author: JUSTICE TRAPP

text:
    GLORIA W. THATCHER, Adm’r of the Estate of Anne S. Thatcher, Deceased, Plaintiff-Appellee, v. GARY L. EICHELBERGER et al., Defendants.—(STATE FARM FIRE AND CASUALTY COMPANY, Intervening Appellant.)
    Fourth District
    No. 16810
    Opinion filed December 10, 1981.
    Modified on denial of rehearing January 22, 1982.

      Hurshal C. Tummelson and Betsy Pendleton Wong, both of Phebus, Tummelson, Bryan & Knox, of Urbana, for appellant.
    George Kaye, Ltd., of Paxton, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Two issues are presented: (1) Whether an insurer can be subrogated to the rights of its insured to the proceeds of a wrongful death action, where the insurer paid a claim to the insured under an uninsured motorist provision of an insurance policy; and (2) whether a settlement agreement between the parties is final prior to its execution. We conclude that the insurer is entitled to subrogation and that the settlement was final.

The decedent, Anne Thatcher, died as a result of injuries she received in a collision which occurred on August 17,1975, between the motorcycle on which she was a passenger and a truck. The motorcycle was driven by defendant, Gary Eichelberger, and the truck was driven by defendant, Larry Tribbey. Plaintiff, Gloria Thatcher, decedent’s mother, was appointed administrator of decedent’s estate. Gloria Thatcher subsequently commenced this wrongful death action against defendants, alleging that their negligence caused Anne Thatcher’s death. Because defendant Eichelberger was uninsured, prior to filing the wrongful death action, a claim was made to State Farm Fire and Casualty Company (State Farm), intervenor-appellant, under the uninsured motorist provision of the insurance policy previously issued by State Farm to plaintiff. After negotiations, State Farm paid $9,000 to plaintiff as administrator of her daughter’s estate. Plaintiff signed a release and trust agreement on February 20,1976, which provided in part:

“For the consideration aforesaid, and to the extent of any payment made hereunder, the undersigned agrees to hold in trust for the benefit of the Company all rights of recovery which he shall have against any person or organization legally liable for such bodily injuries, and assigns to the Company the proceeds of any settlement with or judgment against such person or organization.”

On February 24,1976, plaintiff obtained an order from probate court authorizing both the insurance settlement, and the assignment to State Farm of rights of recovery against third parties on account of Anne Thatcher’s injuries and death to the extent of the amount received from State Farm, including the language:

“[Ujpon receiving that sum, the administrator execute and deliver to the company a discharge from liability under the policy with an assignment of rights of recovery against third persons on account of decedent’s injuries and death to the extent of the amount paid.”

Plaintiff subsequently filed this action for wrongful death, and State Farm filed an application to be made a party, asserting its rights under the trust agreement. The court allowed State Farm’s application.

At a pretrial conference on February 7,1980, a settlement was agreed upon by the parties. The docket entry by the court on that date indicated that counsel for all parties were present, and further stated:

“Parties stipulate that upon payment of $2,500 from defendant Eichelberger and $2,500 from defendant Tribbey (total $5000.00) to plaintiff; State Farm shall be reimbursed $3000.00 whereupon the cause shall be dismissed. Payments are to be made within 14 days. On joint motion of all parties, cause removed from 2/25/80 jury calendar and continued generally pending settlement.”

On June 4, 1980, the defendants filed a joint petition, alleging plaintiff had refused to abide by the settlement terms and execute the necessary releases, despite the fact that the consideration for the settlement had been tendered to her. The petition requested that the court order the plaintiff to conclude the settlement agreed upon at the pretrial conference. At the hearing on the petition on September 16, 1980, plaintiff’s attorney argued that due to recent case law, State Farm could not recover any part of the wrongful death proceeds. Plaintiff subsequently filed a motion to dismiss State Farm as a party, alleging that the trust agreement that plaintiff signed when she received the payment from State Farm was “void and contrary to public policy” under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1 et seq.) and should not be enforced. State Farm filed an objection to plaintiff’s motion, and the court allowed the motion based upon the precedent of In re Estate of Schmidt (1979), 79 Ill. App. 3d 456, 398 N.E.2d 589, and National Bank v. Podgorski (1978), 57 Ill. App. 3d 265, 373 N.E.2d 82. The written order dismissing State Farm as a party entered by the court included a finding under Supreme Court Rule 304 (Ill. Rev. Stat. 1979, ch. 110A, par. 304) that there was no just reason to delay appeal, from which order State Farm has appealed.

The statutory basis for the claim that insurance companies should not be allowed subrogation rights in wrongful death actions is section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2), which provides:

“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” (Emphasis added.)

Based upon this provision this court, in Podgorski, held that an insurance company was properly denied subrogation in a wrongful death action settlement. The insurance company had made and, in the future, would be required to make, payments to the widow of the decedent pursuant to a survivor’s benefit provision of an auto insurance policy it had issued to decedent. The court noted that the insurance company was making payments to the widow to compensate her for loss of support, while recovery under the Wrongful Death Act is for both loss of support and for losses occasioned in addition to support. Further, there was no formula available to the court to determine what portion of the wrongful death award was indemnifying the widow for her loss of support. The court found that the above quoted language from the Wrongful Death Act indicated a public policy to prohibit subrogation rights from attaching to Wrongful Death Act proceeds.

However, with regard to payment under the uninsured motorist provision of an insurance policy, it is noted that section 143a of the Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a) requires that uninsured motorist provisions be included in every insurance policy, and further states:

“In the event of payment to any person under the coverage required by this Section and subject to the terms and conditions of such coverage, the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury or death for which such payment is made, including the proceeds recoverable from the assets of the insolvent insurer.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 73, par. 755a(3).

In Glidden v. Farmers Automobile Insurance Association (1974), 57 Ill. 2d 330, 312 N.E.2d 247, the supreme court permitted subrogation by an insurer who had made payments under its uninsured motorist coverage to the plaintiff, whose wife, while a pedestrian, had been struck and killed by an uninsured motorist. The insurer sought subrogation in the dramshop action filed by plaintiff under section 14 of article VI of the Dramshop Act (Ill. Rev. Stat. 1973, ch. 43, par. 135) which, like the Wrongful Death Act, provides that recovery shall be for the exclusive benefit of the person injured in loss of support. The supreme court concluded that the insurance company was entitled to subrogation to any monies recovered by the plaintiff, to the extent of payments made under the uninsured motorist coverage. The court stated:

“We believe that the insurer should be subrogated to any monies recovered from the uninsured tortfeasor and under the dramshop action.” 57 Ill. 2d 330, 338, 312 N.E.2d 247, 252.

. In Glidden, the supreme court pointed out that the statute made inclusion of an uninsured motorist clause mandatory. Neither Schmidt nor Podgorski concern the uninsured motorist provisions, but sought subrogation under the general contract provisions of the policy. Neither opinion had occasion to consider the effect of the subrogation provisions of section 143a of the Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 755a) as a statement of legislative policy.

One finds that in 1963 and 1965, section 143a of the Code did not include any provision with regard to subrogation by the insurer. On the contrary, in 1967 and 1969, the subrogation provision was included. It appears that in 1971, section 143a of the Code was repealed effective January 1,1972, but was thereafter restored, effective October 1973. The supreme court opinion in Glidden does not refer specifically to section 143a of the Code, nor does it indicate a relevant date within the time frame of the legislative actions concerning repeal and reinstatement. The opinion of the appellate court (Glidden v. Farmers Automobile Insurance Association (1973), 11 Ill. App. 3d 81, 296 N.E.2d 84) only discloses that the injury occurred in August 1970. It appears that for purposes of the Glidden opinion there may have been a hiatus in the operation of the provision of the Code.

In the light of the legislative action in making mandatory a requirement of uninsured motorist coverage and the subsequent amendments some four years later to grant a right of subrogation to the insurer, it is reasonable to conclude that the legislature was creating public policy in the matter of subrogation as to payments made by reason of that coverage.

In Podgorski, a secondary issue involved the language and effect of the subrogation clause in the particular insurance policy involved. Plaintiff here asserts that in this case the insurance policy was not introduced at trial and therefore this court should find that the subrogation clause is unenforceable. The insurance policy was not proffered by State Farm at trial because no challenge was made by plaintiff at trial to State Farm’s right to subrogation pursuant to policy terms, but the challenge was solely based on the public policy involved in allowing subrogation in this type of case. Further, by signing of the trust agreement, plaintiff acknowledged State Farm’s right to subrogation under the terms of the insurance policy.

The secotid issue raised in this appeal is whether the settlement agreed to by the parties at the pretrial conference was final and binding upon the parties in the absence of a showing of fraud or mistake. State Farm asserts that at the February 1980 pretrial conference the parties agreed upon a settlement which included the insurance company, as memorialized by the docket entry on that date, and that that agreement settled any dispute as to whether State Farm would have been entitled to subrogation had the claim been litigated. The plaintiff asserts that the settlement agreement was tentative only as it was subject to approval by the probate court, and also subject to the signing of written releases.

We have noted the language of the order of the probate court placed in the record and that such order bears a stamp suggesting drafting by plaintiff’s attorney, and conclude that, upon its face, that order requires no further action in the probate court relating to the assignment of rights for purposes of subrogation.

Plaintiff primarily relies on Vece v. De Biase (1964), 46 Ill. App. 2d 248, 197 N.E.2d 79; to support her position. In Vece, an attorney for the executor of the estate informed the court, in a will contest proceeding, that a settlement had been reached and the case was then continued for settlement. At the next court appearance the estate’s attorney told the court that the Internal Revenue Service was about to file a large claim against the estate, and that therefore the offer to settle was withdrawn. Plaintiff requested, and the court entered, judgment on the settlement which the appellate court subsequently reversed, finding that the settlement agreement had not been finalized. However, the appellate court decision was based largely upon the fact that the Internal Revenue Service claim constituted a material mistake of fact. Even final settlements can be set aside upon a showing of fraud or mistake. Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429.

Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 356 N.E.2d 837, presents a situation similar to that in the case at bar. In Sheffield Poly-Glaz, Inc., all of the attorneys for the parties to the litigation reported to the court that a particular settlement was acceptable to all of the parties. The trial court ordered the parties to draw up an order to dispose of the litigation, but prior to the entry of the order, counsel for the appellant learned from the appellant that he had not understood the terms of the settlement agreement. The attorney then returned to court and told the court that his client found the settlement unacceptable. The trial court ordered performance of the settlement agreement, and the appellate court affirmed, stating:

“Settlements are to be encouraged and given full force and effect. They should not be set aside absent a showing of fraud or mistake. (Zamouski v. Gerrard (2nd Dist. 1971), 1 Ill. App. 3d 890, 895, 275 N.E.2d 429.) Such agreements are recognized by the courts where they are based on sufficient consideration and the parties have met on equal terms. (11 Ill. L. & Pr. Compromise & Settlement §2 (1955).) A settlement based on an oral agreement may be enforced. (Zamouski, at 895; Theatre Time, at 174.) These agreements are binding so long as there is clearly an offer and acceptance to compromise, and there is a meeting of the minds as to the terms of the agreement. 11 Ill. L. & Pr. Compromise & Settlement §3 (1955); 15 Am. Jur. 2d Compromise & Settlement §6 (1964).” (42 Ill. App. 3d 865, 868-69, 356 N.E.2d 837, 840.)

That court also noted that the written order which was to be entered by the parties did not formalize the agreement, but merely disposed of the litigation.

In the case at bar, the parties agreed upon a settlement, and approval of the probate court had been obtained. The settlement was final, and the parties were bound by the agreement they had made.

While settlement agreements can be set aside because of mistake, the “mistake” which occurred in this case cannot serve as a basis for setting aside the agreement. Subsequent to entry into the settlement agreement, the attorney for plaintiff adopted a conclusion that case law provided no subrogation right on the part of State Farm. The discovery of a new legal theory by an attorney, to advance his client’s case, does not constitute a mistake on which basis a settlement agreement can be set aside. (Holbrook v. Tomlinson (1922), 304 Ill. 579, 136 N.E. 745.) Therefore, we hold that the settlement agreement between the parties was final and binding upon the parties.

Upon denial of appellant’s petition for rehearing we modify the opinion to state that State Farm is entitled to $3000 from the proceeds of settlement as agreed between the parties.

For such reasons, the order of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed.

Reversed and remanded with directions.

MILLS and LONDRIGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LONDRIGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN EDWARD JONES, Defendant-Appellee.
    Fourth District
    No. 16980
    Opinion filed December 15, 1981.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Larry Wechter, both of State’s Attorneys Appellate Service Commission, of counsel), for the People. .
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE LONDRIGAN

delivered the opinion of the court:

The State appeals the trial court’s order suppressing evidence that had been seized as a result of two searches of the defendant’s car. Besides the merits of that order this appeal also raises a jurisdictional question regarding the steps taken by the State to present this issue here for review.

I

People v. Young (1980), 82 Ill. 2d 234, 412 N.E.2d 501, requires that the State, as a prerequisite to taking an interlocutory appeal of an order suppressing evidence, certify to the trial court that the suppression will substantially impair prosecution of the defendant. Several months after filing its notice of appeal the State moved in this court to supplement the record with a certificate of impairment signed by the McLean County state’s attorney. The defendant objected to this motion, arguing that the certificate is jurisdictional and must be entered in the trial court record before a notice of appeal is filed. We ordered that the question be taken with the case.

Young involved reports made to police by a person who had been in an auto accident. The defendant, charged with leaving the scene of an accident and driving too fast for conditions, sought to suppress his statements under section 11 — 401(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95M, par. 11 — 401(b)), which requires drivers who have had an accident involving personal injury or death to report certain details to the police; the last sentence of (b) prohibits the use of these reports in prosecutions for leaving the scene. The trial court granted the defendant’s pretrial motion to suppress. The appellate court dismissed the State’s appeal, concluding that Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) permits appeals only from evidence derived from illegal searches and seizures and involuntary confessions. The supreme court framed the question in the following way:

“The issue before us is whether our Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)) permits the State to appeal from a pretrial order excluding evidence on grounds other than that the evidence was obtained as the result of an unlawful search and seizure or an involuntary confession.” (82 Ill. 2d 234, 236, 412 N.E.2d 501, 502.)

The short answer to this question is “yes.” First the court observed that “[t]he extent of the State’s ability to take an appeal in criminal cases has expanded dramatically in the last 50 years” (82 Ill. 2d 234, 238, 412 N.E.2d 501, 503) and summarized the expansion in the sorts of cases that the State may appeal and the development of the court’s rulemaking authority. Supreme Court Rule 604(a)(1) lists the types of adverse rulings that the State may appeal:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results,in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” (73 Ill. 2d R. 604(a)(1).)

Young held “that Rule 604(a)(1) allows an interlocutory appeal by the State of a pretrial suppression order whenever the prosecutor certifies to the trial court that the suppression substantially impairs the State’s ability to prosecute the case.” (82 Ill. 2d 234, 247, 412 N.E.2d 501, 507.) This requirement was “effective immediately” except for cases already on appeal. 82 Ill. 2d 234, 248-49, 412 N.E.2d 501, 508.

The State first argues that it need not certify substantial impairment when the trial court decides to suppress the evidence because it was obtained through an involuntary confession or an unlawful search or seizure — that is, in those cases that the State has traditionally been allowed to appeal. The State would limit the certification requirement to cases when the evidence has been suppressed for other, nontraditional reasons, such as that involved in Young.

Young does not make this distinction, however. Young first describes how the appellate court has erroneously limited the cases appealable by the State under Supreme Court Rule 604 and then discusses the policy reasons supporting the broader view of which suppression orders are properly appealable. Both parts of the opinion indicate that the court is correcting a misunderstanding and not creating a new rule applicable only to newly permitted appeals. On its face, Rule 604(a)(1) allows appeals from all orders barring the use of evidence, but the decisional law has not accepted this view; appellate court opinions have limited appeals by the State to cases when (1) the reason for suppression is to deter police misconduct, (2) the order will “block” the prosecution, (3) the order is based on constitutional reasons, or (4) the evidence was obtained by an illegal search or seizure or an involuntary confession (82 Ill. 2d 234, 240, 412 N.E.2d 501, 504). People v. Van De Rostyne (1976), 63 Ill. 2d 364, 349 N.E.2d 16, provided the impetus for the fourth approach. In Van De Rostyne the trial court granted the defendant’s “motion to suppress” the results of a breathalyzer test during a trial for driving while intoxicated. Young explained that in dictum there the court had said that the label “ ‘motion to suppress’ * * * was intended only to reach illegally obtained evidence and that Rule 604 should not be interpreted to allow an interlocutory appeal from every ruling excluding evidence offered by the prosecution.” (82 Ill. 2d 234, 241, 412 N.E.2d 501, 504.) Some appellate opinions used Van De Rostyne to limit orders appealable by the State to those suppressing evidence derived from illegal searches and seizures and involuntary confessions, although not all cases interpreted that decision so narrowly.

Van De Rostyne relied in part on People v. Thady (1971), 133 Ill. App. 2d 795, 270 N.E.2d 861, which underestimated the supreme court’s rulemaking powers. Thady limited Rule 604(a)(1) to matters made appealable by the legislature, specifically sections 114 — 11 and 114 — 12 of the Code of Criminal Procedure of 1963, dealing with involuntary confessions and illegal searches and seizures respectively (Ill. Rev. Stat. 1969, ch. 38, pars. 114—11, 114—12). See also the discussion of Thady in People v. Flatt (1980), 82 Ill. 2d 250, 258-60, 412 N.E.2d 509, 513-14, filed the same day as Young.

This summary indicates that Young is correcting a misunderstanding and announcing a rule applicable to all suppression orders. Decisions during the 1970s in effect ignored the “bare language” of Rule 604(a)(1) and disregarded the scope of the supreme court’s rulemaking power.

In the second section of Young, 82 Ill. 2d 234, 243-47, 412 N.E.2d 501, 505-07, the court gives policy reasons to support its departure from tradition. Although interlocutory appeals may increase the time needed to conclude a prosecution and may disrupt “the trial process,” they help to correct errors occurring in the trial court and increase the amount of evidence that may be used. These concerns ultimately serve society’s interests by insuring that a criminal defendant is faced with all the available admissible evidence and by preventing the proliferation of trial error.

This applies with equal force to the groups of suppression orders that traditionally have been appealable. Here, too, Young is intent on correcting a misunderstanding rather than creating a new rule of only limited scope. .

Thus, the State must certify impairment whenever it appeals a suppression order. In permitting the State to appeal suppression orders, Rule 604(a)(1) does not refer to the reason for the suppression or separate the orders into favored and disfavored categories; in explicating the rule Young treats all suppression orders alike and does not suggest that the State must file a certificate only in certain cases. We therefore conclude that a certificate of impairment is necessary here.

The next question concerns the timing of the State’s certificate here; the State argues that it may file one even after it has filed its notice of appeal. The State relies on Supreme Court Rule 606(a) (73 Ill. 2d R. 606(a)), which provides in part, “No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional.” This states the effect of a notice of appeal from the standpoint of the appellate court. The defendant counters that filing a notice of appeal divests the trial court of jurisdiction over the case (Brehm v. Piotrowski (1951), 409 Ill. 87, 90, 98 N.E.2d 725, 727), expressing the effect of a notice of appeal on a trial court. The defendant concludes that the certificate may not be filed in this court as a supplement to the record; Young directs the State to file its certificates in the trial court.

The State points out that the Federal provision analogous to the one in Young has not been construed as a jurisdictional requirement. Young invites the analogy by referring to the Criminal Appeals Act (18 U.S.C. §3731 (1976)) as evidence of the “practicality” of the certification requirement. The Federal statute permits the government to appeal a pretrial order suppressing evidence “if the United States Attorney certifies to the district court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” The Federal law has not been construed as a jurisdictional step, and the Federal government may file its certificate even after it has perfected the appeal from the district court. (United States v. Fleming (8th Cir. 1977), 566 F.2d 623.) The defendant argues that the analogy to the Federal procedure is imperfect because the intent in Young is to balance the defendant’s right to swift prosecution against the State’s right to appeal suppression orders. Yet Young discusses those concerns not to impose limits on the State’s decision to appeal orders but instead to show that the holding rests in part on policy grounds. Young does not balance anything, because it holds that the State may always appeal a pretrial order excluding evidence.

Illinois practice also supports the conclusion that the certificate of impairment is not a jurisdictional step and may be filed after perfection of the appeal. The rule that filing a notice of appeal divests a trial court of jurisdiction is invoked when a party tardily requests a trial court to do something that would affect the posture of the case, such as permitting amendment of the pleadings (Brehm) or granting a post-trial motion (Elliott v. Willis (1980), 89 Ill. App. 3d 1144, 412 N.E.2d 638, appeal allowed (1981), 83 Ill. 2d 570). We conclude that because the trial judge has no authority under Young to reject the certificate, the State may file it in this court as a supplement to the record. The absence of the certificate is a material omission in the trial court record within the meaning of Supreme Court Rule 329 (73 Ill. 2d R. 329). That rule provides that “[mjaterial omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court”; Supreme Court Rule 612(g) (73 Ill. 2d R. 612(g)) makes it applicable to the record in criminal appeals. (See also Ray v. Winter (1977), 67 Ill. 2d 296, 367 N.E.2d 678 (failure to certify trial court record is not a jurisdictional defect); People v. Marbly (1980), 85 Ill. App. 3d 935, 407 N.E.2d 721 (failure to file report of proceeding within given time limit is not jurisdictional).) The certificate of impairment reflects merely the State’s decision to appeal the suppression order and is properly considered an omission in the record. See also our discussion of this same issue in People v. Norris (1981), 101 Ill. App. 3d 664.

II

The State attacks the merits of the suppression order. The defendant was charged with possession of burglary tools and attempted theft; before trial he moved to suppress evidence, boltcutters, which the police had seized after searching the trunk of his car twice. The first search occurred when the police stopped the defendant in his car; they saw the boltcutters then but did not take them until later, while the car was being held at a towing yard after the police had taken into custody the defendant and the passenger in his car. The police did not have a warrant for either of the searches.

The trial judge granted the defendant’s motion to suppress the evidence, concluding that the searches were not justified by exigent circumstances, probable cause, or consent and that a warrant was necessary for the second search. Here on appeal the State concedes that the defendant did not consent to the searches.

Officers Livingston and Scott of the Bloomington Police Department went to the American Trio store in Bloomington several minutes after 11 p.m., October 17,1979, in response to a ringing burglar alarm. Each of the officers was driving his own car. Livingston saw a gold Cadillac in the parking lot of a ÑAPA store, two buildings away from American Trio; the trunk of the car was open. Livingston proceeded to NAPA to investigate; as he passed American Trio he heard an alarm ringing but noticed nothing unusual and did not see any cars parked there. By the time Livingston reached NAPA the Cadillac had already left, and he saw it traveling away from him on another street. Livingston stopped the Cadillac at the next intersection, and Officer Scott arrived soon after that. The defendant explained that he had stopped in the NAPA lot to urinate and pointed to a wet spot on one of the wheels of the car to confirm this; Officer Livingston testified at the hearing that he did not see any moisture on the wheel. Livingston asked Jones to open the trunk. According to Livingston, Jones silently complied. As Jones fiddled with the lock Livingston said that the trunk could be examined “later” if it would not come open then. Jones testified that he opened the trunk because Livingston told him that the police would open it themselves if he did not do it there. After seeing boltcutters in the trunk of the car Scott went to the American Trio store, where he saw that the padlock on the door of a storage trailer parked behind the store had been cut; the door was not open, however. Scott returned to the intersection where the defendant’s car had been stopped, and the defendant and Young, the passenger in his car, were then arrested and taken to the Bloomington police station. The car was towed away.

The defendant argues that the State conceded at the suppression hearing that the police did not have probable cause to search the defendant’s car. Although the State relied heavily on the defendant’s supposed consent to the first search to support the admission of the evidence, we do not read the transcript as narrowly as the defendant does. The trial court uttered a finding with regard to possible cause, and we do not construe it to be a gratuitous comment or part of a catalog of conceded and waived issues.

The State argues that the police had probable cause to believe that the defendant had committed a crime and that the car contained contraband of some sort. A warrantless search of a vehicle may be justified when the same set of circumstances would not justify the warrantless search of a home. The Supreme Court has based this “automobile exception” to the warrant requirement (Chambers v. Maroney (1970), 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Carroll v. United States (1925), 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280) on two grounds: that vehicles by their nature are mobile and may be removed from the jurisdiction before police would be able to obtain a warrant and that the expectation of privacy in a vehicle is less than that in a home (Arkansas v. Sanders (1979), 442 U.S. 753, 761, 61 L. Ed. 2d 235, 243, 99 S. Ct. 2586, 2591). Thus, when police stop a car on a street they may search it if “they have probable cause to believe it contains contraband or evidence of a crime.” (Sanders, 442 U.S. 753, 760, 61 L. Ed. 2d 235, 242, 99 S. Ct. 2586, 2591.) The court has cautioned, though, that

e e the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search. As Mr. Justice White wrote for the Court in Chambers v. Maroney, [citation]: ‘In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.’ ” (Almeida-Sanchez v. United States (1973), 413 U.S. 266, 269-70, 37 L. Ed. 2d 596, 600-01, 93 S. Ct. 2535, 2537-38.)

And probable cause alone will not justify every warrantless search of a car. Almeida-Sanchez; Chambers.

When Officer Livingston stopped the Cadillac he knew only that the car had been parked several hundred feet from a ringing burglar alarm and that someone had run up to the open trunk. Livingston testified that the defendant speeded away from the NAPA lot and that no moisture appeared on any of the Cadillac’s wheels. Livingston did not, however, ticket the defendant for speeding. The defendant testified that he was not speeding and explained that he had parked at NAPA to urinate. Officer Scott did not believe that at the time of the first search they had probable cause. People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89, found such a concession dispositive when made by the officer who had conducted the search. In this case Livingston searched the car and Scott was a backup. Given this evidence, the trial court’s decision is clearly not contrary to the manifest weight of the evidence. People v. Williams (1974), 57 Ill. 2d 239, 311 N.E.2d 681.

After Officer Scott returned from the American Trio Store the defendant and Young were arrested and taken to the police station. The car was towed from the scene and held at the towing company’s storage yard, where Scott searched it by 2 a.m. the next day; he seized the boltcutters then. The State first argues that if the police had probable cause for the first search they had probable cause for the second. Law enforcement officers with probable cause to search a vehicle on the road may in certain circumstances delay the intrusion until the vehicle is in police custody. (Colorado v. Bannister (1980), 449 U.S. 1, 66 L. Ed. 2d 1, 101 S. Ct. 42 (per curiam); Texas v. White (1975), 423 U.S. 67, 46 L. Ed. 2d 209, 96 S. Ct. 304 (per curiam); Chambers.) The State would extend this rule to permit multiple searches: one when the car is stopped and others after the car is under police control. We need not decide this question, however, for we have decided that the first search was invalid. The second one must therefore find an independent justification.

Impounding a vehicle temporarily ends its mobility and with that one of the two bases for the Carroll doctrine. Police may conduct inventory, but not investigatory, searches of impounded vehicles. (South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092; Cady v. Dombrowski (1973), 413 U.S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523.) In this case neither Scott nor Livingston testified that inventory searches are a customary procedure in Bloomington or that an inventory search of the defendant’s car was necessary (cf. Opperman (defendant’s illegally parked car towed to impoundment lot where thieves had previously broken into two locked cars; officer noticed a watch on the dashboard and decided to inventory the contents of the car and remove valuables) and Cady (police knew that hospitalized driver of impounded car was a police officer and believed that his car therefore contained a gun)). The State also has not shown that the defendant’s car had been forfeited as evidence. Cf. Cooper v. California (1967), 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788 (car forfeited as evidence under State narcotics law).

We therefore grant the State’s motion to file the certificate of impairment in this court and affirm the trial court’s decision to suppress the evidence.

Affirmed.

GREEN, P. J., and MILLS, J., concur.


author: JUSTICE ALLOY Mr. JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY JONES et al., Defendants-Appellants.
    Fourth District
    No. 17120
    Opinion filed December 15, 1981.
    STOUDER, J., specially concurring.
    Daniel D. Yuhas and James G. Woodward, both of State Appellate Defender’s Office, of Springfield, for appellants.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The defendants, Gary Jones and Ronald Oliver, were each charged with three counts of armed robbery arising from events which occurred in Springfield between October 6 and 12, 1980. Following appointment of separate counsel, the defendants moved to suppress admission of physical evidence seized, and statements made, at the time of their arrest, contending that the evidence resulted from an illegal arrest. The circuit court denied their motions, and the causes proceeded to a consolidated trial. There, the circuit court of Sangamon County, sitting without a jury, found each of the defendants guilty on all three counts. The court subsequently sentenced each defendant to three concurrent terms of 6 years’ imprisonment. They now appeal from the denial of their motions to suppress.

At approximately 8:45 p.m., on October 12, 1980, Springfield police officers John Tolley and Larry Tumulty received a report of an armed robbery at a Taco Gringo restaurant on 31st Street. A lone gunman had just held up the restaurant and had taken an unspecified amount of cash. The police radio dispatch described the suspect as a thin, black male wearing a black jacket and a gray turtleneck sweater with a red stripe across the chest. The dispatch also said the suspect had left the scene on foot within the past 10 minutes and had headed north. With Tolley driving the unmarked patrol car, the officers parked in a used car lot at the corner of Elm and Cook Streets, which is approximately one mile from the restaurant. Tolley believed that this location gave the officers an excellent opportunity to observe the suspect if he was driving because the intersection was well lighted and well traveled. After 5 minutes had elapsed and several cars had driven past the officers’ position, they observed a blue and white Grand Prix traveling westbound on Cook Street. Both officers testified that the car was not then violating any traffic ordinances. The car contained two black males. The officers clearly saw the car’s passenger, who wore a gray turtleneck sweater with a red stripe across the chest. The passenger had turned around and peered intently out the rear window as the car passed the officers’ unmarked patrol car. Tolley decided to pursue the car, and while doing so, he requested the police dispatcher to repeat the description of the robbery suspect. The dispatcher again informed the officers that the suspect was a thin, black male, wearing a black jacket and a gray turtleneck sweater with a red stripe across the chest. Upon hearing the reported information, the officers concluded that the passenger matched the description of the suspect, whereupon they proceeded to stop the suspect’s car. The driver, defendant Oliver, and the passenger, defendant Jones, exited from their car and awaited the officers. Tolley ordered Oliver to produce some identification and then ordered him to place his hands on the car. Without being asked any questions, Oliver stated, “Why are you arresting me, I didn’t go in with him.” Following this statement, Jones said, “You got me, I did it.” Without yet entering the defendants’ car, the officers looked inside and saw money and a black jacket with a handgun in its holster protruding from a jacket pocket lying on the floor. The officers then arrested the defendants, informed them of their Miranda rights, and took them to the police station. Neither defendant elected to have counsel present during the interrogation. Jones admitted to robbing the Taco Gringo restaurant at gunpoint. Oliver admitted he waited in his car a short distance from the restaurant and picked up Jones following the robbery. The defendants also confessed to having committed armed robberies on October 6 and October 11, 1980. One day later, an employee of Taco Gringo identified Jones in a police lineup as the person who had robbed the restaurant on October 12.

On appeal, the defendants contend that the circuit court erred in denying their motions to suppress physical evidence and confessions obtained following their arrest because the arresting officers lacked probable cause to believe that the defendants had committed an offense. In response, the State does not directly refute this contention, but argues that the police properly conducted a valid investigatory stop pursuant to Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

Our law is well established that a police officer may briefly detain a suspect for the purpose of investigating possible criminal behavior, even though the officer lacks probable cause to arrest that suspect. That decision to halt a suspect for temporary questioning must be founded upon specific, articulable facts known to the officer, combined with rational inferences therefrom. Because the degree of intrusion into the suspect’s fourth amendment rights is temporary and therefore less significant than that of an arrest, the grounds needed to justify a forcible investigatory stop are less rigorous than the “more-probable-than-not” standard used to validate a full-fledged arrest. Although the supreme court has avoided directly defining what grounds are needed to justify a temporary seizure for investigation, such a stop will generally be upheld where the officer believes upon objective reflection that there exists a substantial possibility that the suspect has committed or is about to commit a criminal offense. One commentator has described the standard as follows:

“[A] temporary seizure for investigation may be made of a particular person absent that degree of focusing upon him as an individual which would be needed to arrest. That is, a person may be characterized as a ‘suspect’ in the sense of being a legitimate object of a stopping for investigation even though the facts which direct attention to him do not focus upon him to the exclusion of other known or unknown persons.” 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §9.3, at 68 (1978).

In applying this standard to the instant case, we find that the information contained in the police radio dispatch, along with the reasonable inferences drawn therefrom, and the officers’ observation of the defendants’ conduct sufficiently reduced the probability that persons other than the defendants had committed the armed robbery. Therefore, Officers Tolley and Tumulty acted upon the substantial possibility that the defendants were the offenders and lawfully stopped them for brief questioning. Of course, after the defendants had made their unsolicited, incriminating statements and after the officers had noticed the handgun and money in the car, the officers had probable cause to arrest the defendants.

First, the defendant Jones’ gray turtleneck sweater was identical to the uniquely patterned sweater worn by the robbery suspect. Such similarity in apparel, in addition to a description of the suspect’s race and sex (People v. Grice (1980), 87 Ill. App. 3d 718, 410 N.E.2d 209), narrows considerably the population of potential suspects. (See District of Columbia v. M.M. (D.C. App. 1979), 407 A.2d 698; People v. Harris (1975), 15 Cal. 3d 384, 540 P.2d 632, 124 Cal. Rptr. 536.) Although the radio dispatch stated that the suspect also wore a black jacket while the defendant Jones wore no jacket when the officers made their stop, such a variance did not substantially detract from their identification bécause it was reasonable to assume that the suspect might have removed his coat to avoid detection. (See 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment §9.3(d)(1), at 88-89 (1978).) Likewise, the officers reasonably assumed that the suspect, who was reported to have left the scene alone and on foot, had arranged for use of an automobile and driver. Given our society’s propensity for the automobile, such an assumption was eminently reasonable. (See Grice.) Moreover, to hold that the officers were unable to effect an investigatory stop of two or more individuals merely because the radio dispatch reported that a lone gunman had robbed the restaurant runs contrary to common sense and the case law. See People v. Drummer (1980), 81 Ill. App. 3d 626, 402 N.E.2d 307; Franklin v. State (Fla. App. 1979), 374 So. 2d 1151; Commonwealth v. Johnson (1978), 6 Mass. App. 944, 382 N.E.2d 1124.

In addition to the similarity between Jones and the description of the suspect, the officers became alerted to the car upon observing Jones’ suspicious conduct. They reasonably concluded that Jones’ prolonged peering through the rear window looked as though he was in apprehension of being followed. (See Commonwealth.) Although such furtive conduct in and of itself would not have supported an investigatory stop in the instant case, the conduct did strengthen the officers’ reasonably based suspicions that the car contained the suspect.

Finally, the propinquity of the stop in relation to the time and place of the robbery increased the probability that the car contained the suspect. In less than 15 minutes from the time that the suspect left the Taco Gringo restaurant on foot, the officers, who were located approximately one mile from the scene, observed a passenger in a car wearing apparel matching that of the suspect. Given the time necessary for Jones to walk to Oliver and his waiting car, the stop occurred well within the range of possible flight.

The defendant Oliver also contends that, even assuming the officers had sufficient cause to stop the car to question Jones, they were unjustified in questioning and arresting him. Admittedly, mere association with a suspect is insufficient cause to stop an individual for investigation. Here, however, the officers acted on more than association. Upon noticing that Jones matched the description of the robbery suspect, the officers reasonably assumed that the driver, Oliver, was helping Jones avoid apprehension. Their suspicions were confirmed when Oliver asked why he was being arrested when he waited outside while Jones had entered the restaurant. Based upon this admission indicating that Oliver knew of the robbery, the officers, who had lawfully stopped the car and questioned Oliver, had probable cause to arrest both Jones and Oliver.

For the foregoing reasons, we affirm the judgments of conviction entered in the circuit court of Sangamon County.

Affirmed.

HEIPLE, J., concurs.

Mr. JUSTICE STOUDER,

specially concurring:

I concur in the result reached by the majority but for different reasons. I think the efforts to distinguish between arrests and “Terry stops” as not being arrests depend on distinctions without a difference. Much judicial labor is being invested in answering the question: When is an arrest not an arrest? The answer is, of course, an arrest is not an arrest when it is a Terry stop. Another way of answering the question is to say a person is arrested only a little. Because articulable suspicion provides a much larger and vaguer umbrella under which to accomplish the same result, prosecutors feel no useful purpose is served in talking about arrests for probable cause. This practice is understandable.

In the instant case, accepting the testimony of the police officers as credible, it seems to me that they had probable cause to make the arrest initially of Jones and then of Oliver. The description of the robber and his wearing apparel was quite specific, and if the officers were able to identify Jones from this description as they said they could, then probable cause existed for his arrest. I therefore would affirm the convictions for these reasons.


author: JUSTICE WEBBER JUSTICE LONDRIGAN,

text:
    LINDA JEAN KRABEL, Plaintiff-Appellee, v. JOSEPH LAWRENCE KRABEL, Defendant-Appellant.
    Fourth District
    No. 17157
    Opinion filed December 18, 1981.
    LONDRIGAN, J., dissenting.
    James T. Friedman, of Schiff, Hardin & Waite, and Errol Zavett, of Ehrlich, Bundesen & Zavett, both of Chicago, and Wayne S. Jones, P. C., of Paris, for appellant.
    Laurence W. Grabb, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellee.
   JUSTICE WEBBER

delivered the opinion of the court:

The marriage of the parties was dissolved in 1977 in the circuit court of Coles County. Custody of two minor children was awarded to the petitioner (Linda) with rights of visitation in the respondent (Joseph). In August 1980, Joseph filed a petition for change of custody based upon Linda’s cohabitation with her paramour. After extensive evidentiary hearings, the trial court denied the prayer of the petition, and this appeal followed.

The resolution of this case presented difficult questions for the trial court and even more complex ones for this court, since it falls into an unresolved area between the prior authorities of Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, and Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300.

The evidence is clear that Linda was engaged in an illicit liaison, although, unlike Jarrett, her suitor did not live in her home. His arrival was generally in the early evening and his departure in the very early morning about 3 a.m. These visits were on a fairly regular basis of two to three times per week. The children were at home during such times. On weekends when the children were visiting with their father, Linda went to her suitor’s home, about 45 miles away, and spent the weekends there. There was also some evidence that on a few occasions she had taken the children with her to his home.

One of Linda’s principal contentions is that under the circumstances just outlined and because of the tender ages of the children (6 and 8 years at the time of hearing), the affair is discreet, the children would be unaware of its nature, and there is no adverse effect upon them. She distinguishes Jarrett wherein the mother was quite open with the children regarding her relationship with her companion.

On the other hand, there is also evidence that during visitation periods Joseph has specifically called the children’s attention to their mother’s conduct, has questioned them at length about her activities, and has inculcated in them that what she was doing was wrong. A clergyman who testified on Joseph’s behalf described him as “godly.” In its excellent memorandum opinion, the trial court condemned Joseph’s conduct in this regard and indicated that the children would probably not have been aware of Linda’s relationship except for Joseph’s prompting.

There is thus presented the nettlesome question as to whether one seeking a change of custody based upon the misbehavior of the custodial parent may use as a predicate therefor his own misbehavior in causing emotional trauma in the children. There was evidence in this regard of such trauma and its cause.

Joseph appears to be extremely selective in his choice of the elements in the Decalogue. It may well be asked whether one is moral by being very sanctimonious about the carnal aspects of that great pillar of ethical conduct, while at the same time teaching his children to dishonor their mother. There is no indication that this attitude would change in the event of change of custody to him.

Thus the dilemma: each parent, otherwise fit, but each guilty of breaches of fundamental morality, and as always, the innocent victims, the children, are the principal sufferers.

The Jarrett decision was recently analyzed and discussed at length in Brandt v. Brandt (1981), 99 Ill. App. 3d 1089. We agree that Jarrett did not proclaim a per se rule, and any further comment by us would be only epexegetical. The instant case is not parallel to Brandt on the facts in that the Brandt children were of sufficient age as to make a studied selection under the supervision of the trial judge. We do find the following language from Jarrett particularly appropriate:

“It is true that, as Jacqueline argues, the courts have not denied custody to every parent who has violated the community’s moral standards, nor do we now intimate a different rule. Rather than mechanically denying custody in every such instance, the courts of this State appraise the moral example currently provided and the example which may be expected by the parent in the future. We held in Nye v. Nye (1952), 411 Ill. 408, 415, that past moral indiscretions of a parent are not sufficient grounds for denying custody if the parent’s present conduct establishes the improbability of such lapses in the future. This rule focuses the trial court’s attention on the moral values which the parent is actually demonstrating to the children.” 78 Ill. 2d 337, 347, 400 N.E.2d 421, 424.

The solution to the instant case, in our opinion, lies in determining which course of improper conduct by the parents is more susceptible of correction. We believe it is that of Linda.

There was an indication in the record that she planned to marry her paramour and in his order the learned trial judge stated that in the event she did not do so, and if the relationship continued as in the past, he would not hesitate to reconsider the question of custody. If she has in fact married, or alternatively, broken off the illicit affair, custody will be governed by the rule of Nye, as set forth in Jarrett, and of Rippon v. Rippon (1978), 64 Ill. App. 3d 465, 381 N.E.2d 70, also commented upon in Jarrett. On the other hand, if no change has taken place, Jarrett must prevail. We do not believe that any feasible means exist whereby Joseph’s attitude may be modified, or even attenuated.

It remains to be decided what disposition is to be made of this case in this court. An outright reversal would reward Joseph for defaming and denigrating Linda to the children. An outright affirmance would allow Linda to escape the force of the Jarrett rationale by indicating only an intent to mend her ways and would invoke the two-year waiting period mandated by section 610 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 610), even though we do not believe that the trial court’s decision was against the manifest weight of the evidence nor did it make any error of law.

Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) permits this court to * * make any order * * * that the case may require.” We therefore vacate the order of the trial court and remand the cause with directions to consider events which have occurred since its entry. If Linda has married, or has broken off her liaison, and her present conduct establishes the improbability of such lapses in the future, then the court should re-enter the order appealed from, with such safeguards against the conduct of Joseph as may seem workable, including, if necessary, suspension of rights of visitation. On the other hand, if no reformation has occurred on Linda’s part, the court should enter a new order awarding custody to Joseph, subject to his agreement to voice his complaints about Linda in court only. Under either order, the court may consider judicial supervision pursuant to the provisions of section 608(b) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1979, ch. 40, par. 608(b).

Order vacated and cause remanded with directions.

TRAPP, J., concurs.

JUSTICE LONDRIGAN,

dissenting:

I would affirm the order of the trial court.

Sexual liaisons are a factor to be considered with all the surrounding circumstances and not the factor. The trial court in its opinion set out at length its factual findings, distinguished this case from Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, and correctly found Rippon v. Rippon (1978), 64 Ill. App. 3d 465, 381 N.E.2d 70, to apply. Rippon stated:

“Although the respondent admitted having sexual intercourse with Robbins before she married him and with her present boyfriend after divorcing Robbins, indulgence in moral indiscretions alone is not grounds for a change of custody where the children are leading a normal life. [Citation.] * * ° Only when an open adulterous relationship exists with no possibility of marriage, as when the paramour is and remains married to another woman, is there sufficient grounds to remove custody from the mother.” 64 Ill. App. 3d 465, 468, 381 N.E.2d 70, 73.

The trial court herein stated:

“Section 610 of Chapter 40 indicates the public policy established by this section is against a change of custody unless there is a strong showing that a change is necessary for the best interest of the children. 6 * ”
The Court finds that Petitioner has failed to prove [that] a modification of the custody provisions of the decree of divorce is warranted at this time. The Court further finds that a change of custody would not serve the best interests of the children. The harm resulting to the children by a change of custody would be far greater, considering their ages, than allowing them to remain with their present custodian.”

The majority opinion herein held that the trial court’s decision was not against the manifest weight of the evidence nor did it make any error of law.


author: JUSTICE MILLS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HAROLD R. SARVER, Defendant-Appellant.
    Fourth District
    No. 17182
    Opinion filed December 18, 1981.
    James L. Ayers, of Monticello, for appellant.
    Hugh Finson, State’s Attorney, of Monticello, for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Traffic complaint filed.

Then an information was also filed in the same cause.

Was the information an amendment of the citation or a superseding new charging instrument?

It was a new, substituted charge.

We affirm the conviction.

Sarver was issued a traffic ticket charging him with driving while his license was suspended, an offense that is committed only if a person has been driving on a public highway. (Ill. Rev. Stat. 1979, ch. 95M, par. 6—303(a); People v. Kozak (1970), 130 Ill. App. 2d 334, 264 N.E.2d 896.) The citation form includes a printed statement “Upon a public highway, namely at (location),” and this statement is followed by a blank, upon which the arresting officer wrote, “Monticello (National Bank Parking lot).” Sarver moved to dismiss on the ground that this parking lot is not a public highway.

The State then filed an information, which alleged, inter alia, that Sarver had driven his vehicle on Charter Street in Monticello. Defendant objected to the substitution of the information for the traffic citation as the charging instrument. The trial court denied defendant’s motion to dismiss, but the record contains no ruling on his objection to filing the information. At oral argument, however, both parties agreed that defendant was tried upon the information, not the citation.

On appeal, defendant argues that the trial court erred in allowing the original charging instrument to be amended because changing the allegation as to the place where defendant was driving was an amendment of substance which is not allowed under section 111—5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111—5), which allows an amendment only to correct a “formal defect.” (People v. Pettus (1980), 84 Ill. App. 3d 390, 405 N.E.2d 489.) The State counters this argument with the contention that the allegation as to the parking lot was surplusage, creating a formal defect which may be corrected by amendment. Ill. Rev. Stat. 1979, ch. 38, par. 111—5(d).

Both parties, however, have overlooked the true effect of filing the information. The State did not “amend” the citation; it filed the information in substitution of the traffic ticket. An amendment is that which alters “by modification, deletion, or addition.” (Black’s Law Dictionary 74 (5th ed. 1979).) By definition, an amendment is something which incorporates by reference some or all of a previously filed document. This the information did not do. It in no way relied upon the citation for its force, validity, or vitality. It supplanted and superseded the citation, stated a new charge, and was itself a complete charging instrument. Under these circumstances, section 111 — 5—dealing with amendments to charging instruments — is inapplicable, and the parties’ argument as to whether a formal or substantive amendment occurred does not concern us.

We also note that the State did not move to file the information. Had the information been intended as an amendment of the citation, the State would have been required to seek leave of court to file it. (See Ill. Rev. Stat. 1979, ch. 38, par. 111—5.) Since no motion to amend was filed, we can only presume that the State looked upon the information as a substitute for, and not an amendment to, the citation.

Finally, a cautionary note. We are not called upon here to decide the propriety of replacing a defective information with a proper information and express no opinion on that issue. Such question has not been raised in this appeal, nor has it been briefed or argued by the parties.

Defendant does not allege that the information upon which he was tried was defective and complains of nothing that occurred during his jury trial. His conviction is accordingly affirmed.

Affirmed.

GREEN, P. J., and LONDRIGAN, J., concur.


author: JUSTICE HEIPLE JUSTICE STOUDER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VICTOR KING, Defendant-Appellant.
    Third District
    No. 81-18
    Opinion filed December 22, 1981.
    STOUDER, J., dissenting.
    Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

On November 24,1980, a criminal proceeding commenced in Peoria County. Victor King, the defendant, stood trial for the offense of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19 — 1(a)). After two days of testimony, the jury returned a guilty verdict. Later, defendant was sentenced to the penitentiary for 10 years. This appeal, which follows, presents the single issue of disparity of sentencing.

Both the defendant Victor King and a co-defendant, Reginald Davis, were initially charged with burglary. Prior to trial, Davis and his attorney negotiated an agreed disposition with the state’s attorney. In exchange for Davis’ plea of guilty to an amended information charging theft, it was agreed that the burglary charge against Davis would be dismissed. Davis agreed to a four-year penitentiary sentence. Sentencing hearing was waived.

Citing People v. Godinez (1980), 92 Ill. App. 3d 523, appeal allowed (1981), 85 Ill. 2d 17, defendant King contends that the sentence imposed on him is excessive. That disparity in sentencing exists here is clear on its face. Both King and Davis were participants in the same burglary/theft. Davis pleaded guilty to theft and received a four-year sentence. King stood on his not-guilty plea, was convicted of burglary by a jury, and was sentenced to 10 years in the penitentiary. The question on appeal is: Is the disparity justified?

Trial testimony indicated that defendant et al. entered the Tobin Brothers’ plumbing warehouse in Peoria on or about September 18,1980, and stole some microwave ovens. Access was gained by use of a crowbar. Once inside, the defendant and another passed the ovens to an unidentified person(s) standing on the other side of the fence which surrounds the Tobin premises. The value of the ovens was $9,000. Defendant King was identified by an eyewitness as the person who gained entry into the building with the crowbar.

At defendant’s sentencing hearing the “rap sheet” of Reginald Davis, listing prior arrests and convictions, as well as the record of the latter’s guilty plea in connection with the Tobin burglary, were admitted into evidence. Defendant argues that Davis’ criminal past and his were largely the same. The same argument was advanced as to each defendant’s participation in the crime. Also, the defendant alleged, the value of the stolen merchandise was inflated. Defendant admitted to a drug problem. Defense counsel recommended a sentence of four to five years’ imprisonment.

In this cause the record fails to reflect most of what defendant says it does. In pursuing his guilty plea, Reginald Davis did not offer any evidence at his sentencing hearing. Thus, such proceedings relate nothing about the man’s education, familial, or psychological history. How then can a comparison be made between such facts of defendant’s rehabilitative potential and those of Davis? Such cannot be done. Although we agree that previous criminal history may be highly relevant in assessing the likelihood of rehabilitation, such is not the sole factor of import in the sentencing equation (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1). Appellate counsel overlooks the fact that defendant’s trial lawyer even argued that a disparate five-year prison term would be permissible.

The degree of King’s participation in the crime was not the same as Davis’. King used the crowbar to force his way into the warehouse. He was identified as passing the ovens to a third person who took them away. If he was not the leader in this felony offense, it is beyond argument that he was a principal participant in its commission. The record does not show the level of Davis’ participation in the burglary. Moreover, defendant’s attempt to depreciate the cost of the stolen merchandise does not control the gravity of the offense. This is especially so, where, as in the case at bar, the only rebuttal evidence of such cost was the defendant’s trial lawyer’s opinion as to its fair market value.

Defendant also fails to appreciate the distinction that Davis pleaded guilty to theft, whereas defendant was convicted of burglary. Although both offenses are felonies, our legislature has determined the latter is more serious (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1). Defendant’s argument, followed to its logical conclusion, would lead to King’s receiving the same sentence imposed on Davis even if Davis had received a term of probation. In short, the argument runs, whatever a previous judge concludes is a just sentence as to one co-defendant controls the subsequent disposition of a different co-defendant if both parties are “similarly situated.” Supposing Davis had been allowed to plead guilty to the misdemeanor offense of trespass to land or disturbing the peace? Would such a disposition control the sentence for a co-defendant convicted of burglary? Presumably, we are asked to conclude that the prior sentence would control a latter sentencing disposition, even if the latter punishment imposed is prohibited by the sentencing statute.

What does such a theory do to a grant of immunity to procure testimony against a co-defendant? Could any greater disparity exist than a grant of immunity to convict a co-defendant? The logical extension of defendant’s argument would serve to defeat the purposes of the sentencing statute and the ends of justice. The sentence is supposed to fit the crime and the criminal and to take into account the interest of the public in the due administration of criminal justice. There is no basis in law for an artificial mandate that two defendants involved in the same offense must receive the same sentence.

A longer sentence is not unfair because of the length of its term if it is based on valid sentencing factors in aggravation and mitigation. The length of his sentence may be viewed by the defendant as an index for gauging whether his sentence, as well as his trial, was fair. A defendant’s personal assessment of the term of the sanction imposed, however, is not the operative fact upon which to determine whether a sentence is excessive.

At the sentencing hearing the circuit judge noted the defendant’s four prior felony convictions, two of which involved the same offense for which he had just been convicted. Both such offenses occurred within the previous 10 years. He considered mitigating circumstances, as well as the rehabilitative potential of the defendant. Also, he admitted as evidence the material concerning co-defendant Davis, which allegedly had a bearing on the disposition of defendant King. We do not believe defendant’s sentence is impermissible based on what transpired either at defendant’s sentencing hearing or the criminal proceedings concerning Davis’ plea of guilty. The trial judge explained the statutory considerations which were the basis of his imposition of an extended term (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2). Obviously, the trial judge thought the rehabilitative potential of King was a severe risk to the community. In other words, his chances for reforming himself within a short prison term were minimal. The sentence of 10 years was within the statutory range of permitted penalties. No abuse of discretion occurred.

One factor that a trial judge takes into account in sentencing is a defendant’s rehabilitative potential. In this connection, it must be borne in mind that Reginald Davis pleaded guilty. Victor King has never admitted his complicity in the crime. Though it may be error of constitutional magnitude to impose a harsher sentence on King for invoking his right to a jury trial (People v. Sivels (1975), 60 Ill. 2d 102, 104), such is not the issue this cause presents. Defendant has adduced no evidence that his sentence was more severe because he sought a jury trial. Lacking such an affirmative showing, a sentencing disposition which is more favorable because of a co-defendant’s guilty plea does not prejudice the other co-defendant’s right to elect a jury trial. Defendant has never acknowledged his complicity in the burglary; Davis’ guilty plea, implicitly, if not actually, does so. If rehabilitation is to occur, an acknowledgement of guilt by the offender is the initial step to so-called rehabilitation. A guilty plea, most significantly, exhibits a defendant’s willingness to assume responsibility for his own conduct. A trial court can, quite properly, consider a declaration of guilt as evidence of the onset of rehabilitation and make concessions in sentencing. This in no way affects the rights of a co-offender who refuses to plead guilty but invokes a right to trial by jury. Merely because one co-offender is not penalized as severely because he admits his wrongdoing violates no rights of a co-offender charged with the same crime. Where one party admits wrong, but the other does not, and is subsequently convicted by his peers, it is inaccurate to contend that both persons are similarly situated with respect to the rehabilitative principal as concerns sentencing.

Sentencing determinations are complex and challenging. To be fair to a defendant, and the community within which he must dwell, a just punishment must address the activity done, the likelihood of rehabilitation or further criminality by the actor, and the effect the crime has on society. The sanction imposed will only be fair when all sentencing factors are balanced. Recognition of the sentence imposed on a co-defendant should also be weighed if properly before the court (Ill. Rev. Stat. 1979, ch. 38, par. 1005—4—1(b)). But such other penalty does not control the latter sentencing determination. Rather, it amounts to another component to be considered by the judge sentencing the defendant before him.

Rarely will a trial judge be confronted with two co-defendants who are really similarly situated in terms of the wrong committed, their individual histories and personalities, or their disposition with respect to the criminal justice system (cf. People v. Kline (1981), 99 Ill. App. 3d 540, with People v. Dewaele (1981), 98 Ill. App. 3d 636). This cause presents yet another scenario which accents the intrinsic distinction between two or more co-defendants. Furthermore, it exemplifies that to conclude, as a matter of law, that two co-defendants are similarly situated demonstrates a lack of actual analysis. The law demands more than a mere paper comparison couched in the terminology of principles of equal protection of the law. Defendants are not machines which can be calibrated or categorized for the purpose of legal argument. We should not expect trial judges to act as automatons when meting out punishment to a person who has been convicted of a crime. To conclude otherwise is to ignore the present realities which exist in our trial courts in the daily administration of justice.

Finally, we must address the question in the case of co-defendants, even if we are to assume perfect similarity, of whether the lesser sentence is correct. If the lesser sentence is incorrect, there is no justification in reducing a larger but correct sentence to coincide with the incorrect sentence. Two wrongs do not make a right. If, for instance, co-defendants who are similarly situated are charged with murder and one is allowed to negotiate a plea to a curfew violation and fined $10 for the offense, is the co-defendant who is sentenced to 20 years in the penitentiary for murder entitled to have that sentence reduced to a $10 fine? One would hope to the contrary.

For the reasons stated, the conviction and sentence of the Circuit Court of Peoria County are hereby affirmed.

Affirmed.

SCOTT, P. J., concurs.

JUSTICE STOUDER,

dissenting:

I respectfully disagree with the reasoning and result reached by my colleagues. I believe this case should either be remanded for reconsideration of the sentence or the sentence should be reduced to five years.

The majority opinion offers several theories to support its result. Although not necessarily stated in this order, the majority suggests that sentencing is largely and perhaps entirely a discretionary function of the trial court. Although judicial review lies based on abuse of that discretion, if the sentence imposed is within the statutory range no abuse of discretion can probably be shown. Secondly, the majority rejects the principle that disparity in sentences imposed on two offenders may support a conclusion there has been an abuse of discretion in sentencing. It rejects this principle because, as noted earlier, the discretion of the trial court in sentencing is so broad that judicial review offers no particular limitation on the exercise of discretion.

Additionally, the majority indicates that disparity in sentencing is an inapplicable principle because no two offenders have identical backgrounds and degrees of participation in the offense nor can these circumstances be sufficient to even justify comparison. In this regard the majority indicates that where, as in the instant case, the two offenders are sentenced by different judges, the second judge is not bound by the decision of the first judge whether correct or mistaken. The majority suggest the earlier decision may be a factor in the sentencing decision, but in view of the more generalized idea that the trial court’s discretion should be unfettered, I think it is a fair statement to suggest the majority believes the prior sentence should have no practical effect.

Finally the majority declares that even if discretion is reviewable and disparity is a recognized principle, there is no disparity in the instant case because the co-participant receiving the earlier sentence pleaded guilty to a lesser crime pursuant to a negotiated plea bargain in contrast to the position of the defendant, who pleaded not guilty and whose guilt was established as a consequence of a jury trial.

There are three principal goals of imprisonment, and I think they furnish a necessary starting point for this dissent. These goals are deterrence, retribution and segregation from society. Once imprisonment has been determined upon, rehabilitation, to the extent that it is a goal or an expectation, is a secondary or incidental result.

Our present arrangement for the determination and imposition of terms of imprisonment is a hybrid legislative-judicial procedure with the general tendency at present to recognize the final act of sentencing as being judicial. Within the judicial discretion which is exercised by courts, both the legislative classifications and sentencing guidelines direct that the judicial discretion be directed toward imposing a sentence proportional to the criminal offense and the circumstances of the offender.

Both the discretionary function and the proportionality rationale compete with another well-established principle of jurisprudence that our system is one of laws, not of men. This means generally that the result ought not to depend on the particular judge rendering the decision but only on the application of the legal rules in an objective manner. Obviously this is a goal for which we strive but one which is probably not realizable in practice. Yet it furnishes the important framework of striving to apply the sentencing rules and functions so that offenders of similar backgrounds committing similar offenses ought to be treated substantially alike. The rule has a more special application where the offenders are participants in the same criminal offense, thus eliminating or reducing one of the variables in the sentencing determination.

There is probably no subject which receives more discussion and results in less unanimity than that of sentencing. I quite agree with the majority that the determination and imposition of a sentence by a trial judge is discretionary and that for all practical purposes it is not subject to judicial review. In fact, in some States sentences are not reviewable by appeal. Nevertheless there are some cases in which a court of review may have an opportunity to apply the proportionality rationale and this is particularly true in a case of co-participants in an offense where similarities and differences are more objectively quantified.

In passing I would note that our sentence statute by specifying aggravating and mitigating factors attempts to objectify the sentencing process, but without quantifying such factors it is difficult to determine whether there have been any changes in the result. I would note that the proposed Federal system through the intermediation of the sentencing commission proposes the quantification of sentencing factors resulting in a narrow range of the possible sentence.

Since I do believe there is a principle against disparity in sentencing or that as applied to this case that offenders guilty of committing the same offense with similar backgrounds ought to receive a similar sentence, a response to the arguments advanced by the majority as applied to the instant case seems appropriate. First of all, since we have co-participants in the same offense, I think the sentence deemed appropriate for the first offender, although not conclusive on the sentences to be imposed thereafter, is highly critical. This is true whether it be meted out by a different judge as in the instant case or by the same judge. It does seem to me the sentence imposed on the first offender establishes an essential point of departure or standard of comparison in determining the sentence for the second offender participating in the same offense.

Without being bound by the earlier decision, the second court in rational application of sentencing principles ought not to depart from the principles applied in arriving at the first sentence unless objective factors demonstrate that a different result is required. These objective factors might include differences in relation to the offense, differences in background and the court imposing the second sentence might, subject to the same limitation in the usual case of judicial review, conclude the first court abused its discretion in imposing the sentence which it did either by one which was too severe or by one which was not severe enough. Of course if the prosecution has granted a co-participant immunity or a reduced sentence in return for the co-participant’s cooperation in the investigation or trial of the case, this fact will constitute an objective difference between the circumstances of the co-participants. Such a difference in circumstances could justify a difference in sentences without detracting from the general rule requiring proportionality of sentences.

So far as the degree of participation in the offense is concerned, I think the record discloses the co-participants were substantially equal offenders. I doubt that either offender could claim he was entitled to a lesser sentence because of his lesser participation in the offense, and indeed the prosecution made no such claim at the sentencing hearing.

Next the majority concedes an offender ought not receive a greater sentence because of his exercise of his right to be tried by a jury. Having made the proper obeisance to constitutional principles, the majority then declares that confession is so good for the soul that he who does not confess may justly be required to linger many more years in jail. No matter how many disclaimers to the contrary, this is a judicial declaration that the offender who loses after exercising his constitutional right to a jury trial may receive a greater sentence than one who pleads guilty.

Finally, even though the trial court was aware of the co-offender’s participation in the events, his criminal background, and the sentence which he received, the trial court imposed the substantially greater term of imprisonment on the defendant without in any way suggesting the reasons therefor. Where a sentencing situation such as the one at hand is presented, I think at a minimum the trial court must make some finding to support its result, otherwise a court of review is required to speculate as does the majority on why the participants in the same offense received substantially different sentences.


author: JUSTICE BARRY

text:
    KRESS CORPORATION, Plaintiff-Appellee, v. EDW. C. LEVY CO., Defendant-Appellant
    Third District
    No. 81-103
    Opinion filed December 22, 1981.

      Diane Mayne, of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Dean B. Rhoads, of Sutkowski & Washkuhn, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This appeal arises from an order of the circuit court of Peoria County-confirming an arbitration award upon application by Kress Corporation (Kress) and denying a motion to dismiss such application filed by Edw. C. Levy Co. (Levy).

Kress is an Illinois corporation in the business of building and selling slag pot carriers. Levy is a Michigan corporation which agreed in 1965 to assist in the development and marketing of certain slag pot carriers to be designed by Kress. The parties agreed that Levy would purchase one of the newly designed carriers at a price determined by a formula set forth in the agreement. The agreement further provided that Levy would be able to purchase additional carriers at a price determined by the greater of the formula for price specified for the initial unit or at “fabricator’s actual cost plus 10%.”

In 1978, Levy ordered four carriers from Kress and specified that it would pay “fabricator’s actual cost plus 10%” based on the 1965 agreement. While these carriers were still in production, a dispute arose over the price to be paid by Levy. The parties thereafter agreed to submit the issue of the purchase price for these four carriers to an arbitrator. Their written submission agreement was addressed to the American Arbitration Association in Chicago, Illinois. It was signed by Kress in October 1979, and by Levy in March 1980, and specified that “the controversy shall be arbitrated in Peoria, Illinois.”

An arbitration hearing was conducted in Peoria pursuant to the agreement, and the arbitrator’s award notice was mailed to the parties on June 9,1980. The total purchase price thus determined was $585,526.28, of which $496,000 had been paid previously by Levy. Since Kress had admitted that it still owed Levy $17,000 in royalties pursuant to a separate section of the 1965 agreement, the arbitrator determined that the balance then due Kress was $82,526.28.

On September 17,1980, Kress filed an action for confirmation of the arbitrator’s award. Levy responded by filing a statement of objections and motion to dismiss on December 5, 1980. The cause was heard on December 12, 1980, at which time the matter was taken únder advisement. On January 27, 1981, the court entered an order confirming the arbitration award and denying Levy’s objections and motion to dismiss. Judgment was entered accordingly. Levy has appealed this order.

On appeal, Levy presents five issues: (1) whether the Federal Arbitration Act (9 U.S.C. §1 et seq. (1976)) or the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1979, ch. 10, par. 101 et seq.) governs the resolution of this case; (2) whether Levy is time-barred from asserting defenses to Kress’ action for confirmation; (3) whether the parties’ submission agreement is unenforceable for lack of certainty; (4) whether the arbitrator exceeded the scope of the submission agreement; and (5) whether the award is unenforceable as being contrary to public policy and in violation of the antitrust law of the United States.

We affirm the trial court’s order. The parties’ arguments and our reasons for affirmance follow.

Initially, Levy argues that the Federal Arbitration Act, rather than the Illinois Uniform Arbitration Act, governs because the transaction between the parties involves interstate commerce. (See Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), 388 U.S. 395, 18 L. Ed. 2d 1270, 87 S. Ct. 1801.) The relevant distinction between the two statutes, Levy’s argument continues, is the manner in which the statute of limitations is applied against a party defending against confirmation of an arbitrator’s award.

Under the Federal Act, the pertinent section reads as follows:

“Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney within three months after the award is filed or delivered.” (9 U.S.C. §12 (1976).)

Federal case law interpreting this section of the statute establishes, according to Levy, that a party is not time-barred from asserting Federal statutory grounds for vacatur as a defense to a motion for confirmation after the 3-month period, even though the same grounds would have been time-barred if set forth in an independent motion to vacate filed after the 3-month period. (See Riko Enterprises, Inc. v. Seattle Supersonics Corp. (S.D. N.Y. 1973), 357 F. Supp. 521.) Application of the Federal rule would, per cited case law, require that the trial court, whether State or Federal, consider the merits of Levy’s defenses to Kress’ application for confirmation of the arbitrator’s award, despite the fact that such defenses were raised nearly six months after delivery of notice of the award.

Kress urges us to apply the law of the State of Illinois to the instant case. The pertinent section of the Illinois Uniform Arbitration Act reads as follows:

“An application under this Section shall be made within 90 days after delivery of a copy of the award to the applicant, except that if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known.” (Ill. Rev. Stat. 1979, ch. 10, par. 112(b).)

Illinois case law establishes that a party is time-barred from asserting statutory grounds for vacatur, whether by independent motion to vacate or in defense of a motion for confirmation, if such grounds are asserted beyond the 90-day period. (See Bloom v. Landy (1979), 72 Ill. App. 383, 394, 389 N.E.2d 1286, 1295.) In the instant case, Illinois State law governs, Kress asserts, because the parties impliedly agreed that State, rather than Federal, law would be applied to the outcome of their price dispute. Where the parties agree to follow State law, Kress continues, their agreement will be given effect regardless of the fact that the underlying transaction involves interstate commerce. Necchi Sewing Machine Sales Corp. v. Carl (S.D. N.Y. 1966), 260 F. Supp. 665.

Evidence of the parties’ agreement to apply Illinois State law may be found in the fact that Levy’s statement of objections and motion to dismiss cited exclusively to the Illinois Uniform Arbitration Act. Further evidence of such agreement may be found in the terms of the arbitration submission agreement itself. Specifically, the written agreement states as follows:

“We further agree that the above controversy be submitted to one arbitrator selected from the panels of Arbitrators of the American Arbitration Association. We further agree that we will faithfully observe this agreement and the Rules and that we will abide by and perform any award rendered by the Arbitrator and that a judgment of the Court having jurisdiction may be entered upon the award. So as to provide both parties with equal access to the books and records of Kress Corporation, we agree that the controversy shall be arbitrated in Peoria, Illinois.”

The parties do not dispute the fact that the circuit court for Peoria County had jurisdiction over the persons and subject matter of this cause. The narrow question is simply whether the court was bound to follow Federal or State law in ruling on the motions presented to it. Neither the underlying contract of 1965 nor the arbitration submission agreement explicitly answers this question. However, both the conduct of the parties in petitioning for confirmation and moving to dismiss pursuant to the Illinois Uniform Act (see I/S Stavborg v. National Metal Converters, Inc. (2d Cir. 1974), 500 F. 2d 424, 425) and the express agreement to arbitrate in the State of Illinois (see Mulcahy v. Whitehill (D. Mass. 1943), 48 F. Supp. 917, 919; Restatement (Second) of Conflict of Laws §218 (1971)) imply that the parties agreed to submit their dispute to the law of Illinois as it applied to arbitration.

Accordingly, we find that sufficient evidence was presented to the trial court in the instant case to establish that the parties impliedly agreed that the law of the State of Illinois would be applied in resolving their dispute.

Levy contends that, regardless of any agreement the parties may have reached, the Supreme Court’s opinion in Prima Paint Corp. mandates that the Federal Arbitration Act govern in the instant case inasmuch as the underlying contract was a contract evidencing a transaction involving interstate commerce. It is our opinion that Levy misperceives the scope of the Prima Paint Corp. decision. In Prima Paint Corp., the court was asked to determine whether a Federal district court sitting in diversity jurisdiction was bound to apply State or Federal law in determining whether a charge of fraud in the inducement of a contract containing an arbitration clause was a question for the court or the arbitrators. The court determined that Congress, in enacting the Federal Arbitration Act, intended that Federal courts apply the Federal act whenever the underlying contract was a maritime transaction or a contract evidencing a transaction involving commerce. 388 U.S. 395, 405-06,18 L. Ed. 2d 1270, 1277-79, 87 S. Ct. 1801, 1806-07.

The court in Prima Paint Corp. was not asked to rule on the question presented in the instant case — namely, whether a State court was bound to apply Federal law when the underlying contract evidenced a transaction involving commerce. This precise question was, however, presented to the Superior Court of Delaware in Pullman, Inc. v. Phoenix Steel Corp. (1973), 304 A. 2d 334. In Pullman, the court stated that the Federal Arbitration Act establishes a substantive rule of Federal law which relieves Federal courts of applying State law in diversity cases, but Congress has not pre-empted the field of contracts in interstate commerce to the extent that State courts are obliged to apply Federal law in such cases. Therefore, in Pullman, the court applied Delaware State law in resolving a dispute arising from a contract involving interstate commerce even though application of Federal law might have required a different result.

Even if Levy is correct, in asserting that neither an explicit nor an implicit agreement was reached between the instant parties as to which law would govern, we find that the trial court may properly have determined nonetheless that the law of the State of Illinois, rather than the Federal law, applied so as to bar Levy’s defenses. In so ruling, we find that the reasoning of the court in Pullman is sound, and we reject as improvident the contrary conclusion reached in Indiana (see Pathman Construction Co. v. Knox County Hospital Association (1975), 164 Ind. App. 121, 326 N.E.2d 844) and certain other State jurisdictions (see Annot., 95 A.L.R.3d 1145, 1155-60) (1979)).

Having thus determined that the trial court might properly have applied State law in determining whether Levy’s objections were timely, we do not hesitate to conclude that Levy, having filed its objections in the trial court well over 90 days after delivery of the arbitrator’s award, is time-barred from asserting defenses directly challenging the enforceability of the submission agreement and the arbitration award. (See Bloom v. Landy.) In so concluding, we are mindful of the underlying purpose of arbitration which is the promotion of speedy and final resolution of disputes so that the parties’ business affairs may go forward with the least possible disruption.

Levy contends that inasmuch as the Illinois Uniform Arbitration Act states that the 90-day limitation period applies “to an application under this Section” (Ill. Rev. Stat. 1979, ch. 10, par. 112(b)), the statute serves to limit only independent actions to vacate an award — not defenses to an application for confirmation. In so arguing, Levy urges us to reject Illinois case law (Bloom v. Landy; Schroud v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 1092, 398 N.E.2d 103), in favor of the “federal rule” set forth in Riko Enterprises. We find, however, that Illinois cases on point correctly interpret how the limitation period is to be applied. Because allowing a party to raise defenses to a motion to confirm an arbitrator’s award beyond the statutory period would impose delays inherent in the judicial decision-making process and frustrate the purposes of arbitration, we refuse to subscribe to the argument posited by Levy that defenses to a motion to confirm should not be treated the same as a motion to vacate.

Furthermore, we find that even under the Federal arbitration statute, Levy is time-barred from asserting its defenses to Kress’ motion for confirmation. In so ruling, we adopt the rationale set forth in Teamsters Local No. 135 v. Jefferson Trucking Co. (S.D. Ind. 1979), 473 F. Supp. 1255, aff'd (7th Cir. 1980), 628 F.2d 1023. In Teamsters Local No. 135, the Seventh Circuit Court of Appeals was asked to decide whether a party seeking to avoid an arbitration award conferred under a collective bargaining agreement could assert defenses raised after the applicable statute of limitations had elapsed. The court analyzed those decisions, such as Riko Enterprises, Inc., wherein Federal courts had determined that the Federal limitation of actions (U.S.C. §9 et seq.(1976)) did not bar a party from asserting defenses beyond the three-month period, and found such decisions unpersuasive. (628 F.2d 1023, 1026.) In ruling that the defendant was time-barred from asserting defenses to a suit to enforce the award, the Seventh Circuit court brought Federal application of the statutory limitations period in line with Illinois State law.

We therefore hold that whether the reason for the trial court’s order confirming the arbitration award and dismissing Levy’s objections thereto was based upon State or Federal law, the result reached was proper inasmuch as Levy’s defenses were time-barred under both the Illinois Uniform Arbitration Act and the Federal Arbitration Act.

Because of our ruling with respect to the aforementioned issues, we do not reach the three issues presented to us on appeal which concern Levy’s defenses to Kress’ application and motion for confirmation. For the foregoing reasons, the order of the trial court is hereby affirmed.

Affirmed.

STOUDER and HEIPLE, JJ., concur.