appoint a qualified expert to examine him for fitness on October 19, 1982, and his subsequent actions in repeatedly refusing to submit to such an examination caused a delay in the proceedings occasioned by defendant. It is also apparent that from October 19, 1982, defendant began expressing reservations about his attorney which led to his request for another public defender on October 25. Thus, on the date set for trial, December 13, 1982, defendant was not ready for trial, was again uncooperative by still refusing to submit to an examination for fitness, and was continuing to object to his present counsel. The petition filed on October 19 was the beginning of this delay, the delay is attributable to the actions of defendant, and defendant’s actions caused a delay in trial. We also observe that at the time defendant’s counsel filed the defective petition on October 18, 1982, which was amended and filed on October 19, the assistant State’s Attorney stated he believed the raising of the fitness issue would be a delay occasioned by defendant and defendant did not respond or dispute this assertion. As the 120-day statutory term became tolled on October 19, 1982, until defendant’s release on bond, he had been in custody since his arrest for 55 days. Following the revocation of his bond on June 20, 1983, defendant was in custody another 35 days until his trial date of July 25, 1983. As computation of these two periods of time in custody adds up to 90 days, the State has not violated defendant’s statutory right to a speedy trial.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NASH and HOPF, JJ., concur.