author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN M. KLEIN, Defendant-Appellant.
    Fourth District
    No. 4—82—0466
    Opinion filed June 16, 1983.

      Daniel D. Yuhas and Jerome McGuire, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles H. Burch, State’s Attorney, of Hardin (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Pillage on the Mississippi.

A modern day brigand boarded a moored vessel, plundered the craft, and made off with the spoils.

Burglary and theft — jury—guilty—six years.

We affirm.

On Sunday, August 9, 1981, the Williams family — who reside in Missouri — went on a family outing. They sailed their boat, a 25-footer with an enclosed cabin that sleeps five persons, across the Mississippi River to Royal Landing in Calhoun County, Illinois. Before disembarking, Mr. Williams placed his wallet in his wife’s purse and put the purse in the V-berth of the boat. The family spent four to five hours at Royal Landing swimming and picnicking. They were about 50 yards from their boat, but could not always see it, as their vision was partially blocked by a clump of bushes. The members of the family occasionally returned to the boat to retrieve food or drink or to use the bathroom facilities on board. They noticed nothing untoward at these times.

Sometime between 5 and 6 p.m., Mr. and Mrs. Williams and their daughter boarded their boat and sailed for home. When they reached port, they discovered that the purse and wallet which had been in the V-berth were missing. Mr. Williams and his family again set sail for Royal Landing and, upon their arrival at approximately 8 p.m., they found the beach deserted. A search of the area turned up Mrs. Williams’ purse (which had been pushed down in the mud some 30 to 40 feet from where the boat had been moored earlier in the day), but was otherwise unsuccessful.

Meanwhile, unbeknownst to the Williams family, conservation police officers were at another area of Royal Landing investigating a report of a vehicle parked in a restricted area. Officers Will, Stumpf, and Ulery had arrived at the landing at 7:30 p.m. The officers observed a white Chevy pickup stuck in the sand in a restricted area. Five persons, including defendant John Klein, were with the disabled vehicle. All five appeared to be intoxicated. When Will and Stumpf attempted to ascertain ownership of the truck, the five were initially uncooperative, but Dan Harwood eventually claimed that the truck was his. Harwood gave the officers permission to search the cab of the truck for the keys to its ignition. In the course of this search, seven credit cards, in the names of Glenn and Jacqueline Williams, were discovered under a loose piece of carpeting on the floor of the truck. Klein initially explained the presence of the cards by stating that they belonged to a friend of his.

Following a license check of the white Chevy, which revealed that its plates were registered to a 1974 El Camino owned by Glenn Jolly of Florissant, Missouri, Klein, his companions, and the truck were taken to the Calhoun County Jail. At this point, the police obtained a phone number for Glenn Williams and placed a call. The phone rang at the Williams home just as the family was returning from their second trip to Royal Landing.

After ascertaining that the credit cards had been stolen, Officer Will administered Miranda warnings to Klein and questioned him about the cards. Klein indicated that he had found a wallet on the beach, removed the cards, put them under the carpet on the floorboard of his truck, and threw the wallet into the water. At this point, the police also learned that the truck they had impounded was registered to defendant, not Dan Harwood. Klein also informed the police that no one saw him find the wallet or put the cards in the truck.

The following morning, Mr. Williams returned to Calhoun County and identified the credit cards as belonging to his wife and himself. Williams also returned to Royal Landing where he found his wallet and the rest of his cards in some brush 200 yards from where his boat had been moored the previous day. The brush was in a direct line between the boat and where Klein’s truck had been stuck.

Klein was charged with burglary and theft and posted bond. Following his conviction, he was sentenced to six years’ imprisonment for burglary and 364 days for theft. His bond was also ordered forfeited when it was shown that he had been arrested for bank robbery in Missouri. Klein argues before this court that he was not proved guilty beyond a reasonable doubt of burglary and that the credit cards seized from his truck should have been suppressed. He also alleges error in ordering his bond forfeited.

I

The question of whether the State sustained its burden of proof on the burglary charge turns on whether the jury should have been allowed to infer guilt from Klein’s exclusive possession of recently stolen property. This subject was recently addressed by our supreme court. The inference is only permissible if: (1) there is a rational connection between possession and participation; (2) guilt of burglary more likely than not flows from possession; and (3) there is evidence which corroborates the inference. (People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) The same evidence will apparently satisfy all three prongs of the test. See People v. Johnson (1982), 103 Ill. App. 3d 564, 431 N.E.2d 1381.

There is no doubt that those three prongs were satisfied in this case. An explanation of possession given by a defendant which is not credible or indicates dishonesty will justify application of the presumption. Housby; People v. Felters (1982), 105 Ill. App. 3d 1066, 433 N.E.2d 368; Johnson; People v. Bailey (1982), 103 Ill. App. 3d 503, 431 N.E.2d 723.

Here, Klein gave conflicting stories explaining his possession of the credit cards and both stories were inconsistent with the physical evidence. Klein’s explanation that he found the wallet on the beach and did not attempt to locate its owner — along with the fact that the credit cards were secreted under carpeting on the floor of his truck— indicates dishonest possession. Compare People v. Ross (1981), 103 Ill. App. 3d 883, 431 N.E.2d 1288, which reversed the defendant’s burglary conviction in view of his explanation that he found the stolen stereo in an alley (which contained numerous articles of apparently abandoned property) and the fact that he did not attempt to conceal the stereo, but had it in plain view in the open trunk of his car.

Additionally, the burglary in this case occurred sometime between 12 noon and 5 p.m. on August 9, 1981. Klein was found to possess credit cards stolen in the burglary at 7:30 p.m. on the same day. At the time, Klein was only 250 to 300 yards from where the burglary had occurred. Other items taken in the burglary were found in a direct line between where the burgled boat had been moored and where Klein was arrested.

In People v. Phoenix (1981), 96 Ill. App. 3d 557, 421 N.E.2d 1022, this court ruled that where the defendant testified that he purchased the stolen goods and there was no other evidence corroborating the defendant’s guilt of burglary, there was not sufficient evidence to prove beyond a reasonable doubt that the defendant was guilty. The situation in the case at bench, however, is distinguishable from the situation in Phoenix. There, the defendant offered one explanation for his possession of the stolen goods — he purchased it. Here, as we noted earlier, Klein gave conflicting explanations for his possession of the credit cards. First, he said they belonged to a friend; later he said that he had found them on the beach. Inconsistent explanations of the possession of stolen property give rise to a reasonable inference that the defendant’s story is false and provide sufficient corroboration of the defendant’s participation in a burglary. (Bailey; Johnson.) Therefore, it was not error to allow the jury to make the inference, and Klein was proved guilty of burglary beyond a reasonable doubt.

II

Just prior to trial, Klein moved to suppress the seven credit cards found in his truck on the grounds that they were the fruit of a nonconsensual search conducted without a warrant and without probable cause. The trial judge denied the motion, and defendant made no further objection to the admission of the cards — either at trial or in a post-trial motion. We therefore consider any error to have been waived. People v. Neville (1976), 42 Ill. App. 3d 9, 355 N.E.2d 179; accord, People v. Stark (1978), 59 Ill. App. 3d 676, 375 N.E.2d 826.

Even if the issue were properly before us, we would decline to reverse. A trial court’s decision on a motion to suppress is presumptively correct and should not be disturbed unless it is manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 304 N.E.2d 280.) The court below found that the search here was incident to a lawful arrest. We conclude that such finding was not manifestly erroneous.

A warrantless search of an accused — and areas within his control — is proper where (1) the police have probable cause to arrest, and (2) a custodial arrest is actually made (whether or not one is mandated). (See Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488.) Whether or not a custodial arrest is made depends not on the label attached to police action, but on the degree of intrusion made upon interests protected by the fourth amendment. See Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

There can be no doubt that there was probable cause to arrest here. Defendant’s vehicle was in a restricted area in violation of the laws of this State. The facts also tend to support a finding that a custodial arrest was made prior to the search which yielded the credit cards sought here to be suppressed. Some effort was made to keep the defendant and his four companions from “wandering off” while they were at Royal Landing. Officer Will indicated that he intended to take defendant’s vehicle into custody at the time he began to look for its keys. And, it is of no minimal consequence that defendant was actually taken into custody before it was known that the credit cards he possessed were stolen. The actions of the officers in this case were reasonable.

Furthermore, the officers had every reason to believe that they had the owner’s consent to search the cab of the truck. When Harwood claimed ownership of the truck and gave the officers permission to search the cab, Klein was there, heard Harwood’s consent to the search and did not object. Klein cannot now argue that the search was illegal because he did not give his consent.

Ill

We do agree, however, that it was error to order forfeiture of Klein’s bond. Forfeiture is appropriate only where a defendant fails to appear, and such was not the case here. The State concedes error and, on the authority of In re E.H. (1979), 78 Ill. App. 3d 854, 397 N.E.2d 571, we reverse.

Conviction and sentence affirmed, order of bond forfeiture reversed.

GREEN and MILLER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    CLYDE ROBERSON et al., Plaintiffs-Appellants, v. ROBERT F. TAYLOR, M.D., et al., Defendants-Appellees.
    Second District
    No. 82—487
    Opinion filed June 21, 1983.

      Gregory E. Barrett, of Schlueter, Eklund, Olson & Barrett, of Rockford, for appellants.
    Frederic T. Brandt, of Brassfield, Cowan & Howard, of Rockford, for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Clyde Roberson and Louise Roberson, his wife, filed suit against the defendants Robert F. Taylor, M.D., and Rockford Clinic Ltd., a corporation. Count I, for breach of contract, charged that on December 2, 1971, the doctor performed an elective bilateral vasectomy upon Clyde Roberson at the Rockford Clinic after allegedly being assured that as the result of the operation Roberson would become sterile and be unable to conceive children, and that his wife became pregnant in June of 1980 and gave birth to twins on December 28, 1980. Count II sounded in tort.

The complaint was dismissed on the motion of the defendants, who claimed the defense of the four-year statute of limitations for actions for damages for injury against physicians and hospitals. (Ill. Rev. Stat. 1981, ch. 83, par. 22.1.) Plaintiffs appeal. They contend that the statute does not apply or, alternatively, that it is unconstitutional if applied.

Section 21.1 of the Limitations Act provides as pertinent:

“No action for damages for injury or death against any physicían, dentist or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death ***.” Ill. Rev. Stat. 1981, ch. 83, par. 22.1.

The complaint was concededly filed more than four years following the sterilization process. Plaintiffs assert, however, that the statute is not applicable since the subject action is not an “action for damages for injury or death” as provided in the quoted section. They contend that the complaint does not seek damages for personal injuries, but rather for economic losses resulting from defendants’ failure to properly perform their contractual and medical obligations. Accordingly, they urge that the applicable statute of limitations would be section 15 of the Limitations Act relating to “actions on unwritten contracts, express or implied,” and “all civil actions not otherwise provided for,” which sets forth a five-year limitation period after the cause of action has accrued. (Ill. Rev. Stat. 1981, ch. 83, par. 16, re-codified as Ill. Rev. Stat. 1981, ch. 110, par. 13 — 205.) Section 21.1, which refers to actions either in tort or contract, has been held to unambiguously apply to all medical and malpractice claims against physicians and hospitals. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 235.) Since a claim for wrongful birth is treated as an action for medical malpractice (Cockrum v. Baumgartner (1983), 95 Ill. 2d 193, 194), the statute applies here. Further, although plaintiffs argue that they are seeking damages for economic loss rather than for personal injuries, it has been held that the statute would still apply. Burgdorff v. Siqueira (1982), 109 Ill. App. 3d 493, 495.

Plaintiffs’ reliance on Doerr v. Villate (1966), 74 Ill. App. 2d 332, 337, is misplaced. The decision in Doerr was rendered long before the legislature enacted section 21.1 of the Limitations Act which became effective, as amended, on September 19,1976.

Plaintiffs further argue that the trial court erred in deciding that the provisions of the section in question are constitutional as applied in this case. They argue that the effect would be to bar their action even before the cause of action had come into existence since no cause of action existed in their favor in this case until the pregnancy and/or birth, which were well after four years from the date of the vasectomy. They argue that to deny a remedy before a wrong has even occurred violates due process as well as article 1, section 12 of the Constitution of Illinois of 1970 providing “a certain remedy *** for all injuries and wrongs ***.”

Defendants contend that this argument was not advanced by plaintiffs in the trial court and that- they are therefore precluded from raising it on appeal. (See Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 11; Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) However, there is a reference in the trial court record of plaintiffs’ counsel’s statement in argument on the motion to dismiss that “there are some significant, I think Constitutional questions, due process questions.” On appeal plaintiffs state that they do not intend to relitigate the principles set forth in Anderson v. Wagner (1979), 79 Ill. 2d 295. They concede that Anderson stands for the proposition that the provisions of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 22.1) “are not unconstitutional because they have the effect of barring a cause of action prior to the time that the plaintiff could have discovered it.” In any event, an argument based upon article I, section 12 of the Illinois Constitution of 1970 is unavailing (Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876, 877), as it has also been so addressed in Anderson v. Wagner (1979), 79 Ill. 2d 295, 311.

The plaintiffs’ cause of action existed from the time of the alleged malpractice, which would constitute a breach of contract and negligence. That Louise Roberson became pregnant in 1980 would support a finding that plaintiffs could not have discovered the alleged malpractice until then, and that the cause of action might not have accrued until it had been barred by the statute of limitations. See Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 232.

In Anderson, although it was not directly ruling upon that case, the Illinois Supreme Court in answering “an unarticulated due process argument, that under section 21.1 it is possible that a person’s cause of action may be barred by the 4-year-maximum time limit before he learns of his injury,” noted that any statute of limitations will eventually operate to bar a remedy. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 311.) The court also quoted with approval from cases in other jurisdictions holding that a claimant is not denied due process of law where a reasonable period of limitation has barred the claim “without awareness by the claimant that he has been injured.” Anderson v. Wagner (1979), 79 Ill. 2d 295, 311-12. See also Scott v. County of Los Angeles (1977), 73 Cal. App. 3d 476, 483-84, 140 Cal. Rptr. 785, 788-89; Larcher v. Wanless (Cal. App. 1976), 128 Cal. Rptr. 493, 496.

In Moore, our supreme court held that section 21.1 would not be applied to automatically bar a cause of action based on alleged acts of malpractice occurring over four years before the effective date of the statute. The majority did not decide or consider whether the statute would bar suits if they were filed over four years after the effective date.

We hold that section 21.1 bars such suits and that the plaintiffs’ complaint was properly dismissed as it was not filed until over four years after the statute of limitations took effect. As Chief Justice Ryan noted in his concurrence in Moore, the purpose of the amendment at issue here was to prevent extended exposure to liability in medical malpractice cases. (Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 240, 243-44 (Ryan, C.J., specially concurring).) The amendment was designed to accomplish this objective by placing a firm outer limit on the time between the last act or omission constituting the alleged malpractice and the filing of the suit, thus cutting off the “long tail” of liability that the discovery rule had previously allowed. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 307-08; Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 229.) This outer limit would enable malpractice insurers to predict future liabilities and alleviate their need to maintain loss reserves past the four-year period. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 307; Wells Fargo Bank v. Superior Court (1977), 74 Cal. App. 3d 890, 899, 141 Cal. Rptr. 836, 840.) To enable suits based on malpractice occurring before the effective date of the statute to be filed over four years from the statute’s effective date would be inconsistent with these aims. We note that the California Supreme Court has construed a similar amendment to its statute of limitations in a like manner. Scott v. County of Los Angeles (1977), 73 Cal. App. 3d 476, 483, 140 Cal. Rptr. 785, 788.

The judgment of the circuit court of Winnebago County dismissing the complaint is therefore affirmed.

Affirmed.

UNVERZAGT and HOPE, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM LEE MILLER, Defendant-Appellant.
    Second District
    Nos. 79—578, 81—803 cons.
    Opinion filed May 17, 1983.
    Supplemental opinion filed on denial of rehearing July 11, 1983.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, William Lee Miller, was sentenced by the circuit court of Lake County following a jury trial to a term of seven years to run consecutively to an earlier-imposed sentence. Both sentences resulted from convictions for delivery of less than 30 grams of a substance containing heroin. (Ill. Rev. Stat. 1977, ch. 561/2, par. 1401(b).) This appeal consolidates defendant’s direct appeal, No. 79 — 578, and his appeal from the denial of his post-conviction petition challenging the imposition of a consecutive sentence, No. 81 — 803. The appeal from his first conviction is pending as No. 79 — 47. We affirm.

Defendant raises the following issues: (1) there was insufficient evidence to establish probable cause for the search warrant and the evidence seized pursuant thereto from his residence should have been suppressed; (2) the prosecutor erred when he informed the jury that defendant’s alleged accomplice was in the county jail; (3) the imposition of consecutive sentences was error where defendant’s acts constituted a single course of conduct with one criminal objective and where the trial court failed to state on the record that a consecutive sentence was necessary for the protection of the public; and (4) the trial court erred in sentencing defendant to a maximum term under the erroneous assumption that defendant was eligible for an enhanced penalty.

The facts underlying the instant appeal are extensive but are summarized to clarify discussion of the particular issues. On March 16, 1978, a Waukegan police officer acquired and marked a bottle of quinine monohydrochloride, commonly used to “cut” heroin, to use to trade for heroin. On March 21, 1978, the bottle was given to Illinois Department of Law Enforcement (IDLE) undercover agent James Warren. Defendant was the target of a combined Waukegan Police Department-IDLE undercover investigation of the sale of heroin.

On March 21 agent Warren arranged for an appointment with defendant at the Rib Pit in Waukegan. After a preliminary meeting with his surveillance team, Warren confirmed his appointment with defendant. When Warren arrived at the Rib Pit, defendant was present, but soon departed with an unidentified woman. They both returned five minutes later, but the woman again exited the Rib Pit prior to Warren’s conversation with defendant.

Warren spoke with defendant across the counter of the restaurant and defendant examined the quinine. Warren then informed him that the 50-gram bottle contained 96% pure quinine. Warren further indicated that he requested six packets of heroin in exchange for the quinine, but that defendant offered only four. Warren stated that he agreed to the figure with the understanding that if the quinine were satisfactory, and defendant bought the remaining two bottles, he would get a better deal.

Warren further testified that defendant instructed him to wait and departed the Rib Pit with another man. The two men drove away in defendant’s car, and returned several minutes later. Upon arrival, the other man emerged from the car and entered the Rib Pit, handed Warren four tinfoil packages, and existed without any conversation. Warren later learned that the man who handed him the packets was known as Duke Jackson.

Warren followed Jackson outside, spoke briefly with defendant about supplying additional quinine, and then departed. Subsequently, Warren met with the surveillance team, and handed over the packets. They contained a brown powdery substance. A field test indicated the presence of an opiate.

Clem Ferguson testified that he was employed by the IDLE and was assigned to surveillance on March 21, 1978. Ferguson related that Warren drove into the area, parked and entered the Rib Pit. Subsequently defendant emerged from the bar and drove away in his car. Several minutes later the car returned, driven by an unidentified woman and defendant exited. Thereafter, defendant and another man, who he later learned was named Jackson, emerged from the Rib Pit, drove away and subsequently returned. Jackson entered the bar, and exited 20 seconds later. Warren followed Jackson outside, spoke briefly to defendant, and then Jackson and defendant departed in defendant’s car.

Frank Bullock, a Waukegan police detective, testified that he participated in the surveillance team on March 21. Bullock was stationed in an alley when he was advised that defendant’s car was heading toward him. He followed the car to 609 May Street, defendant’s residence, and then back to the Rib Pit vicinity through parallel alleyways. He stated that he never lost sight of the car. As he drove by, he noticed defendant seated on the passenger side, but could not identify the driver. He later followed the car back to defendant’s home, where it made a momentary stop, and returned to the area of the Rib Pit. However, during the period of surveillance he never saw anyone enter or exit the vehicle. When it stopped, near defendant’s garage, the interior light came on, but Bullock did not see anyone exit. The car remained stationary less than one minute.

Bullock further testified that he used an informant to obtain a search warrant in this investigation. He stated that the affidavit indicated the informant was inside the home within the previous 72 hours. Bullock also testified that the informant told them that he saw the (quinine) bottle on March 26, 1978, and that the item was named in the search warrant. Upon inspection of the warrant Bullock noted, however, that it commanded a search for “violation of possession of heroin.”

Bullock was present when the warrant was executed. When he entered, other officers were present. He indicated that he did not know who, if anyone, preceded him into the pantry where the quinine bottle was found. It should be noted here that only the quinine bottle and no heroin was recovered in the search of defendant’s residence.

David Stroz testified that he was employed as a police chemist. He received certain evidence from Bullock which he examined on April 6, 1978. He opened one of the four packets which contained heroin. The contents of the package weighed .25 grams.

During closing argument, the prosecutor informed the jury that Duke Jackson resided in the county jail. The trial court admonished the jury to disregard this statement, but denied the defendant’s motion for a mistrial. Following its deliberations, the jury returned a verdict of guilty of unlawful delivery of less than 30 grams of heroin. Defendant’s subsequent motion for a new trial was denied.

At sentencing, defendant testified that he had previously been convicted of the same offense, based on the same series of transactions, and was in the process of appealing the conviction. He was sentenced to a seven-year period of incarceration to run consecutively with the sentenced imposed in the other case. His motion for reconsideration was denied.

Defendant maintains that the information contained in the affidavit of Officer Frank Bullock supporting the complaint for search warrant of defendant’s residence at 609 May Street, Waukegan, was inadequate to establish probable cause. Specifically, defendant claims that the court had insufficient information to establish a reasonable belief that evidence of a crime would be found in a search of 609 May Street.

The complaint and affidavit for search warrant prepared by Officer Bullock alleges the presence of a quantity of heroin in defendant’s residence at 609 May Street in Waukegan. It details four undercover heroin transactions between IDLE agent James Warren and defendant which occurred on February 16 and March 6, 21 and 28, 1978, at the Rib Pit Restaurant. During these purchases, TV sets and quinine were used for barter.

That portion of the complaint for search warrant relating to the instant offense provided:

“On March 21, 1978 James Warren of the Illinois Department of Law Enforcement telephoned William Lee Miller and advised him that he had a quantity of Quinine which he was willing to exchange for a quantity of heroin. Previous to this Frank M. Bullock of the Waukegan Police Department was advised by a confidential source that William Lee Miller wanted a specific type of Quinine, namely Quinine Monohydrochloride Di-hydrate, which Frank M. Bullock on behalf of the Waukegan Police Department subsequently obtained from the Aldrich Chemical Company. Frank M. Bullock knows Quinine to be a substance used to cut Heroin prior to its sale on the street.
That Frank M. Bullock received three bottles of the above-specified Quinine and marked the label of each bottle with the No. 202028. That James Warren of the Illinois Department of Law Enforcement entered the premises of the Rib Pit at 702 McAlister at about 7:20 p.m. and met with William Lee Miller and had a drug related conversation concerning the exchange of Quinine for Heroin. Subsequent to this conversation William Lee Miller exited the Rib Pit, entered his white over red Cadillac bearing 1978 Illinois Plates YE 8160 which Miller drove to the rear of his home at 609 May Street. That subsequently William Lee Miller returned to the Rib Pit and an individual named Duke Jackson, an individual known to associate with William Lee Miller, delivered to James Warren four tinfoil packets containing a brown powdery substance that was subsequently field tested and was positive for the presence of an opiate. Frank M. Bullock, that night, had a conversation with James Warren in which Warren advised him that he handed to William Lee Miller a single bottle of the above-described Quinine and that Miller agreed to give Warren four tinfoil packets of heroin which he in fact received from Duke Jackson.
* * *
Frank M. Bullock states that on the 26th day of March, 1978 a reliable informant was within the confines of the above-described premises and the informant did see a brown bottle bearing the markings of the Aldrich Chemical Company. The informant states that this bottle was in the kitchen area of the above-described premises. Your Affiant states that the informant has provided information leading to the arrest of three individuals and the conviction of one for felony charges. Your Affiant further states that the informant further provided numerous information which your Affiant has validated through investigation.
For the above stated reasons your Affiant believes that there is located in the above-described premises a quantity of heroin, in violation of Section 1401 and 1402, Chapter 56 V2, Illinois Revised Statutes, 1977.”

Additionally the complaint detailed the results of Officer Bullock’s observations at defendant’s residence on the other occasions in the following manner:

February 16, 1978 — defendant drove “to the rear of his home at 609 May Street” and then returned to the Rib Pit whereupon the heroin transaction took place.

March 6, 1978 — defendant was “observed leaving his residence at 609 May Street” and driving to the Rib Pit restaurant after Warren had telephoned defendant to arrange a transaction which then took place at the Rib Pit.

March 29, 1978 — Officer Bullock stated that “Tyrone Prater was observed leaving the residence of [defendant] at 609 May Street and entering the Rib Pit immediately before he [Prater] turned over the nine bags of heroin to James Warren.” Warren exchanged two bottles of quinine for the heroin, all in the presence of defendant and pursuant to a drug-related conversation between Warren and defendant.

On the basis of the complaint for search warrant, the warrant was issued and executed. A quinine bottle was the only evidence seized and was the subject of defendant’s pretrial motion to suppress which was denied.

I

Defendant contends that a careful examination of the complaint for search warrant discloses the absence of any information establishing probable cause to believe that heroin could be found at 609 May .Street. Nor is it apparent from the complaint that defendant did not have time to acquire the drugs from another location. (See People v. Clark (1981), 95 Ill. App. 3d 496, 420 N.E.2d 259.) Defendant also contends that Prater’s departure from 609 May Street is meaningless absent information concerning Prater’s earlier whereabouts. Further, defendant is critical of the significance of the alleged informant having seen the quinine bottle in the premises eight days prior to the complaint for search warrant.

Thus, defendant maintains that the second requirement of People v. George (1971), 49 Ill. 2d 372, was not met. The supreme court in George held that probable cause must be apparent from a review of the complaint and consists of two elements: (1) facts must be set forth which would cause a reasonable person to believe that a crime had been committed; and (2) facts must be related which would cause a reasonable person to believe the evidence was in the place to be searched. (49 Ill. 2d 372, 377.) Defendant does not contest the existence of the first element of George in this appeal.

The State simply maintains that the allegations of the complaint established probable cause citing United States v. Ventresca (1965), 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741, for the proposition that the probable cause standard is less than the reasonable doubt standard for conviction. The State also relies on Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584, which held that only a probability and not a prima facie case is required for a search warrant. The State finds the delay of eight days between the informant’s viewing of the quinine bottle and the issuance of the warrant not fatal to the establishment of probable cause. (People v. Montgomery (1963), 27 Ill. 2d 404.) People v. Clark (1981), 95 Ill. App. 3d 496, 420 N.E.2d 259, is distinguished by the State because there the affiant did not have personal knowledge of defendant’s criminal acts and the credibility of the informant had not been established. Finally, the State relies on People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471, as controlling under the facts of this case.

The Illinois Supreme Court has said that affidavits in support of search warrants are to be tested and interpreted in a commonsense and realistic fashion rather than a hypertechnical one (People v. Thomas (1975), 62 Ill. 2d 375, 381), and the determination of whether probable cause exists to support a search warrant requires a pragmatic analysis of everyday life on which reasonable and prudent men, not legal technicians, act. (See People v. Blitz (1977), 68 Ill. 2d 287, 292.) Affidavits should not be found deficient through hypertechnical scrutiny. United States v. Ventresca (1965), 380 U.S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741.

As observed in People v. Hanei (1980), 81 Ill. App. 3d 690, 703, 403 N.E.2d 16, the cases disclose a considerable play on words in defining probable cause. The court there quoted as a commonly accepted and realistic definition the language in People v. Fiorito:

“ ‘If there is reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged, it is a sufficient basis for the issuance of a search warrant. [Citation.]
A complaint for such a warrant is sufficient to authorize its issuance when the facts, stated and sworn to, show probable cause for the writ. It is not required that the complaint show, beyond a reasonable doubt, that the warrant should be issued. [Citations.]’ ” People v. Fiorito (1960), 19 Ill. 2d 246, 257.

The alleged deficiency in People v. Hanei (1980), 81 Ill. App. 3d 690, 403 N.E.2d 16, was the lack of specificity as to the items sought in the search. Here the item, heroin, was not indefinite. The existence of heroin in the residence of defendant is the alleged deficiency. Under the facts of the case at bar, we see no distinction. In each of the heroin sales two locations, the Rib Pit and 609 May Street, were the locus of the transactions. A consistent pattern was established by the four transactions. It would appear probable to a reasonably cautious and independent magistrate that the heroin was being maintained at 609 May Street before being transported to the Rib Pit for delivery. It cannot be said that the issuance of the warrant was based only upon a possibility or upon speculation or conjecture.

The fact that defendant, Jackson and Prater left defendant’s home prior to each of three of the controlled sales was convincing evidence of probable cause. The magistrate was entitled to render a judgment of probable cause based upon the common-sense reading of the entire affidavit. (United States v. Ventresca (1965), 380 U.S. 102, 109, 13 L. Ed. 2d 684, 689, 85 S. Ct. 741, 746.) There was sufficient information from which the magistrate could conclude that defendant was engaged in the sale of large quantities of narcotics. Furthermore, the search was limited to the defendant’s residence. State v. Watson (1976), 113 Ariz. 218, 220, 550 P.2d 89, 91; see 1 W. LaFave, Search and Seizure sec. 3.2, at 486-87 (1978).

In a recent case, we approved the issuance of a search warrant of a suspect’s house which was one to V-k miles from the place where the body of a homicide victim was found. At the scene, a charge receipt was located near the victim bearing the suspect’s name, residential address and was dated the day preceding the day the victim’s body was discovered. We held that the sales receipt, bearing so recent a date and found near the body, established the probability that defendant was linked to the offense so as to reasonably permit the search of his residence. People v. Wolski (1980), 83 Ill. App. 3d 17, 403 N.E.2d 528.

In People v. Mitchell (1978), 61 Ill. App. 3d 99, 377 N.E.2d 1073, a finding of probable cause to search a suspect’s house was supported by the affiant’s reasonable belief that the suspect had killed his former mother-in-law in Berwyn. There, the suspect’s ex-wife told the affiant police officer by telephone from Florida that her ex-husband had just beaten her and her father and had returned to his home in Bartlett, Illinois. She said she knew he was at home in Bartlett because he had just answered her telephone call to that location.

The court concluded that because the affiant had sufficient information to believe the suspect had killed his former mother-in-law, it was probable that evidence of the crime would be found in the suspect’s residence. In that case, neither the affiant nor his informant, the suspect’s former wife, had seen the evidence sought in the place desired to be searched. Nonetheless, based upon the probability that evidence of the suspect’s crime would be found in his residence, the court found no error in the denial of the motion to suppress.

Further, in People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471, the court found reasonably sufficient the affidavit of what appeared to be a police officer and which consisted largely of hearsay of an alleged eyewitness. The court concluded that the affidavit established probable cause to believe that the defendant shot and killed the victim and, therefore, the issuing judge could reasonably infer that the weapon used might be at defendant’s home nine days later. The denial of the motion to suppress was affirmed.

Defendant’s reliance on People v. Clark (1981), 95 Ill. App. 3d 496, 420 N.E.2d 259, is misplaced. This court concluded in Clark that the second prong of the Aguilar test (Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514) had not been satisfied and the complaint for search warrant was properly quashed. The question there was whether a substantial basis existed for the magistrate to credit the hearsay of the affiant’s informant. In the case at bar, the affiant did not rely upon his informant for his basis of belief that heroin was in the premises at 609 May Street. While the informant’s original statements to the police were the basis for the four controlled purchases of heroin which subsequently took place, the complaint for search warrant was actually based on direct police observation of the activity at 609 May Street. It was not necessary for the magistrate to rely on the affiant’s information from his informant regarding the existence of the quinine bottle since the circumstances of the controlled purchases adequately established the probable cause. The search warrant was not sought for the purpose of the quinine bottle, but rather for the seizure of heroin. In any event, we further observe that a substantial basis for crediting the informant is contained within Officer Bullock’s complaint and affidavit for search warrant. There was no error in the denial of the motion to suppress. The quinine bottle was seized pursuant to the search warrant for heroin. The search warrant was based upon probable cause.

II

Defendant next contends that the jury’s independent determination of defendant’s guilt or innocence was tainted by a prosecutorial remark in closing argument. The prosecutor said:

“MR. CONROYD: Where is Duke Jackson? He is over in the County Jail. He can call him just as quickly as I can call him.”

Defendant’s position is that since he was tried on a theory of accountability for Jackson’s conduct, the suggestion that he is in jail would imply to the jury that Jackson has already been convicted of the instant offense and therefore, defendant would be denied the presumption of innocence. Defendant maintains that such prosecutorial conduct was condemned in People v. Sullivan (1978), 72 Ill. 2d 36, and People v. Poll (1979), 74 Ill. App. 3d 534, 393 N.E.2d 732. He also distinguishes People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038, where the court found the error not prejudicial because the defendant had invited the error.

The State maintains the error was invited by the defendant when the defense counsel said during closing arguments:

“MR. WILSON: Where is Duke Jackson? Why don’t they bring him here. They haven’t even explained his situation.”

We agree that defendant cannot claim error where the prosecutor’s remarks are in reply to and in fact were invited by defense counsel’s argument. People v. Dixon (1982), 91 Ill. 2d 346; People v. Vriner (1978), 74 Ill. 2d 329; People v. Zuniga (1973), 53 Ill. 2d 550; People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.

Also we agree that the prosecutor was entitled to answer the second part of defense counsel’s question to the jury. It was defense counsel who asked “[wjhere is Duke Jackson?” Without the prosecutor responding as to Jackson’s precise whereabouts, the jury would be left to speculate as to Jackson’s whereabouts. The State was entitled to explain Jackson’s absence from the trial when defendant made it an issue in closing argument. The defendant cannot complain where he has opened the door and invited comment on inadmissible evidence. (People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.) Additionally, the jury was admonished and under these circumstances we do not believe defendant was denied a fair trial. People v. Dixon (1982), 91 Ill. 2d 346.

Ill A

Defendant contends that his deliveries of substance containing heroin to agent Warren on March 6 and 21 were a single course of conduct during which the nature of the criminal objective didn’t substantially change. Defendant claims it was error to impose a consecutive sentence for the March 21 conviction where section 5 — 8—4(a) of the Unified Code of Corrections prohibits consecutive sentences under such circumstances. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a).) Section 5 — 8—4(a) provides in part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. Sentences shall run concurrently unless otherwise specified by the court.” Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(a).

In support of there being a single course of conduct without change in the criminal objective, defendant states that indictments for both the March 6 and March 21 offenses were handed down the same day. In both cases, defendant exchanged the heroin for a “prop” from agent Warren at the same location and the deliveries were in the context of a single investigation. Finally, defendant contends that during the sentencing hearing the State acknowledged that there was a “course of conduct” when it requested a consecutive sentence for the March 21 offense.

Defendant relies upon the language of People v. King (1977), 66 Ill. 2d 551, 565, a case involving the imposition of a concurrent sentence, for its analysis of section 5 — 8—4(a). There the supreme court observed that in enacting section 5 — 8—4(a), the legislature recognized the prejudice which results from consecutive punishment for multiple offenses motivated by the same criminal objective. The court said that criminal objective is relevant to whether a consecutive sentence can be imposed.

Defendant also relies on People v. Fieberg (1982), 108 Ill. App. 3d 665, 439 N.E.2d 543, and this court’s decision in People v. Ingram (1980), 84 Ill. App. 3d 495, 405 N.E.2d 864. In Ingram, we held that the test to determine whether particular chargeable offenses are part of a single course of conduct, during which there was no substantial change in the nature of the criminal objective, is the independent motivation test. That is, all the surrounding facts must be appraised objectively to determine which acts were independently motivated and which were merely part of an independently motivated course of conduct. 84 Ill. App. 3d 495, 501, 405 N.E.2d 864.

The State maintains that defendant’s offenses on March 6 and March 21 were not part of a single course of conduct and were not motivated by the same criminal objective. The State relies on People v. Brownfield (1976), 52 Ill. App. 3d 829, 366 N.E.2d 308. There, the defendant had sold an undercover agent a gram of a substance containing heroin. The agent thereupon obtained a search warrant and seized 37.9 grams of a substance containing heroin in'the defendant’s refrigerator. In Brownfield, the court found that the one gram unit and the 37.9 gram unit to be separate “batches” and, together with the separate conduct of defendant’s delivery and possession, concluded each offense was a separate act. The court further observed that each offense required different elements of proof. The consecutive sentence was not barred by section 5 — 8—4(a). However, in jBrownfield the defendant was appealing a concurrent sentence. We therefore do not believe the instant case is controlled by Brownfield.

In People v. Garrett (1978), 57 Ill. App. 3d 906, 373 N.E.2d 792, a case strikingly similar to the instant case, the defendant’s consecutive sentence was affirmed although the issue of the instant appeal was not directly addressed. There, the presentence report disclosed defendant’s plea of guilty to three counts of unlawful delivery of a controlled substance. Each count related to three separate deliveries by defendant to the same Metropolitan Enforcement Group (MEG) agent in another county on February 19, and March 19 and 25, 1975. The last delivery occurred only two days before the delivery upon which the appeal was based and, in every pertinent regard, was the same as the previous three deliveries except as to the county in which it occurred. The defendant’s conviction and consecutive sentence were affirmed.

We conclude that defendant’s deliveries on March 6 and 21 were not part of a single course of conduct. (See People v. Brownfield (1976), 52 Ill. App. 3d 829, 366 N.E.2d 308.) Furthermore, we believe defendant’s criminal objective on March 21 was not the same as his criminal objective on March 6. We do not believe the facts of this case bring it within the prohibition of section 5 — 8—4(a).

On March 6, defendant’s conduct was the exchange and sale of six packets of heroin in addition to $30 for a General Electric 19-inch television set. His criminal objective was the delivery of a controlled substance for valuable consideration. On March 21, defendant’s conduct was similar in that he had arranged for Duke Jackson to deliver four tinfoil packets of heroin, in defendant’s presence, in exchange for which defendant received a bottle of quinine. We do not rely upon this slight variation in the facts for our holding. Rather, as in Brownfield, separate and distinct units of controlled substance were delivered. Further, they were not delivered simultaneously, but instead pursuant to separate transactions occurring at different times.

Additionally, while defendant engaged in a general course of conduct wherein he was convicted of committing two offenses of the same nature, i.e., delivery of controlled substances, it was not the “single course of conduct” contemplated by section 5 — 8—4(a). As the court noted in People v. King (1977), 66 Ill. 2d 551, this section was enacted in 1973 in recognition of the prejudicial effect of a double punishment for multiple offenses motivated by the same criminal objective. In arriving at this conclusion, the court analyzed those cases where defendants were sentenced for multiple offenses incidental to or motivated by some greater criminal objective. Defendant’s March 21 delivery to agent Warren in the instant case was not incidental to or motivated by defendant’s delivery on March 6. In fact, other than delivering to the same person in the same location, everything else about defendant’s conduct and criminal objective was different. Further, in each the criminal objective was satisfied and completed upon the delivery of the agreed consideration.

Defendant cites no authority nor suggests any rationale for merging the two acts into the same conduct by reason of the indictments for both offenses being handed down on the same day. Nor do we perceive how the two acts are joined merely because they were subject to the same undercover investigation.

The record discloses this statement by the State during sentencing:

“MR. CONROYD: The Defendant in this case shows he is not a petty distributor. It shows a course of conduct, delivery on March 6, delivery on March 21. I ask at this time that the sentence imposed be a sentence of seven consecutive years.”

Defendant contends that this statement is an admission by the State that the acts were a single course of conduct for the purpose of section 5 — 8—4(a). For the reasons previously stated, we do not believe defendant’s offenses were a single course of conduct. Nor do we believe the State intended to so suggest in light of the context of the statement, wherein the State was urging the imposition of a consecutive sentence.

B

Defendant next contends the imposition of a consecutive sentence was improper where an element of section 5 — 8—4(b) was not met (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b)). It provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4(b).

Relying on People v. Pittman (1982), 93 Ill. 2d 169, defendant argues that the trial court failed to make the required finding that a consecutive term was required to protect the public from defendant’s further criminal conduct. There the court held that the imposition of a consecutive sentence does not imply that the trial court was of the opinion that the consecutive term was necessary so as to satisfy the statutory requirement. The court held, however, that although a finding in the language of the statute is preferred, the failure to do so does not require reversal. The Pittman court in affirming a consecutive sentence relied upon the trial court’s review of the defendant’s prior history of serious narcotic-related convictions as a valid basis under the statute for the imposition of a consecutive sentence. The supreme court noted that one of the defendant’s prior offenses was for unlawfully selling or furnishing cocaine. 93 Ill. 2d 169, 177-78.

Similarly in the instant case the court observed in pertinent part:

“This is the second time that the Defendant has been found guilty of the same charge. It does not come in the section providing for an enhancement of penalties. I don’t think that counsel is really asking for an enhancement of that, only asking that the sentence that we pronounced today be made to be served not concurrently, but consecutively to the sentence before.
I think the offense of delivery of narcotics, drugs goes, without saying to be one of the worst offenses that a person can commit considering the degredation [sic] of the people who use these drugs and especially if the person who is dealing in it, delivering it is not an addict himself, but is delivering solely for the profit that he can get out of it.
I think the evidence indicates that that was the type of transaction that went on in this case, and I think it also indicates that he was not a small dealer.
When I think of all the factors of the case, I don’t think it is asking too much by the State that he be given a consecutive sentence. I think the State could have very easily asked for more than a consecutive sentence, but could have asked for double the sentence under the section I alluded [to] before.”

The language of the trial court, like that in Pittman, did not follow the precise words of the statute. Nonetheless, it conveys the trial court’s regard for the nature and circumstances of the offense. The court viewed the offense as among the worst that a person can commit. The court expressed its analysis of the history and character of defendant as a second-offense deliverer of narcotics for profit. The trial court’s reference to the degradation of the people who use the narcotics in which this defendant deals supplies an adequate basis for the imposition of a consecutive sentence to protect the public from the further criminal conduct of the defendant. Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4(b).

Finally, this court has recently held that where the defendant has not claimed that the sentence would have been different had the court stated farther reasons for its determination, there is no prejudice due to any failure to specify said reasons for the sentence ultimately imposed. (People v. Peacock (1982), 109 Ill. App. 3d 684, 440 N.E.2d 1260.) As the court stated in People v. Riley (1981), 99 Ill. App. 3d 244, 424 N.E.2d 1377, had the defendant wished greater specificity, he should have requested it at the time of sentencing.

We are unpersuaded by defendant’s additional authority of People v. Griffin (1982), 113 Ill. App. 3d 184, 446 N.E.2d 1175, where the court reduced the defendant’s four consecutive sentences for four conspiracy and theft-by-credit-card offenses to concurrent sentences. The court found that the offenses were nonviolent, no weapon was used and they involved consensual retail purchases. The court disagreed with the trial court and found that consecutive sentences were not required for the protection of the public. We believe the case to be inapposite on its facts to the case at bar because of the considerably greater danger to the public presented by a dealer in heroin.

IV

Defendant contends that the language of the trial court quoted earlier evinces a mistaken belief that defendant was eligible for an enhanced penalty under section 408(b) of the Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 561/2, par. 1408(b)). He maintains that the cause must be remanded for resentencing because the trial court’s error as to the availability of a sentence twice the maximum term otherwise authorized may have affected the trial court’s sentencing judgment. Defendant relies on People v. Phillips (1978), 56 Ill. App. 3d 689, 371 N.E.2d 1214 (Jones, J., dissenting), where the majority determined that enhancement is only available for second offenses which were committed after the initial conviction. Section 408(b) provides in relevant part:

“(b). For purposes of this Section, an offense is considered a second or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this Act or under any law of the United States or of any State relating to controlled substances.” Ill. Rev. Stat. 1977, ch. 561/2, par. 1408(b).

The majority in Phillips construed the statute as precluding enhancement under the facts of that case where enhancement was based upon two offenses involving controlled substances occurring the same day as the offense being appealed. The majority concluded that enhancement statutes were intended to provide a warning to a first offender and that under the circumstances of that case since the defendant had not been convicted before embarking upon his third offense he was not afforded the opportunity to disengage in criminal activity. The case was remanded for resentencing. People v. Phillips (1978), 56 Ill. App. 3d 689, 695, 371 N.E.2d 1214, citing People v. Klemick (1941), 311 Ill. App. 508, 511, 36 N.E.2d 846.

The State appears to concede that Phillips precludes enhancement where the earlier conviction did not precede the enhanced-sentence offense as in the case at bar. The State relies instead on defendant’s earlier Federal conviction for a cannabis-related offense. Clearly, a cannabis offense is not a conviction “relating to controlled substances” and the State’s argument must be rejected. People v. Sanders (1977), 47 Ill. App. 3d 180, 361 N.E.2d 884.

Additionally, defendant relies upon People v. Marquis (1977), 54 Ill. App. 3d 209, 369 N.E.2d 372. There, the court remanded for re-sentencing because the trial court was under the mistaken belief that defendant had committed a Class A misdemeanor when in fact the penalty was a Class B misdemeanor. The maximum determinant sentences under these classifications were one year and six months respectively. Defendant was sentenced to 90 days, which is below the máximums for both classifications. Nonetheless the court, relying on People v. Brooks (1977), 50 Ill. App. 3d 4, 364 N.E.2d 994, remanded for resentencing free of any misunderstanding as to the limits of the sentence to be imposed. In Brooks, the trial court had mistakenly believed the offense was punishable by a four-year minimum sentence and used that belief as a reference, creating doubt in the reviewing court as to whether the trial court would have imposed the 10-year minimum sentence absent the mistaken belief.

We believe the case at bar is distinguishable from the cases relied upon by defendant. It is clear from the record that the trial court in the instant case made no error in concluding that defendant was eligible for a consecutive sentence. The trial court’s statement regarding the availability of an enhanced sentence cannot be said to be the basis upon which it entered a consecutive sentence. The court articulated other substantial statutory bases for its imposition of the consecutive sentence. The record fails to indicate that the trial court’s belief that an extended term could be imposed played any part in the sentence which it did impose. (See People v. Rush (1980), 91 Ill. App. 3d 366, 414 N.E.2d 899.) The other cases relied upon by the defendant, People v. Killen (1982), 106 Ill. App. 3d 65, 435 N.E.2d 789, and People v. Peace (1980), 88 Ill. App. 3d 1070, 411 N.E.2d 334, are distinguishable because in Killen the court found that the trial court short-circuits the sentencing procedure when it proceeds to a finding necessary for imposing an extended term, without first considering the factors in aggravation and mitigation (106 Ill. App. 3d 65, 67). Additionally, the court found that the finding under section 5 — 5—3.2(b)(2) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)(2)) of heinous or brutal behavior accompanying the offense was in error. In the instant case the trial court heard and considered evidence in aggravation and mitigation before entering the consecutive sentence and the sentence was one authorized under the law (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b)). In People v. Peace this court was unable to determine what role the court’s erroneous belief may have played in its sentencing of defendant. Such is not the case here where the trial court made it unmistakably clear what was the bases for the imposition of the consecutive sentence.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and HOPF, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE LINDBERG delivered the opinion of the court:

Defendant petitioned for rehearing on the issues of the validity of the search warrant and our determination that the two sales were not a single course of conduct. We find defendant’s petition without merit as to those issues.

However, defendant aptly notes that his final argument attacked both the consecutive and the maximum nature of the sentence as being the product of the trial court’s misapprehension concerning the availability of an enhanced sentence for this defendant. Neither the State nor this court’s opinion specifically addressed the effect the alleged misapprehension may have had on the trial court’s imposition of the maximum, as well as consecutive, sentence.

In his petition defendant reasserts his reliance on our opinion in People v. Peace (1980), 88 Ill. App. 3d 1090. However, in the instant case we are not confronted with the quandary the court faced in People v. Peace. Here the trial court made it clear in its remarks at sentencing that it was aware that defendant’s earlier conviction did not qualify him for an enhanced penalty. In fact, the judge specifically found that the instant conviction “does not come in the section providing for enhanced penalties.” He further expressed a specific awareness that the State was not asking for an enhanced penalty.

Under these circumstances, his later statement that the State could have very easily asked for double the sentence under the enhancement provision cannot be construed to indicate that he believed he could have imposed such a sentence.

For this reason and the reasons expressed in the principal opinion on this issue we find no error in the trial court’s imposition of the maximum penalty of seven years consecutive to the earlier-imposed sentence. We adhere to our original opinion and deny defendant’s petition for rehearing.

Petition for rehearing denied.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE PERLIN

text:
      In re MARRIAGE OF THERESA R. CAMPISE, Petitioner-Appellant, and JASPER J. CAMPISE, Respondent-Appellee.
    First District (2nd Division)
    No. 82—1959
    Opinion filed June 21, 1983.

      Karaganis & Gold, of Chicago (Charles J. Pesek, of counsel), for appellant.
    Kalcheim & Kalcheim, Ltd., of Chicago (Ilene E. Shapiro, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Petitioner, Theresa R. Campise (Theresa), instituted a dissolution of marriage action against respondent, Jasper J. Campise (Jasper), on October 24, 1978. On August 21, 1981, the trial court dissolved the marriage. On June 3, 1982, the court awarded temporary maintenance to Theresa and apportioned the marital property. On appeal, Theresa contends that the trial court abused its discretion in determining the amount and duration of maintenance; that the court failed to apportion fairly the marital property; and that the court should have awarded her offsetting marital property in lieu of an interest in Jasper’s pension benefits. For the reasons hereinafter stated, we reverse the judgment of the trial court and remand for further proceedings.

Theresa and Jasper were married on October 31, 1954. Their marriage produced three children all of whom are now adults. At the time their marriage was dissolved, the Campises owned a residence in Phoenix, Arizona, which had been appraised at $118,700 when Theresa tried to sell the property sometime in 1979 or 1980. At the June 3, 1982, property hearing, Theresa, who lives in the Phoenix residence, estimated that the house was now worth $125,000; Jasper, who resides in Chicago, estimated the current market value was $130,000. There was an outstanding balance on the residence of approximately $32,000. According to Theresa, the furniture and furnishings in the home were worth $1,500.

The Campises purchased a parcel of vacant real estate in New Mexico for $2,100 but stipulated that as of the June 3, 1982, hearing the market value of this property was unknown. The Campises also owned common stock valued at $5,450. Theresa’s attorney held in escrow $949, which sum represented the parties’ income tax refund for 1978, and Theresa possessed $2,000 to $3,000 in jewelry.

As of June 3, 1982, Jasper, a Chicago police officer for more than 30 years, was eligible to retire from the department and receive a pension from the Policeman’s Annuity and Benefit Fund. Arthur Harris Tepfer, a consulting actuary who was a witness for Theresa and was familiar with Jasper’s pension rights, testified that Jasper’s interest in the pension was 100% vested, i.e., nonforfeitable. Both Jasper and Tepfer testified that Jasper could not elect to receive a lump sum payout of his pension benefits in lieu of monthly payments. Jasper also testified that he could not assign his right to receive benefits or use his anticipated benefits as collateral for any purpose. The exact amount of the pension benefit Jasper will receive depends on the date of his retirement and whether he is then married.

The parties stipulated that Jasper had to his credit in the pension fund $28,036.49, which represented the annuity and benefit fund deductions from November 1, 1954, the day after the Campises were married, to February 15, 1982. (The record does not establish the significance of this latter date.) The Campises also stipulated that as of June 1, 1982, Jasper would be eligible to receive a monthly pension payment of $1,335.78 if he retired. Using that figure, Tepfer estimated that the “lump sum actuarial equivalent present value” of Jasper’s accrued benefit rights as of June 1, 1982, was $222,785.93. According to Tepfer, the “lump sum actuarial equivalent present value” is an actuarial concept representing the value of a particular series of payments converted into present-day dollars.

At the time of the June 3, 1982, property hearing, Theresa, age 51, was a high school graduate with no further educational or technical training. Theresa had been employed as a secretary until 1969, but she testified that she could not now work as a secretary unless she received additional secretarial training. She also testified that she stopped working in 1969 on the advice of her physician and that she presently is unable to work because she suffers medical problems with her back and neck which prevent her from sitting in one position for any extended period of time. Theresa undergoes physiotherapy several times a week and she also consults a psychiatrist, a neurologist and an orthopedist. Theresa takes regular medication.

Theresa testified that her monthly expenses were approximately $1,440 and that she has no source of income other than the $875 due from Jasper every month under an April 17, 1979, temporary maintenance award. She uses $375 of that amount for the monthly mortgage payments on the Phoenix residence and the balance of $500 goes towards her living expenses. In order to meet those expenses, Theresa was compelled to borrow money from her parents and to spend the proceeds from a $5,000 personal injury settlement she had received. Theresa owned no stocks or bonds in her own name and she had approximately $300 in her checking account.

Jasper, age 54, testified that he worked full time as a Chicago police officer and also worked part time for the National Broadcasting Company. His net monthly income from both jobs was $2,094 and his monthly expenses, including his obligations under the temporary maintenance award, were $1,954. On December 20, 1980, Jasper suffered a heart attack and was still receiving therapy at a local hospital as of June 3, 1982.

At the conclusion of the property hearing, the trial court found that despite her various medical problems and the fact that she had not worked for some time, Theresa nevertheless had the ability to work. The court awarded her $500 per month in temporary maintenance for a period of five years. Theresa also received the New Mexico real estate, all personal property in the Phoenix residence, half of the money held in escrow and $534 per month from Jasper’s pension whenever Jasper retired. The $534 represents 40% of the $1,335.78 monthly benefit Jasper would be entitled to receive if he had retired on June 1, 1982. Jasper was awarded all of the common stock, the balance of his pension, the remaining half of the escrow fund and all personal property in his possession.

The trial court ordered that the Phoenix residence be placed on the market for sale within 30 days after the judgment for dissolution was entered. Jasper was directed to continue making the mortgage payments until the residence was sold. Following the sale, Jasper would be credited for the principal portion of all mortgage payments made by him since August 21, 1981, the date on which the court dissolved the marriage, and the balance of the proceeds would be divided equally between the parties. Theresa had exclusive possession of the Phoenix residence until it was sold. A written order conforming to the court’s findings and division of marital property was entered on July 6, 1982, from which Theresa appeals to this court. The order requiring sale of the Phoenix residence was stayed pending the disposition of this appeal.

Theresa first contends that the trial court abused its discretion in determining the amount and duration of maintenance. Once the trial court has ascertained that maintenance is appropriate, a finding which is not challenged here, it must consider the following factors in fixing the duration and amount of maintenance:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ***;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties; and
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” Ill. Rev. Stat. 1981, ch. 40, par. 504(b).

Theresa asserts that the trial court should not have limited the maintenance award to five years. The court limited the period of maintenance because it found that Theresa was able to work. While section 504 of the Illinois Marriage and Dissolution of Marriage Act empowers a trial court to make awards of limited duration, such awards should not be based on speculation as to the future conditions of the parties. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 845, 398 N.E.2d 868.) From the record before us, Theresa’s age, lengthy marriage, poor health, educational background, lack of special skills, and long absence from the labor market indicate that she is not employable now or in the foreseeable future. The trial court’s finding that Theresa was able to work appears to have been predicated on speculation as to her future employability. We therefore conclude that the court erred in limiting the maintenance award to a period of five years.

We do not, however, agree with Theresa’s contention that she should have been awarded permanent maintenance. Although there is evidence that Theresa presently suffers from health problems which prevent her from working, there appears to be no evidence that these problems are permanent. In our opinion, the trial court on remand should reserve jurisdiction over the maintenance award for the five-year period and at that time reevaluate the need for an award of further maintenance. This approach adds flexibility to the trial court’s order because the ultimate duration of the award will be based upon the parties’ actual circumstances and not upon speculation as to what those circumstances might be. In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 297-98, 426 N.E.2d 1066; In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 568-69, 425 N.E.2d 1146.

Theresa also argues that the amount of maintenance awarded ($500) is insufficient to allow her to maintain her standard of living and that Jasper could afford to pay her more while still maintaining his own standard of living. This argument is related to Theresa’s contention concerning the duration of maintenance and thus should be reconsidered by the trial court on remand. We note, however, that in calculating her monthly expenses, Theresa includes the monthly mortgage payments on the Phoenix residence, which are paid by Jasper, but excludes the same item in computing Jasper’s expenses.

Theresa next contends that the trial court abused its discretion in the overall distribution of marital property. The touchstone of proper apportionment is whether a directed distribution is equitable in nature. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1132, 398 N.E.2d 126.) In allocating marital property, the trial court must consider all relevant factors which, in this case, include:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and nonmarital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of the property is to become effective ***;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
* * *
(9) whether the apportionment is in lieu of or in addition to the maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.” Ill. Rev. Stat. 1981, ch. 40, par. 503(c).

After carefully reviewing the record, we are of the opinion that the trial court erred in the apportionment of the marital property. Theresa’s age, lengthy marriage, poor health, educational background, lack of vocational skills and 14-year absence from the labor market strongly suggest that she is presently unable to maintain the standard of living she enjoyed while she was married. Jasper, on the other hand, has both full time and part time employment and therefore has a greater opportunity to acquire capital assets and income. In light of each party’s relative economic circumstances, we conclude that Theresa did not receive an equitable share of the marital property. We therefore remand the cause for reconsideration of the property distribution award.

Finally, Theresa contends that the trial court erred in awarding to her a deferred distribution of Jasper’s pension benefits. In Illinois, pension rights, whether matured, vested or nonvested, contributory or noncontributory, are property under section 503 of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1981, ch. 40, par. 503; In re Marriage of Hobbs (1982), 110 Ill. App. 3d 451, 455, 442 N.E.2d 629; In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 840, 398 N.E.2d 868.

In In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511, this court considered at length the proper allocation of pension benefits:

“The trial court can in some cases determine, by actuarial evidence, the present value of [a pension] at the time of [the dissolution of the marriage]. [Citation.] The amount of the pension *** included as marital property would then be the present value of the pension multiplied by a fraction whose numerator is the number of years (or months) of marriage during which benefits were being accumulated, and whose denominator is the total number of years (or months) during which benefits were accumulated prior to the [dissolution]. Once the trial court has determined the present value of that part of the pension *** which is marital property, the trial court may award the interest to the employee spouse and give the nonemployee spouse other marital property to offset her marital share in the interest. [Citation.]
In those instances where it is difficult to place a present value on the pension *** due to uncertainties regarding vesting or maturation, or when the present value can be ascertained but the type, or lack, of other marital property makes it impractical or impossible to award sufficient offsetting marital property to the nonemployee spouse, then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid ‘if, as and when’ the pension becomes payable. [Citations.] The marital interest in each payment will be a fraction of that payment, the numerator of the fraction being the number of years (or months) of marriage during which benefits were being accumulated, the denominator being the total number of years (or months) during which benefits were accumulated prior to when paid. The trial court, when using this method of allocation, will retain jurisdiction and award the nonemployee spouse some percentage of the marital interest in each payment. [Citations.]” In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511.

From the record, it appears that in the instant case there is insufficient offsetting marital property to award to Theresa in lieu of an interest in Jasper’s pension rights. At oral argument, however, Theresa’s counsel informed this court that Theresa was willing to waive her rights in Jasper’s pension in return for the Phoenix residence. We believe that the trial court should give serious consideration to this offer when, on remand, it reconsiders the property distribution.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

DOWNING, P.J., and STAMOS, J., concur.


author: JUSTICE ALLOY

text:
    THE SANGAMO CLUB et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants — (The Island Bay Yacht Club, Plaintiff).
    Fourth District
    No. 4—82—0827
    Opinion filed June 21, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellants.
    Craig A. Randle, of Londrigan & Potter, P.C., of Springfield, for appellees.
   JUSTICE ALLOY

delivered the opinion of the court:

The issue on this appeal is whether a self-imposed 15% gratuity-charge, which is added to these not-for-profit clubs’ members’ charges for food and beverages, is subject to the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.) and the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 8 — 11—1). Imposition of the fixed 15% gratuity, which is added to all members’ charges for food and beverages, was adopted by the boards of directors of plaintiff clubs, on behalf of the members of each club. The circuit court determined that the 15% gratuity was not subject to the above acts, and it ordered that funds held in a special protest fund be returned to the clubs. The State Department of Revenue appeals.

The pivotal question for determination is whether the gratuity charges imposed by the clubs upon members’ bills were mandatory or discretionary. (Peoria Hotel Co. v. Department of Revenue (1980), 87 Ill. App. 3d 176, 178-79, 408 N.E.2d 1182; Fontana D’Or, Inc. v. Department of Revenue (1976), 44 Ill. App. 3d 1064, 358 N.E.2d 1283.) The following stipulated facts formed the basis for the court’s determination:

“1. The Plaintiffs are not-for-profit corporations operating as private clubs, duly organized and existing under the laws of the State of Illinois.
2. The Plaintiff Clubs maintain a restaurant and bar facility on the premises with use of said facility being restricted to members and guests of club members.
* * *
4. The Plaintiff Clubs employ individuals to provide services in conjunction with the operation of the restaurant and bar facility, including waiters, waitresses, bartenders and busboys. The aforesaid employees of the Plaintiffs are compensated by a fixed salary paid by the Plaintiff Clubs.
5. The charges for food and beverages served in the Plaintiff Clubs’ restaurant and bar facilities are assessed to the individual members on monthly billing statements with no cash being transferred at the time said food and beverages are consumed.
6. The Board of Directors of each Plaintiff as members and acting on behalf of the remaining members enacted a By-Law, or Club Rule, providing for the addition of a gratuity to be added to each bill for food and beverage based upon a percentage of the cost of the food and beverages. The gratuity was implemented as a codification of the general custom of ‘tipping’ enacted by the Board of Directors as members and representatives of the membership in order to avoid any inequality in the service provided to the various members based upon the ability of an individual member to ‘tip’ in excess of the generally accepted custom.
7. The amount of the gratuity added to the billing statement of the individual member is an amount generally accepted as a reasonable gratuity.
8. All of the monies collected as a result of the percentage gratuity are paid directly to the service personnel separate and apart from their fixed wages.
9. Each of the Plaintiff Clubs has also invoked a rule prohibiting any additional gratuity or ‘tip’ being given to the service personnel other than that added to the monthly billing statement.
10. The Department of Revenue of the State of Illinois has assessed and collected from the Plaintiff Clubs the tax imposed by the Retailers’ Occupation Tax Act, Chapter 120, Section 440, et seq., and under the Cities and Villages Act, Chapter 24, Section 8 — 11—1, of the Illinois Revised Statutes on these monies collected as a gratuity.
11. The Plaintiffs have paid monies so assessed under protest and said monies have been segregated in a special fund by the Defendants pending resolution of this action.”

The State argues that the issue is controlled by the decisions in Peoria Hotel Co. v. Department of Revenue (1980), 87 Ill. App. 3d 176, 408 N.E.2d 1182, Fontana D’Or, Inc. v. Department of Revenue (1976), 44 Ill. App. 3d 1064, 358 N.E.2d 1283, and Cohen v. Playboy Clubs International, Inc. (1974), 19 Ill. App. 3d 215, 311 N.E.2d 336. However, all of these cases dealt with commercial businesses which imposed an automatic charge, designated “gratuity,” upon customers, without any discretion regarding the charge afforded the customers at all. In those cases, the courts determined that the “gratuity” charges were subject to occupation tax, because the payment was mandatory. In the case at bar, the charges were imposed by the members of the clubs, upon themselves, through their duly elected boards of directors. Although the action was taken collectively, through the boards, that does not alter the essentially voluntary and discretionary nature of the action. Should the members so decide, they could presumably act to modify the nature or amount of the gratuity or abolish it altogether, through board action. As stipulated, the gratuity that was implemented by each clubs’ members was as a “codification of the general custom of ‘tipping,’ ” and “in order to avoid any inequality in the service provided to the various members.” We conclude that since these fixed 15% gratuity charges were imposed as a voluntary and discretionary act of the members of the clubs, they are not to be included in gross receipts for the purpose of the imposition of occupation taxes. In Fontana D’Or, the court noted the distinction between commercial businesses which externally impose a mandatory gratuity on charges and those gratuities adopted, pursuant to club bylaws, by club membership as a codification of the social custom of tipping. (44 Ill. App. 3d 1064, 1066, distinguishing Big Foot Country Club. v. Wisconsin Department of Revenue (1975), 70 Wis. 2d 871, 235 N.W.2d 696.) The Big Foot case noted in Fontana D’Or was a Wisconsin Supreme Court decision on similar facts as that pertaining here. There, and we cite with approval, the court stated:

“This mandatory 15 per cent add-on service charge is a mere codification by the club’s bylaws of the social custom of tipping. Without this bylaw, the members undoubtedly would tip a percentage approaching 15 per cent of their bill anyway, out of social custom. It is conceded that this tip would not be subject to the sales tax. So, too, the 15 per cent service charge should not be subject to the sales tax. Both are paid to the service employees and the element of discretion as to whether to leave 15 per cent or not is essentially the same. Without the bylaw imposing the 15 per cent service charge, the members’ discretion to leave a 15 per cent tip would be constrained by social custom. The social custom in this case has merely been transformed into a club bylaw. The members of the appellant collectively exercised their discretion and adopted the bylaw requiring the 15 per cent service charge. This 15 per cent is a reasonable amount and corresponds to the usual amount left by the general public in public restaurants. The members, if they chose, could by simply amending the bylaws of the club, again exercise their collective discretion and increase or decrease the amount to be added on their bills. Although this 15 per cent is called a service charge, it is more appropriately viewed, under the circumstances of this case, as a gratuity or tip for the service employees. As such, it is not part of the gross receipts of the appellant.” (70 Wis. 2d 871, 877, 235 N.W.2d 696, 699.)

We agree with the basic reasoning of the court in Big Foot.

For the reasons stated above, we affirm the judgment of the circuit court of Sangamon County.

We note, in closing, that the legislature amended the Retailers’ Occupation Tax Act, effective January 1, 1980, to specifically exclude mandatory service charges from gross receipts where the charges are separately stated and paid directly to the service employees. (1979 Ill. Laws 4240.) Thus, our decision herein applies only to those funds paid under protest from May 1977 through December 1979 by plaintiffs.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.