text:
    CONTINENTAL GRAIN COMPANY, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Fifth District
    No. 5—84—0044
    Opinion filed March 1, 1985.

      Petition for review of order of Pollution Control Board.
    Richard J. Kissel, Jeffrey C. Fort, Roy M. Harsch, and Frederick L. Moore, Jr., all of Martin, Craig, Chester & Sonnenschein, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Greig R. Siedor, Assistant Attorney General, of counsel), for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Continental Grain Company (Continental) seeks direct review of two consolidated administrative orders of the Illinois Pollution Control Board (PCB) pursuant to section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1979, ch. HV-k, par. 1041) and Illinois Supreme Court Rule 335 (87 Ill. 2d R. 335). The first order (PCB 79 — 167) affirmed the decision of the Illinois Environmental Protection Agency (IEPA) to deny Continental’s request for an operating permit for its grain elevator located in East St. Louis township. The other order appealed from (PCB 79 — 26) imposed a $10,000 penalty against Continental for failing to comply with Air Pollution Rule 203(d)(8)(B)(iv)(c)(2). Ill. P.C.B. Rules & Regs., ch. 2, Rule 203(d)(8XB)(iv)(c)(2), now codified in 35 Ill. Adm. Code sec. 212.462(d)(3).

Under Air Pollution Rule 203(d)(8)(B)(iv)(c)(2), watercraft grain loading facilities which loaded in excess of 2 million bushels of grain per year and also were situated within a major population area were required to achieve a 98% removal efficiency for particulate emissions. The term “major population area” was defined in Air Pollution Rule 201 (Ill. P.C.B. Rules & Regs., ch. 2, R. 201, now codified in 35 Ill. Adm. Code sec. 211.122), which stated in pertinent part:

“Major Population Area (MPA): Areas of major population concentration in Illinois, as described below:
* * *
The area within the townships of Godfrey, Foster, Wood River, Fort Russell, Chouteau, Edwardsville, Venice, Nameoki, Alton, Granite City and Collinsville located in Madison County; and the townships of Stites, Canteen, Centreville, Caseyville, St. Clair, Sugar Loaf and Stookey located in St. Clair County.”

Continental contended before the PCB that its East St. Louis grain handling facility was not governed by Air Pollution Rule 203(d)(8)(B)(iv)(e)(2) because the facility was not located in a major population area as defined in Air Pollution Rule 201. The PCB, while recognizing that East St. Louis township was not included in the definition of major population area, nevertheless concluded that Rule 203(d)(8)(B)(iv)(c)(2) was intended to cover this area. We reverse.

While the PCB’s interpretation of its own rules usually is given great weight, this court will reverse a PCB construction of a rule which is considered unreasonable, arbitrary or capricious. (See Environmental Protection Agency v. Pollution Control Board, (1983), 118 Ill. App. 3d 772, 780, 455 N.E.2d 188, 194; Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 483, 370 N.E.2d 3, 5-6.) We find that since Air Pollution Rule 203(d)(8)(B)(iv)(c)(2) expressly applied only if the grain handling facility was located in a specified major population area and since East St. Louis township was not included in the definition of major population area in Air Pollution Rule 201, the PCB erroneously found that East St. Louis township was governed by Rule 203(d)(8)(B)(iv)(c)(2).

The Attorney General urges that we accept the PCB interpretation and adopt a construction of the Air Pollution Rules based upon the intent of the drafters. We reject this contention. Interpretation and construction of an administrative agency’s rules are governed by the same rules which are applicable to statutes. (Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 483, 370 N.E.2d 3, 5; May v. Pollution Control Board (1976), 35 Ill. App. 3d 930, 933, 342 N.E.2d 784, 787.) Rules of construction are useful only where there is doubt as to the meaning of a statute, and a court may not alter that meaning beyond the clear import of the language employed therein. (Pielet Brothers Trading, Inc. v. Pollution Control Board (1982), 110 Ill. App. 3d 752, 755, 442 N.E.2d 1374, 1377.) To accept the PCB’s interpretation of its Air Pollution Rules in the instant case would require us to ignore the plain language of those rules. Additionally, as Continental points out in its brief, the PCB’s interpretation, in effect, circumvents the usual rulemaking procedure and allows the PCB to amend a rule through construction. The fact is that the language utilized in Air Pollution Rules 203(d)(8)(B)(iv)(c)(2) and 201 clearly does not include grain facilities located in East St. Louis township. While this may well amount to an oversight, it is one which must be rectified by proper amendment of the rules. In the interim, the PCB is bound to follow the rules as stated. Therefore, we conclude that the PCB erred in affirming the decision of the IEPA to deny plaintiff’s application for an operating permit (PCB 79 — 167) and in imposing the $10,000 penalty against plaintiff (PCB 79 — 26).

For the reasons stated, the orders of the Illinois Pollution Control Board designated as PCB 79 — 167 and PCB 79 — 26 are reversed; and cause No. PCB 79 — 167 is remanded to the PCB for further action consistent with this opinion.

Reversed and remanded.

JONES, P.J., and EARNS, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JONES

license: Public Domain

text:
    THE PEOPLE ex rel. MARY REEDER, Plaintiff-Appellee, v. DAVID L. REEDER, SR., Defendant-Appellant.
    Fifth District
    No. 5—84—0340
    Opinion filed March 7, 1985.
    Lewis E. Mallott, of Campbell & Mallott, of Godfrey, for appellant.
    Don W. Weber, State’s Attorney, of Edwardsville (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   PRESIDING JUSTICE JONES

delivered the opinion of the court:

In this paternity action brought when the child in question had attained the age of 14 years, the defendant maintains that the doctrine of laches bars the action.

In a complaint filed March 6, 1984, the People on the relation of Mary Reeder, relator and plaintiff complaining of the defendant David L. Reeder, Sr., stated that the plaintiff is the mother of a child born out of wedlock on January 21, 1970, that the child is living and in good health and that the father of the child is the defendant. The complaint was brought pursuant to the Illinois Paternity Act (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.) (hereinafter referred to as the Act). Section 4 of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 1354) provides in pertinent part that “[n]o such action may be brought after the expiration of 2 years from the birth of the child.” The exceptions provided for in the Act have no application here. In an amended motion the defendant sought dismissal of the complaint pursuant to the doctrine of estoppel by laches, stating that the delay of 14 years had resulted in an insurmountable detriment to an effective defense.

At the preliminary hearing and hearing on the motion to dismiss, Mary Reeder, the only witness to testify at the hearing, stated that “Public Aid” had told her she had to file a complaint concerning paternity. She stated further that if she had not been required to do so, she would not have filed the complaint. She testified that she had begun living with the defendant in 1965 and had lived with him until 1973. During the period of time in question, she said, she had had sexual intercourse with the defendant and with no one else. Apparently, while the plaintiff lived with the defendant he supported the minor child. On cross-examination she testified that she had met the defendant “[i]n 1964 or ’65, I don’t know which.” She was unable to remember specific dates concerning the conception of the child. She testified that the defendant had stated after the birth of the child that the child was his. The plaintiff was, however, unable to remember whether anyone else was present at the time. The trial court found probable cause to believe that the defendant is the father of the child.

The trial court denied the defendant’s motion to dismiss, finding as follows:

“In light of the U.S. Supreme Court ruling in Pickett v. Brown, 76 L. Ed. 2d 372, 1033 [sic] S. Ct. 2199 (1983) and the Illinois Appellate Decisions which have interpreted the Pickett case to hold the Illinois two (2) year paternity statute unconstitutional, Illinois Revised Statutes, Chapter 40, Section 1354, this Court does hereby Find that said statute is unconstitutional and as such there is no limitation period for filing a paternity action as long as the child at issue is a minor and as such the doctrine of Estoppel by Laches is not an appropriate ground for dismissing this action ***.”

The trial court subsequently granted the defendant’s request for interlocutory appeal pursuant to Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)), finding the question of law to be as follows:

“The question of law involved is whether in light of Pickett v. Brown, 76 L. Ed. 2d 372, 1033 [sic] S. Ct. 2199 (1983) the equitable doctrine of Estoppel by Laches bars the prosecution of a paternity action filed when the child at issue has attained the age of fourteen (14) where Plaintiff at all times knew the whereabouts of Defendant since the birth of the child and could have, at any time, located Defendant for the purpose of having a Paternity Complaint served on him. This Court rules that as the Illinois paternity limitation statute is unconstitutional there is no limitation period for any reason for the filing of a paternity action during the minority of the child at issue.”

We granted the defendant’s application for leave to appeal.

We note that in Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431, the supreme court recently pronounced the two-year limitation of section 4 of the Act for bringing an action pursuant to the Act invalid under Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199, in which a Tennessee paternity statute containing a two-year limitation period was held to be unconstitutional because it denied equal protection to certain illegitimate children. The two-year limitation period in Pickett failed to provide these children with an adequate opportunity to obtain support and was not substantially related to the legitimate State interest in preventing the litigation of stale or fraudulent claims. Following the decision in Pickett, and prior to the decision in Dornfeld, the appellate court in Illinois held the two-year time limit in the Act unconstitutional in Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24, a decision followed in People ex rel. McCoy v. Sherman (1984), 123 Ill. App. 3d 444, 462 N.E.2d 817. In Dornfeld the supreme court held that the entire Act was not rendered invalid by the unconstitutionality of the limitations clause.

In McCoy, the court responded to the defendant’s contention that the action should have been dismissed under the equitable doctrine of laches by saying:

“Laches, or stale demand, ‘is applied where there is “such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552 [147 N.E.2d 341].)’ (Thurston v. State Board of Elections (1979), 76 Ill. 2d 385, 388, 392 N.E.2d 1349, 1350-51.) As the definition illustrates, the doctrine is limited to actions in equity (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393) and therefore has no role here.” (123 Ill. App. 3d 444, 446, 462 N.E.2d 817, 819.)

In the case at bar the defendant urges us not to follow McCoy because, he argues, “in Illinois there is really no further distinction between an action at law and an action at [sic] equity. Defendant would also further suggest that a paternity action is more closely akin to an equity action than an action at law.” We find these arguments unpersuasive and follow McCoy.

The defendant relies upon Bays v. Matthews (1982), 108 Ill. App. 3d 1112, 440 N.E.2d 142, in which we held that the defense of laches applied to an action at law based upon section 255 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 736). In Bays we found further support for that conclusion in the fact that the purpose of that section was not to protect the delinquent taxpayer but merely to return real estate to the stream of commerce and that the application of the doctrine of laches to that section would not adversely affect the statute’s purpose. This may not be said of the Paternity Act, however, which provides for paternal support of children born of unwed parents, thereby converting a father’s moral obligation of support into a legal one, and preventing such children from becoming public charges. (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431.) The application of the doctrine of laches to the Paternity Act could adversely affect this statutory purpose.

The General Assembly has recently recodified and amended the Paternity Act and the Act on Blood Tests to Determine Paternity in the Illinois Parentage Act of 1984 (Pub. Act 83 — 1372, to be Ill. Rev. Stat., ch. 40, par. 2501 et seq.; Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431), which will become effective July 1, 1985. Section 8(a)(1) thereof provides that “[a]n action brought by or on behalf of a child shall be barred if brought later than 2 years after the child reaches the age of majority; however, if the action on behalf of the child is brought by a public agency, it shall be barred 2 years after the agency has ceased to provide assistance to the child.” We notice that section 8(b) thereof provides: “However, upon a showing by the defendant that unreasonable delay in bringing the action has unduly prejudiced the defendant, the court, after deliberating over all the circumstances, including equitable considerations, may dismiss the cause of action.” Although this provision may be found to embody the concept of the doctrine of laches, the current statute includes no such provision or concept, and the doctrine of laches is not now available as a defense.

Affirmed.

HARRISON and WELCH, JJ., concur.


author: JUSTICE SCHNAKE

text:
    RAMONA PUMALA, Plaintiff-Appellant, v. STEPHEN SIPOS, M.D., Defendant-Appellee.
    Second District
    No. 84—239
    Opinion filed March 26, 1985.
    Margaret A. McGuire, of Leonard M. Ring & Associates, of Chicago, for appellant.

      Robert Marc Chemers, of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE SCHNAKE

delivered the opinion of the court:

The plaintiff appeals from an order of the trial court denying her motion to reconsider an order granting the defendant’s motion to dismiss. Defendant’s motion raised the statute of limitations against plaintiff’s amended complaint, which sounded in medical malpractice. The complaint named 11 defendants, but this appeal involves only the claim against Dr. Stephen Sipos.

The issue on appeal is this: Where a complaint designates a date when the alleged cause of action accrued, is dismissal proper where the defendant affirmatively raises a different date and supports this contention by affidavit, no counteraffidavit being filed, nor any motion otherwise attacking the motion to dismiss.

The plaintiff’s complaint was filed on July 29, 1983, and her amended complaint alleged that between September 1973 and May 1981 she was a patient of Dr. Sipos and that as a result of his negligence (failure to diagnose) her leg had to be amputated because of cancer. There was a further allegation that plaintiff did not learn of her condition until August 1981. The complaint contains the standard and usual allegations found in a medical malpractice cause of action, and the separate allegations that defendant “failed to see plaintiff when she called requesting an appointment for the condition of her right leg when defendants knew that periodic examinations were necessary”; and “negligently abandoned the plaintiff during the course of treatment ***.” A separate count of the amended complaint asserts that the defendant is estopped from raising the statute of limitations as a bar to plaintiff’s claim. This allegation is not germane to this appeal.

The applicable statute provides that:

“Physician or hospital. No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13 — 215 of this Act.” Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212.

Defendant’s motion to dismiss, laid under section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 619) raised the limitations defense and filed in support thereof the defendant’s affidavit, stating “he last had professional contact of any nature with the plaintiff *** on June 19, 1978.” No counteraffidavit was filed by the plaintiff, nor any motion to strike the motion or affidavit of the defendant.

We are called upon to decide whether the motion procedure followed by defendant was proper.

The amended complaint alleges treatment of plaintiff by defendant up to May 1981. We hold that this constitutes a proper and sufficient designation of time and can be considered a well-pleaded fact. Only where a bar to the statute of limitations affirmatively appears from the face of the complaint may the issue be raised by a 2— 619 motion. Conway v. Conners (1981), 101 Ill. App. 3d 121, 427 N.E.2d 1015.

The cases cited by defendant do not support his position. In Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 342 N.E.2d 329, although a motion to dismiss and supporting affidavit were there filed, the limitations issue could there be determined by the court from consideration of the date on which an amended complaint was filed and from the factual allegations contained therein. No controverted issue of fact existed. And in Cundiff v. Unsicker (1983), 118 Ill. App. 3d 268, 270, 454 N.E.2d 1089, where a motion to dismiss had been granted by the trial court, the dismissal was reversed on appeal, the court saying: “The statute of limitations cannot be raised by a motion to dismiss unless it affirmatively appears from the complaint that the action is barred. (Burnett v. West Madison State Bank (1940), 375 Ill. 402, 31 N.E.2d 776.)”

Although the sufficiency of Dr. Sipos’ affidavit was not challenged by motion, it appears doubtful that his affidavit sets forth with sufficient particularity the facts upon which the defense is based, nor does it avoid conclusions, and thus does not comply with Supreme Court Rule 191(a) (87 Ill. 2d R. 191(a)). Nevertheless, defendant urges us to hold that because plaintiff did not move to strike defendant’s motion the impropriety of the procedure has been waived. (Keeran v. Wahl Co. (1943), 320 Ill. App. 457, 51 N.E.2d 598.) We do not so hold. While defendant’s motion was not challenged by a motion to strike, the point was contested by way of argument in response to the motion.

Lastly, we would note that the case at bar, unlike Anguiano v. St. James Hospital (1977), 51 Ill. App. 3d 229, 366 N.E.2d 930, in no way involves a summary judgment motion. In that case, the limitations defense was successfully and properly presented upon a motion for summary judgment together with supporting affidavits and depositions. In short, defendant’s use here of a 2 — 619 motion to dismiss was improper, and the court below erred in granting it.

The order of the trial court dismissing plaintiff’s complaint is reversed, and the cause is remanded for further appropriate proceedings.

Reversed and remanded.

LINDBERG and UNVERZAGT, JJ., concur.


author: JUSTICE MILLS

text:
    ALEXANDRE LITTLE, Plaintiff-Appellant, v. THE CIVIL SERVICE COMMISSION et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0589
    Opinion filed March 25, 1985.

      William S. Hanley and Jane Lynk, both of Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield, for appellant.
    Londrigan, Potter & Randle, P.C., of Springfield, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

This male employee is charged with atrocious and odious acts of sexual harassment of female employees.

Yet — he was denied a hearing!

That is simply not fair.

We reverse and remand.

Alexandre Little was discharged without a hearing from his employment with the Governor’s Office of Manpower and Human Development. The discharge was based on allegations that plaintiff sexually harassed several female employees.

The Civil Service Commission dismissed Little’s appeal from the discharge and the circuit court of Sangamon County affirmed the dismissal. Little has brought the present appeal from the order of the circuit court affirming the dismissal of his appeal to the Civil Service Commission.

FACTS

Little became employed as a manpower planning specialist with the Governor’s Office of Manpower and Human Development, on April 17, 1978. He received a six-month probationary appointment on May 1, 1978.

On October 1, 1978, five months after Little’s probationary appointment as manpower planning specialist, he was appointed to an executive V position. This position was within the State Economic Opportunity Office (SEOO), a division of the Governor’s Office of Manpower and Human Development. At the time of Little’s appointment to the executive V position, both the Department of Personnel and the Civil Service Commission treated all positions within the SEOO as exempt from the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl01 et seq.). Because the executive V position was exempt, Little was required by the personnel rules to take a leave of absence from his position as manpower planning specialist.

On November 1, 1978, six months after Little had received his probationary appointment as manpower planning specialist, he was notified by the Department of Personnel of his certification in that position. His employment file with the Department reflects that he received certification as a manpower planning specialist on November 1, 1978.

On January 1, 1979, the Civil Service Commission, pursuant to section 4b of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63bl04b), extended jurisdiction A, B, and C of the Personnel Code to all employees within the SEOO. After jurisdiction was extended to this office, Little was told by an employee of the Department of Personnel that he could not simultaneously hold two positions which were both subject to the Personnel Code. Acting on this information, Little resigned from his job as manpower planning specialist.

Also on January 1, 1979, Little received a provisional appointment as an executive V. He took a qualifying examination for this position on March 28, 1979, and thereafter received notice stating that a six-month probationary period would begin April 1,1979.

Little was discharged on September 27, 1979, four days before the end of his six-month probationary period as an executive V. The Civil Service Commission dismissed Little’s appeal from the discharge after finding that he was not properly certified and, therefore, the Commission had no jurisdiction to hear the appeal. Little filed a complaint for administrative review in the court below. That court found that the Commission’s decision was not against the manifest weight of the evidence and affirmed the dismissal of Little’s appeal from his discharge.

OPINION

Little argues on appeal that he was entitled to a hearing before the Commission because he was a certified employee. The Commission acknowledged that Little had received notice of certification but it refused to grant him a hearing on the grounds that the certification was improper.

The Commission’s decision was founded on Personnel Rules 2— 300 and 2 — 310. Rule 2 — 300 states that employees who enter State service shall serve a probationary period of six months. The rule further provides:

“If an employee is absent from work for more than 15 calendar days during the probationary period because of leave of absence *** such absence shall serve to extend the probationary period by the length of the absence.”

Rule 2 — 310 states: “A probationary employee shall attain certified status only after successful completion of a probationary period.” The Commission determined that Little, having taken a leave of absence after serving only five months of his probationary period as a manpower planning specialist, had not successfully completed his probationary period and should not have been certified on November 1,1978.

The fact remains, however, that Little was certified, and neither the Commission nor the Department of Personnel attempted to revoke or deny that certification until Little sought to exercise his rights as a certified employee following his discharge. We must, therefore, determine the effect of the deficiency in Little’s probationary service — as determined by the personnel rules — on the certification granted to Little by the Department of Personnel.

The personnel rules are promulgated by the Director of Personnel pursuant to section 8 of the Personnel Code (Ill. Rev. Stat. 1979, ch. 127, par. 63M08). Proposed rules are submitted for approval to the Civil Service Commission. If the Commission does not disapprove of the rules within 30 days, the Director of Personnel may file them with the Secretary of State and, thereafter, the rules have the force and effect of law. See Ill. Rev. Stat. 1979, ch. 127, par. 63M08.

The Department of Personnel is required to comply with its own rules. Such rules as are lawfully adopted by an administrative agency pursuant to statutory authority have the force of law and binds the agency to them. (Margolin v. Public Mutual Fire Insurance Co. (1972), 4 Ill. App. 3d 661, 281 N.E.2d 728; see Heavner v. Illinois Racing Board (1982), 103 Ill. App. 3d 1020, 432 N.E.2d 290; Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, 365 N.E.2d 261.) However, cases which have held that an agency must comply with its own rules have generally involved situations where the agency’s noncompliance prejudices one who is subject to the authority of the agency. See Margolin v. Public Mutual Fire Insurance Co. (1972), 4 Ill. App. 3d 661, 281 N.E.2d 728; Heavner v. Illinois Racing Board (1982), 103 Ill. App. 3d 1020, 432 N.E.2d 290; Hetzer v. State Police Merit Board (1977), 49 Ill. App. 3d 1045, 365 N.E.2d 261; Holland v. Quinn (1978), 67 Ill. App. 3d 571, 385 N.E.2d 92; Illinois Bell Telephone Co. v. Allphin (1981), 95 Ill. App. 3d 115, 419 N.E.2d 1188, affd (1982), 93 Ill. 2d 241, 443 N.E.2d 580; Sye v. Wood Dale Fire Protection District No. 1 (1976), 43 Ill. App. 3d 48, 356 N.E.2d 938.

In the present case, the Department’s noncompliance with Rule 2 — 310 in certifying Little did not prejudice Little. On the other hand, Little will suffer substantial prejudice if the Department is now permitted to renege on the certification. The allegations against Little were no less than scandalous. A discharge without a hearing on these allegations could seriously damage Little’s reputation and impair his chances of obtaining future employment.

To deny the certification, under the circumstances of this case, would be both unjust and inequitable. The Department itself treated Little as a certified employee even prior to his actual certification. On October 1, 1978, Little obtained a leave of absence to accept the executive V position while he was still serving a probationary period. Personnel Rule 3 — 155 provides:

“The Director may approve leaves of absence for certified employees who accept appointment in a position which is exempt from Jurisdiction B of the Personnel Code.”

The appellees have cited to no corresponding rule which allows probationary employees to take leaves of absence to accept exempt positions. Consequently, the Department must have considered Little to be a certified employee at the time he was granted a leave of absence.

In addition, the Commission’s finding that Little was one month short of completing his probationary period was made in spite of the fact that Little had almost 12 months of continuous State service after he had already served five months of the probationary period. Personnel Rule 3 — 155 provides that, at the expiration of a leave of absence to accept an exempt position, an employee is entitled to be restored to the same or similar position “with continuous service including the period of such leave.” (Emphasis added.) Therefore, when jurisdiction under the Personnel Code was extended to the SEOO on January 1, 1979, Little had three months of continuous service for the time he was on leave. He then worked as an executive V from January 1, 1979, to September 27, 1979; nearly nine months.

Had the Department desired Little to complete the final month of probation as a manpower planning specialist, it should have allowed him to serve it upon his return from leave of absence on January 1, 1979. Instead, the Department directed Little to resign from the position at that time so that he could hold the executive V position. This is another instance where the Department treated Little as a certified employee, for Rule 2 — 320 provides: “An employee may not be promoted *** or transferred during the probationary period without the approval of the Director.” Nothing in the record indicates that Little was given approval from the Director under Rule 2 — 320 to hold the executive V position.

It is apparent from the record that the Department maneuvered Little from position to position for its own convenience and without care as to whether its actions strictly complied with the personnel rules. The Department now argues, in effect, that because it played fast and loose with the rules, Little should be denied certified status — a status which Little had good reason to believe he had achieved and which the Department seemingly recognized until the time of the discharge.

We will not judge this case by the double standard urged by appellees. We hold that Little was a certified employee and was entitled to a hearing before the Civil Service Commission on the allegations against him.

Appellees have suggested at oral argument that Little’s certification as a manpower planning specialist would not entitle him to a hearing because he was discharged while serving a probationary period as an executive V. This argument is without merit. Personnel Rule 2 — 625, which has been provided to us by appellees, provides:

“For purpose of rules respecting discipline and discharge, ‘certified employee’ shall mean any employee who has satisfactorily completed a required period of probation and attained certified status in any position during the employee’s most recent period of continuous State service.” (Emphasis added.)

In addition, Rule 2 — 340 states: “A promoted employee previously certified may be discharged for cause during the probationary period and in such event, the employee has the same rights to appeal as a certified employee.”

These rules are unambiguous. Little’s certification as manpower planning specialist entitled him to a hearing from his discharge while serving his probationary period as an executive V.

Reversed and remanded.

GREEN, P.J., and McCULLOUGH, J., concur.


author: JUSTICE McCULLOUGH

text:
    RONALD SINNOCK, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF BEARDSTOWN et al., Defendants-Appellees.
    Fourth District
    No. 4—84—0624
    Opinion filed March 29, 1985.
    Homer J. Tice, of Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellant.
    No brief filed for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The plaintiff, Ronald Sinnock, brought suit to recover lost wages after the defendants, the board of fire and police commissioners and the city of Beardstown, laid him off from their police force. The trial court held Sinnock’s furlough prior to an ordinance officially reducing the size of the force was wrongful. The court granted summary judgment in favor of Sinnock for the period of time before the official reduction. The court, however, refused to award him any wages for the period after the date of the ordinance and granted summary judgment in the defendants’ favor for that period of time. Sinnock appeals, contending his furlough after the ordinance was still wrongful because he had more seniority than an officer who was retained. In addition, Sinnock maintains the trial court erred in not awarding him prejudgment interest on the wages that he was awarded.

The defendants failed to file a brief on appeal. While a court of review should not be compelled to serve as an advocate for the appellee, a considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal. Therefore, if the record is simple and the claimed errors are such that the court can easily decide them without the aid of the appellee’s brief, the court should decide the merits of the appeal. On the other hand, if the appellant’s brief demonstrates prima facie reversible error and the contentions in the brief find support in the record, then the trial court’s judgment may be reversed. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On June 28, 1978, the city appointed patrolman Michael Dyer as chief of police. Sinnock was hired on August 10, 1979. Dyer resigned as chief on May 16, 1981, and resumed his duties as a patrolman. The city decided that with Dyer’s return to the position of patrolman it had more patrolmen than it needed. The city, therefore, laid off Sinnock on May 16 because he had been the last officer hired. On May 16, 1981, the ordinances of the city provided for seven patrolmen. Ordinance No. 81 — 11, adopted July 21, 1981, set the number of patrolmen positions at six. The trial court held the city had wrongfully furloughed Sinnock without officially reducing the size of its force. (See Ill. Rev. Stat. 1983, ch. 24, pars. 10 — 2.1—17, 10 — 2.1—18.) The trial court awarded Sinnock lost wages for the period of time between May 16 and July 21. The city has not appealed that award.

Sinnock argues that his continued furlough after passage of the ordinance was also wrongful. Section 10 — 2.1—18 of the Illinois Municipal Code states, in pertinent part:

“When the force of the fire department or of the police department is reduced, and positions displaced or abolished, seniority shall prevail and the officers and members so reduced in rank, or removed from the service of the fire department or of the police department shall be considered furloughed without pay.” (Ill. Rev. Stat. 1983, ch. 24, par. 10 — 2.1—18.)

Sinnock maintains he had more seniority in the rank of patrolman than Dyer, and, therefore, Dyer should have been furloughed.

Sinnock maintains that “seniority” refers to seniority in rank rather than seniority in service. He relies on the following statement from the supreme court’s decision in Yeley v. Bartonville Fire & Police Com. (1979), 77 Ill. 2d 271, 274, 395 N.E.2d 1387, 1389:

“We agree with the appellate court that section 10 — 2.1—18 is correctly construed to apply to seniority in rank and not in length of service with the department.”

Yeley, however, presented a much different case factually than the present one. The plaintiff in Yeley had been one of three sergeants on the Bartonville police force. When the village board decided to reduce the number of sergeants to two, the plaintiff was demoted. While he had been on the force longer than the other sergeants, he had not held the rank of sergeant as long. The appellate court in Yeley decided the Illinois Municipal Code strove to promote efficiency and capability of fire and police departments and to encourage the application and retention of qualified persons. That court concluded:

“A careful reading of the section [10 — 2.1—18] indicates that it has two functions. It requires that, if the manpower of the department is reduced, such reduction is to be effected according to seniority on the department, regardless of rank. If however, positions within a rank are reduced, then such a reduction in any given rank is to be effected according to seniority within that rank.” (Yeley v. Bartonville Fire & Police Com. (1978), 64 Ill. App. 3d 448, 451, 380 N.E.2d 1387, 1390, rev’d on other grounds (1979), 77 Ill. 2d 271, 395 N.E.2d 1387.)

The court held that requiring the demotion of a more qualified and more experienced sergeant would defeat the statute’s purpose. Similarly, in this case, to require the furlough of a more experienced and more qualified officer would not promote the efficiency and capability within the department and would discourage the application, retention and promotion of qualified persons. As stated in Yeley v. Bartonville Fire & Police Com. (1978), 64 Ill. App. 3d 448, 450, 380 N.E.2d 1387, 1389, the word “seniority” is defined as:

“ ‘[A] status attained by length of continuous service (as in a company, institution, or organization or in a department, job, rank or occupational group) to which are attached by custom or prior collective agreement various rights or privileges (as preference in tenure, priority in promotion, and choice of work or shift) on the basis of ranking relative to others ***.’ (Webster’s Third New International Dictionary 2066 (1961).)”

Section 10 — 2.1—4 of the Illinois Municipal Code provides, in part:

“If a member of the department is appointed Chief of Police or Chief of the Fire Department prior to being eligible to retire on pension he shall be considered as on furlough from the rank he held immediately prior to his appointment as Chief. If he resigns as Chief or is discharged as Chief prior to attaining eligibility to retire on pension, he shall revert to and be established in such prior rank, and thereafter be entitled to all the benefits and emoluments of such prior rank, without regard as to whether a vacancy then exists in such rank.” (Ill. Rev. Stat. 1983, ch. 24, par. 10-2.1-4.)

It is important to note rules of statutory construction. As stated by the appellate court in Yeley v. Bartonville Fire & Police Com. (1978), 64 Ill. App. 3d 448, 450-51, 380 N.E.2d 1387,1389-90:

“In construing statutes, the reviewing courts should consider ‘the reason or necessity for the enactment, the contemporaneous conditions, existing circumstances, and the object sought to be obtained by the statute.’ [Citation.] In addition, when attempting to determine legislative intent ‘sections of the same statute should be construed as being consistent rather than inconsistent and should be interpreted as being in pari materia.’ [Citation.] Furthermore, statutes ought to be construed so that their meaning is reasonable and so that the interpretation of them does not lead to absurd consequences. [Citation.]
The purpose of requiring a board of police and fire commissioners and civil service appointments of policemen and firemen is to promote the efficiency and capability of fire and police departments and to encourage the application and retention of qualified persons. [Citation.] We can not interpret this section so as to defeat the purpose of the entire statute.”

Section 10 — 2.1—4 mandates that a resigning chief of police prior to attaining eligibility to retire be entitled to all the benefit of the prior rank without regard to whether a vacancy then exists.

To give effect to this section the time spent as chief of police must be included in determining seniority. The purpose of the statute would be completely avoided to apply any other meaning. There would be no protection to a person offered the job of chief of police from within the ranks. The protection provided by the statute would be effectively thwarted. While the chief is to be considered as on furlough from the rank he held immediately prior to this appointment, nothing in section 10 — 2.1—4 indicates that his seniority in rank is affected by his appointment. Instead, the statutes recognized the concept of duality of employment. (Kagann v. Board of Fire & Police Commissioners (1975), 28 Ill. App. 3d 209, 215, 328 N.E.2d 364, 368.) As previously stated, no vacancy occurs in the rank when an officer is appointed chief. The chief continues to be a member or officer of the department. (Edwards v. City of Marion (1970), 130 Ill. App. 2d 895, 266 N.E.2d 491.) Furthermore, an officer can be promoted in rank while holding the office of chief. (See Barrows v. City of North Chicago (1975), 32 Ill. App. 3d 960, 336 N.E.2d 596.) We conclude that an officer continues to accumulate seniority in his rank while serving as chief.

Even if Sinnock is correct in his interpretation of “seniority,” we agree with the trial court that he had less seniority in the rank of patrolman than Dyer. Including the period for which he was wrongfully furloughed, Sinnock accumulated 711 days of seniority as a patrolman. Dyer served as a patrolman for 644 days before he became acting chief on May 8, 1978. Between May 8 and May 16, 1978, he performed the duties of the chief but only received a patrolman’s salary. After May 16, he began receiving the chief’s pay and was officially appointed chief on June 20, 1978. Between the date he resigned as chief and the date of the ordinance, Dyer served an additional 66 days as a patrolman. In calculating Dyer’s seniority, the trial court included the eight days that Dyer served as acting chief while receiving a patrolman’s salary, giving him a total of 718 days.

Sinnock argues Dyer ceased being a patrolman once he began performing the duties of acting chief. He maintains the trial court erred in adding the eight days to Dyer’s seniority. Sinnock relies on People ex rel. Bubash v. Board of Fire & Police Commissioners (1973), 14 Ill. App. 3d 1042, 303 N.E.2d 776. Bubash, however, stands for the proposition that performance of the duties of a rank or office, coupled with remuneration under an appropriation ordinance, is sufficient to establish the rank or office and protection in such rank. (Kagann v. Board of Fire & Police Commissioners (1975), 28 Ill. App. 3d 209, 214, 328 N.E.2d 364, 368.) None of the city’s ordinances included an appropriation for the position of acting chief. While the ordinances did include the position of chief, Dyer was not remunerated under those ordinances until after May 16, 1978.

Sinnock also asserts the trial court erred in denying him prejudgment interest on the wages that he was awarded. Section 2 of the Interest Act provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instruments of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” (HI. Rev. Stat. 1983, ch. 17, par. 6402.)

This case does not involve an instrument in writing or any other situation described in section 2. There has been no allegation of any vexatious or unreasonable delay. Neither an honest dispute concerning the existence of a legal obligation nor the defense of a lawsuit can be regarded as vexatious and unreasonable. Moreover, decisions regarding an award of prejudgment interest involve questions of fact and will not be disturbed on review unless contrary to the manifest weight of the evidence. (Pietka v. Cheleo Corp. (1982), 107 Ill. App. 3d 544, 557-58, 437 N.E.2d 872, 883.) The trial court’s decision was not against the manifest weight of the evidence.

For these reasons, the judgment of the trial court is affirmed.

Affirmed.

GREEN, P.J., and WEBBER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORA T. BROWN, Defendant-Appellant.
    Second District
    No. 2—83—0547
    Opinion filed March 26, 1985.

      G. Joseph Weller and Kyle Wesendorf, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCHNAKE

delivered the opinion of the court:

Defendant, Ora Brown, appeals from his convictions and sentences for driving while under the influence of alcohol and improper lane usage. He argues on appeal that the trial court erred in denying his motion to vacate its findings of guilt and to set the cause for a fitness hearing. He filed this motion after the circuit court of Winnebago County found him guilty in a bench trial of the above offenses and not guilty of two disorderly conduct charges, and before the scheduled sentencing hearing.

The court denied the motion on the grounds that article 104 of the Code of Criminal Procedure of 1963, which governs an accused’s right to a fitness hearing (Ill. Rev. Stat. 1983, ch. 38, pars. 104 — 10 to 104 — 31), does not permit a defendant to procure a fitness hearing to determine his fitness to be tried after he has been found guilty, and that article 104 does not apply in proceedings based upon violations of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, pars. 1 through 20). In denying defendant’s subsequent motion to reconsider, the court stated that article 104 does not apply to a sentencing hearing in a misdemeanor proceeding. The court sentenced defendant to a 362-day term of imprisonment in the Department of Corrections. Defendant filed timely notice of appeal and argues that the trial court’s bases for denying his motion were erroneous and that a bona fide doubt of his fitness existed.

Contemporaneous with the instant proceedings, defendant was charged with an unrelated felony. Two doctors examined him on August 27, 1982, and found him unfit to stand trial in that proceeding. The trial in the instant case commenced on September 24, 1982. The record on appeal does not contain a report of proceedings of the State’s case in chief. According to the statement by the State’s Attorney, the offense occurred on August 6, 1981. Two young girls on bicycles complained to police officers that defendant was following them in his car. The officers saw defendant weaving down the road behind them. Defendant made a U-turn in an unsuccessful attempt to avoid the officers. These officers had seen defendant a few minutes earlier appearing drunk and lying on a sidewalk. They warned him at the time that he was too drunk to drive, to which defendant replied, “Let’s go get some babies.”

After the State rested, the cause was continued until September 27, at which time defendant testified. It is unclear from reading the report of proceedings of that testimony as to its relevance to the charged offenses except that defendant denied any involvement in the charged offenses. The trial court then found defendant guilty of driving while under the influence and improper lane usage and ordered the preparation of a presentence report.

The probation officer who submitted the report explained in the report that the incompleteness of the report resulted from defendant’s refusal to talk to the officer on the grounds that he had been falsely accused and framed. Further, defendant complained that he was the victim of a police plot and police persecution, advised that he “was in a coma and they poured something down me,” and informed the probation officer that he had called the FBI to investigate the matter and was preparing to sue the police and the court systems. At a subsequent meeting, defendant appeared confused and stated that he did not “know what they are trying to do to me.”

On October 26, 1982, defendant filed a motion to vacate the findings of guilty and for a fitness hearing. The motion alleged that it had become apparent to counsel during the course of trial and since trial that defendant was unfit for trial and is presently unfit to participate in a sentencing hearing. He requested the appointment of a qualified expert to examine him pursuant to section 104 — 14 of the Code.

At the April 14, 1983, hearing on defendant’s motion, his counsel represented that during the trial, defendant’s testimony differed from what they discussed earlier. Two weeks after the trial, defendant came to his office in a tirade and pounded on the walls and glass desk complaining that he had not had a trial. Defendant’s attorney continued that in the unrelated pending felony against defendant, two psychiatrists had examined defendant pursuant to court order and testified that defendant was unfit to stand trial or to be sentenced. Doctors who examined defendant at a mental health center also opined that defendant was unfit to stand trial and that he probably would not regain fitness within a one-year period of time. A copy of the letter prepared by the doctors of this mental health center, dated December 7, 1982, was tendered to the trial court. Further, the judge presiding over that felony proceeding found defendant unfit to stand trial.

The assistant State’s Attorney agreed that a bona fide doubt as to defendant’s fitness for sentencing existed. The court took judicial notice of everything presented to it and continued the cause.

On the next day, a public defender testified that the trial judge in the felony proceedings found defendant unfit on November 5, 1982, and discharged defendant on February 17, 1983. Defendant’s counsel again sought the appointment of two psychiatrists, and the State voiced no objections.

The court denied the motion to vacate the findings of guilty because the trial had already terminated. He also ruled that article 104 of the Code does not apply to proceedings under the Illinois Vehicle Code. In scheduling the sentencing hearing, defense counsel then requested additional time, but the court gave him only 15 days. The court stated: “Well, let the record show this court did hear the trial. The defendant testified at the time of the trial. He was coherent to this court. He made sense to this court. I ruled against him. I could understand what he said. If you cannot get along with your client now, [defense counsel], that may be your problem. It certainly isn’t mine.”

On the date scheduled for sentencing, the trial court entertained defendant’s motion to reconsider. In denying that motion, the trial court stated that not only does article 104 not apply to Illinois Vehicle Code proceedings, but it does not apply to sentencing hearings on misdemeanors. The court then proceeded to the sentencing hearing. Defendant testified during the sentencing hearing. In this testimony, he gave his opinions as to the criminal justice system and society in general, and voiced his belief that he was being persecuted by the police. During the proceedings, his counsel admonished him to remain quiet. The court then sentenced him to 362 days in the Department of Corrections. Defendant filed notice of appeal on May 26, 1983.

Defendant argues that the two legal bases which the trial court advanced in denying his motion to vacate the findings of guilty and set the cause for a fitness hearing were erroneous. In this regard, defendant does not address the trial court’s initial basis that section 104 of the Code does not apply to proceedings under the Illinois Vehicle Code. The State’s response, in essence, concedes that the trial court may have set out erroneous bases upon which to deny defendant’s motion, but that nevertheless the trial court found that there was no bona fide doubt as to defendant’s fitness to stand trial or to be sentenced.

Requiring a defendant to stand trial or be sentenced when he is not competent to do so constitutes a denial of due process of law. (People v. Chambers (1976), 36 Ill. App. 3d 838, 842.) A defendant is unfit if, because of mental or physical problems, he is unable to understand the nature and the purpose of the proceedings against him or to assist in his defense. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 10; People v. Davis (1984), 127 Ill. App. 3d 49, 51.) When facts raising a bona fide doubt of a defendant’s fitness are made known to the trial court, either from the court’s observations of the defendant or by suggestions of counsel, the court must conduct a fitness hearing. (Ill. Rev. Stat. 1983, ch. 38, par. 104 — 11; People v. Leiker (1983), 115 Ill. App. 3d 752, 755.) The determination of whether a bona fide doubt of a defendant’s fitness exists rests within the sound discretion of the trial court, who is in a superior position to observe the defendant and evaluate his conduct. (People v. Dillard (1983), 116 Ill. App. 3d 1062, 1066.) A trial court’s failure to hold a fitness hearing will be overturned only when the trial court has abused its discretion. People v. Wilson (1984), 124 Ill. App. 3d 831, 836; People v. Johnson (1984), 121 Ill. App. 3d 859, 860.

The trial court in the instant case abused its discretion in denying defendant’s motion. With respect to defendant’s fitness to stand trial, section 104 — 11 of the Code specifically permits the issue to be raised before, during, or after trial. (Ill. Rev. Stat. 1983, ch. 38, par, 104 — 11(a).) Permitting a defendant to raise this issue after he has been convicted is consistent with the principle that the conviction of a person who is in fact unfit to stand trial violates due process. (People v. Eddmonds (1984), 101 Ill. 2d 44, 56.) Thus, if a defendant was actually unfit to stand trial, the fact that his unfitness was not discovered until after he had been convicted does not expunge the due process violation. Several cases have permitted a post-conviction challenge to a defendant’s fitness to stand trial, often in a section 72 proceeding (Ill. Rev. Stat. 1983, ch. 110, par. 72), recodified as section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 983, ch. 110, par. 2 — 1401). (See People v. Jackson (1980), 91 Ill. App. 3d 595 (subsequent to the defendant’s conviction, he was found unfit to stand trial in an unrelated pending murder charge); People v. Martinez (1979), 78 Ill. App. 3d 590 (ordering presentence competency hearing may, but not alone, raise a bona fide doubt of the defendant’s unfitness to have stood trial); People v. Owens (1978), 57 Ill. App. 3d 157 (fitness to plead guilty may be raised after plea has been entered); see also People v. McLain (1967), 37 Ill. 2d 173.) Consequently, if facts become known to a trial court subsequent to a defendant’s conviction on the issue of the defendant’s fitness to have stood trial, it is incumbent upon the trial court to exercise its discretion to determine whether there is a bona fide doubt that the defendant was unfit to have stood trial.

The trial court’s rationale for not conducting a fitness hearing to determine defendant’s fitness to be sentenced was also erroneous. Section 104 of the Code does not differentiate between misdemeanor and felony proceedings. Section 100 — 2 of the Code specifically provides that the Code’s provisions govern the procedure in all criminal proceedings except where provision for a different procedure is specifically provided by law. (Ill. Rev. Stat. 1983, ch. 38, par. 100 — 2.) Research has not disclosed any decisional law which limits the applicabil-. ity of section 104 to sentencing hearings on felony convictions. Consequently, if facts were made known to the trial court on the issue of defendant’s fitness, it was incumbent upon the trial court to exercise its discretion to determine whether a bona fide doubt as to defendant’s fitness existed.

Although not addressed by defendant, it should be noted that neither statutory nor decisional law limits section 104’s applicability only to offenses set out in the Criminal Code of 1961. Thus, section 104 would appear to be applicable to proceedings under the Illinois Vehicle Code.

The State argues that since the question before a reviewing court is the correctness of the result reached by the trial court, and not the correctness of the reasoning upon which the result was reached (see People v. Fenelon (1980), 88 Ill. App. 3d 191, 193), defendant’s conviction and sentence should be affirmed because the evidence did not establish a bona fide doubt as to his fitness. However, that proposition pertaining to appellate review would not be properly applied to the instant proceedings because the trial court failed to exercise its discretion in determining whether a bona fide doubt as to defendant’s fitness existed. By not exercising its discretion, it is impossible to determine whether defendant’s conduct evinced a bona fide doubt as to his fitness, especially in light of psychiatric reports subsequent to trial which found him unfit, and the finding of another circuit court judge that defendant was unfit to stand trial. As the court in People v. Stribling (1982), 104 Ill. App. 3d 969, explained, whether a bona fide doubt exists requires an examination of a wide range of manifestations and subtle nuances (104 Ill. App. 3d 969, 973), which cannot be made on review.

In support of its argument, the State relies upon the trial court’s statement regarding his observations of defendant when he testified at trial. A reading of this statement in the context in which it was made does not lead to the conclusion that the trial court expressed its belief that no bona fide doubt as to defendant’s fitness existed. The trial judge made that statement after defense counsel requested more time to prepare for the sentencing hearing in light of defendant’s lack of cooperation. While in denying that request, the trial court stated that it understood defendant’s testimony at trial and that defendant was coherent. This does not constitute a finding as to whether a bona fide doubt as to his fitness existed. The trial court had just ruled that it was not under a legal obligation to make a determination in that regard. Therefore, affirming the trial court on this basis requires the placement of excessive weight on the trial court’s finding with respect to another matter not addressed to the issue of whether a bona fide doubt as to defendant’s fitness existed.

The effect of the psychiatric reports finding defendant unfit and the circuit court judge’s finding in the felony proceeding that the defendant was unfit warrants discussion. A bona fide doubt as to a defendant’s fitness to stand trial may be raised where a defendant is subsequently found unfit for sentencing. While a defendant can be fit to stand trial and yet later be unfit for sentencing, when he is found unfit for sentencing, a risk appears that he may have also been unfit to stand trial. (People v. Johnson (1984), 121 Ill. App. 3d 859, 861.) Thus, since the issue of defendant’s fitness arose after his conviction, a finding of his subsequent unfitness would bear on his fitness to stand trial. Whether this retrospective finding of fitness applies depends upon the circumstances of the case. (Compare People v. Owens (1978), 57 Ill. App. 3d 157 (determination after conviction of organic mental illness may imply an earlier lack of fitness to stand trial), with People v. Riley (1980), 89 Ill. App. 3d 438 (presentence examination conducted nine days after the trial which found him unfit for sentencing does not necessarily raise a bona fide doubt as to fitness to stand trial since cause of unfitness may have commenced or have been aggravated subsequent to trial); see also People v. Martinez (1979), 78 Ill. App. 3d 590, 597; People v. Jackson (1980), 91 Ill. App. 3d 595, 604-05.) Further, although psychiatric reports and opinions are not necessarily conclusive even in making the threshold determination of whether a fitness hearing is required (People v. Turner (1982), 111 Ill. App. 3d 358, 365), much weight is placed on the finding of psychiatrists. See People v. Davis (1984), 127 Ill. App. 3d 49, 53.

In addition to the above indicia of unfitness, defense counsel represented that defendant was uncooperative. This statement is a factor which the trial court should have considered in determining defendant’s fitness. (See People v. Davis (1984), 127 Ill. App. 3d 49, 53.) Consequently, there were sufficient facts before the trial court which required it to exercise its discretion to determine whether a bona fide doubt as to defendant’s fitness existed.

The judgment of the circuit court of Winnebago County is therefore reversed and this cause remanded for the trial court to make a determination of whether a bona fide doubt as to defendant’s fitness to stand trial and to be sentenced existed, and for further proceedings, if necessary, in accordance with that finding.

Reversed and remanded.

LINDBERG and UNVERZAGT, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE EARL JAMES WEATHERALL, Defendant-Appellant.
    Fourth District
    No. 4—84—0597
    Opinion filed March 29, 1985.
    Daniel D. Yuhas, Charles M. Schiedel, and James E. Chadd, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Robert J. Biderman and Michael K. Blazicek, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

In July 1983, defendant Johnnie Weatherall was indicted for the offense of residential burglary, and pleaded guilty to the lesser offense of burglary (see Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1). On September 7, 1983, he was sentenced to a term of two years’ probation. In June 1984, the terms of his probation were modified pursuant to petition (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-4(3)(f)). In August 1984, his probation was revoked and he was sentenced to four years’ imprisonment. The defendant appeals from the judgment of the circuit court of Champaign County, arguing that (1) as the sentencing court did not expressly deny credit for time served on probation, he is entitled to such credit under section 5 — 6—4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(h)); and (2) imposition of a four-year term of imprisonment was an abuse of discretion.

The State argues that the defendant’s appeal must be dismissed for his failure to comply with Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)), which provides in pertinent part:

“No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to withdraw his plea of guilty and vacate the judgment. *** If the motion is denied, a notice of appeal from the judgment and sentence shall be filed within the time allowed in Rule 606, measured from the date of entry of the order denying the motion. Upon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived.”

The State argues (1) the defendant was first sentenced in this cause on September 7, 1983, and at that time was admonished pursuant to Supreme Court Rule 604(d); and (2) since the defendant has not filed a motion to withdraw his guilty plea, this appeal should be dismissed, relying on People v. Gambill (1980), 91 Ill. App. 3d 302, 414 N.E.2d 859, People v. Frey (1977), 67 Ill. 2d 77, 364 N.E.2d 46, and this court’s decision in People v. Pettis (1983), 111 Ill. App. 3d 381, 444 N.E.2d 274. We disagree.

The cases cited do not require dismissal of this appeal for failure to file a motion to withdraw the guilty plea pursuant to Supreme Court Rule 604(d). Pettis and Frey involve defendants who sought to appeal from the judgment entered upon a plea of guilty, as distinguished from a subsequent judgment revoking probation. Frey discussed Rule 604(d) as functioning to insure that constitutional claims arising dehors the record would be directed first to the trial court at a time when witnesses were still available and their memories fresh, so that matters going to the voluntariness of the plea may be heard and considered by the court of original jurisdiction.

Gambill presents circumstances closer to those here, but is distinguishable. After defendant Gambill was found fit to stand trial by a jury, he entered a negotiated plea of guilty to the offense of attempted voluntary manslaughter on January 5, 1977, and was sentenced to five years’ probation. In January 1978, a petition to revoke his probation was filed, and in May 1978, he admitted the probation violation in court. Following delays for psychiatric evaluation, Gambill’s probation was revoked in July 1979, and he was sentenced to two years’ imprisonment. In August 1979, defendant Gambill filed both a timely motion to vacate judgment and withdraw his guilty plea and a notice of appeal. No hearing was held on defendant’s motion to vacate judgment and withdraw the guilty plea and no ruling was entered. The State argued that the defendant’s failure to obtain a trial court ruling on the motion to withdraw the guilty plea and vacate judgment, prior to proceeding on appeal, constituted substantial noncompliance with Rule 604(d). The reviewing court agreed and dismissed the appeal, stating:

“Defendant’s failure to allow the trial court to rule on his motion before he appealed precluded the trial court from hearing argument or evidence with regard to the entry of the guilty plea. Such contentions should be addressed to the court of original jurisdiction, and are not properly heard by a court of review, which operates on the record of the lower court. [Citation.] Here, the defendant has in effect filed no motion to withdraw the plea of guilty and vacate the judgment.” (Emphasis added.) (People v. Gambill (1980), 91 Ill. App. 3d 302, 303, 414 N.E.2d 859, 860.)

In his August 1979 appeal, the defendant apparently sought to raise issues addressed to the entry of the guilty plea in January 1977. That is not the circumstance presented in this case.

Here, the defendant was not advised pursuant to Supreme Court Rule 604(d) at the August 1984 hearing for sentencing on revocation. The issues raised on appeal deal with the sentence imposed on revocation, and not with matters pertaining to the entry of the guilty plea. The purpose of Rule 604(d) would not be served by its application to this case. This result is a necessary corollary of the rule emergent from the decisions in People v. Nordstrom (1966), 73 Ill. App. 2d 168, 219 N.E.2d 151, appeal dismissed (1967), 37 Ill. 2d 270, 226 N.E.2d 19, People v. Fleming (1974), 23 Ill. App. 3d 221, 318 N.E.2d 518, People v. Willett (1976), 44 Ill. App. 3d 545, 358 N.E.2d 657, and this court’s decision in People v. Gregory (1973), 16 Ill. App. 3d 204, 305 N.E.2d 549, that a defendant may not attack the validity of his original conviction on an appeal from a judgment revoking probation.

We next consider the first issue raised by the defendant, whether he is entitled to sentencing credit for time served on probation. Section 5 — 6—4(h) of the Unified Code of Corrections provides:

“Time served on probation *** shall be credited by the court against a sentence of imprisonment *** unless the court orders otherwise.” (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(h).)

The trial judge sentenced the defendant to four years’ imprisonment, with credit for one day served in jail. The State concedes that the defendant is entitled to sentencing credit from September 7, 1983, to-June 4, 1984, and June 6, 1984, to August 1, 1984, as the court did not expressly deny credit for defendant’s time on probation. (People v. Hollingsworth (1982), 89 Ill. 2d 466, 433 N.E.2d 682.) The defendant states he was sentenced to probation on September 7, 1983; a petition to modify probation was filed and summons issued on June 4, 1984, with the court entering a new order on June 6, 1984 (which was subsequently vacated and a new order entered on June 15, 1984); a petition to revoke was filed on June 28, 1982, but later withdrawn; and a supplemental petition to revoke probation was filed on August 1, 1984, which was disposed of when he was sentenced, on August 13, 1984. He argues by reply brief that “time served on probation” includes the period following issuance of a warrant or summons, although the probation period is tolled thereby under section 5 — 6— 4(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—4(a)(3)). (People v. Goodman (1984), 102 Ill. 2d 18, 464 N.E.2d 250.) Generally, a point raised for the first time in the reply brief may be treated as waived. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 791.) At our discretion, given the facts of this case and the decision in Goodman (filed prior to defendant’s sentencing on revocation), we hold that defendant is entitled to sentence credit for time served on probation from September 7, 1983, through August 13, 1984. The mittimus should be amended to reflect the correct amount of sentence credit.

Defendant next argues that the trial court abused its discretion in sentencing him to four years’ imprisonment, and requests that this court reduce the sentence to three years’ imprisonment. Generally, sentencing is a matter reserved to the discretion of the trial court, and a sentence within the statutory range will not be disturbed on review absent an abuse of discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Dorris (1982), 110 Ill. App. 3d 660, 667, 442 N.E.2d 951, 957.) The statutory range for the offense of burglary, a Class II felony, includes a sentence of imprisonment for a determinate sentence of not less than three years nor more than seven years (see Ill. Rev. Stat. 1983, ch. 38, pars. 19 — 1(b) and 1005— 8 — 1(a)(5)). Defendant argues that his sentence should be reduced because the conduct which led to revocation was nonviolent and noncriminal, and consisted of transgressions of the conditions of his probation, such as failure to keep appointments set by the probation office or obey a curfew. He cites as almost identical the factual situation in People v. Ligons (1977), 45 Ill. App. 3d 21, 359 N.E.2d 223, wherein this court reduced a defendant’s sentence on revocation of probation. While the facts in Ligons offer some similarities to those presented here, the modification of sentence in that case does not require the reduction of sentence here.

First, the entire sentencing scheme has been revamped by the legislature since the decision in Ligons. Second, the Illinois Supreme Court has made clear that sentencing is not a reviewing court’s function, and that a reviewing court ought not substitute its judgment for that of the trial court merely because it would have balanced the appropriate factors differently. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Third, there are dissimilarities between the facts of the cases, the offenses for which the defendants entered guilty pleas, and the offenses for which probation was revoked. The facts of this particular case were considered by the trial judge as impacting upon the defendant’s rehabilitative potential and, after reviewing the record, we cannot say that the trial judge abused his discretion in ordering the sentence imposed.

For the reasons stated, the judgment and sentence are affirmed, and the cause remanded for correction of mittimus consistent with the views expressed herein.

Affirmed and remanded with directions.

GREEN, P.J., and WEBBER, J., concur.


author: JUSTICE TRAPP

text:
    BENNY NEWSOME, Petitioner-Appellee, v. C. E. (GENE) HUGHES, Sheriff of Vermilion County, et al., Respondents-Appellants.
    Fourth District
    No. 4—84—0193
    Opinion filed March 27, 1985.
    Neil F. Hartigan, Attorney General, of Springfield (Jill Wine-Banks, Solicitor General, and Mark L. Rotert and Terence M. Madsen, Assistant Attorneys General, of Chicago, of counsel), for appellants.
    Robert E. Mclntire, Assistant Public Defender, of Danville, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

In this appeal, Michael P. Lane, Director of the Illinois Department of Corrections, and C. E. Hughes, sheriff of Vermilion County, challenge a final order granting Benny Newsome’s petition for writ of habeas corpus. We reverse.

Newsome, while serving a period of mandatory supervised release, was charged with unlawful use of weapons, theft of a firearm, and theft with a prior theft. Based on the same conduct, the Department of Corrections issued a warrant to apprehend Newsome for the purpose of determining whether he had violated the terms of his mandatory supervised release. The theft charges were dismissed. A jury acquitted Newsome of unlawful use of weapons. The following day Newsome filed a petition for writ of habeas corpus, arguing that the acquittal barred the Department from instituting revocation proceedings for the same alleged conduct. The trial court agreed and granted the petition.

Newsome was released from the penitentiary on mandatory supervised release on September 9, 1982. On November 7, 1983, the State’s Attorney of Vermilion County filed an information alleging that Newsome had committed unlawful use of weapons, theft of a firearm, and theft with a prior theft. Also on November 7, 1983, the deputy director of the Department of Corrections issued a warrant for Newsome’s arrest pursuant to section 3 — 14—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 14—2), alleging that Newsome had violated the rules and conditions of his mandatory supervised release. Newsome was served with written notice of the charges underlying the Director’s warrant that same day. The charges included the three criminal violations named in the information and an allegation that Newsome failed to comply with the conditions of his mandatory supervised release by possessing a firearm.

Prior to the trial on the criminal charges, both theft counts were dismissed. A jury trial was conducted on the unlawful-use-of-weapons charge. The State’s evidence established that Newsome had been arrested for violating a municipal ordinance which prohibited drinking alcohol on public property. In the course of a pat-down, the arresting officer discovered a loaded gun secreted in Newsome’s pants. The discovery of the weapon in Newsome’s clothing was corroborated by the testimony of a second police officer at trial. Newsome claimed, however, that the weapon was found in weeds near the point of arrest. The parties stipulated that Newsome had been convicted of a felony in the preceding five years. The jury acquitted Newsome of the sole charge for which he had been tried.

On the day after the trial, Newsome filed a petition for writ of habeas corpus. The petition alleged that the Director’s warrant was based on the same conduct with which Newsome had been charged and tried. It sought an adjudication of the legality of his confinement. On that date Newsome was admitted to a $10,000 recognizance bond.

In the hearing on the petition, only James Winnett, Newsome’s parole agent, gave testimony. Winnett testified that he gave Newsome written notice of the charges relating to the Director’s warrant on November 7, 1983. He conceded that the charges were based on the same event which gave rise to the criminal charges. He specified, however, that the unlawful-use-of-weapons offense was different than the charge that Newsome had failed to comply with the conditions of his parole by possessing a firearm.

The trial judge granted the petition on two theories. First, he found that the warrant was not valid, because it did not cite the underlying charges on the face of the instrument. Second, he concluded that the respondents were estopped from proceeding against Newsome for the same conduct for which he had been tried. The judge found that Newsome was entitled to relief under section 10— 124(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 10 — 124(2)), because the acquittal was a “subsequent event” through which Newsome had become entitled to discharge.

Respondents argue on appeal that the writ of habeas corpus was improvidently granted by the circuit court because: (1) the writ procedure is not available to a prisoner serving a term of mandatory supervised release; (2) the acquittal of a releasee on a criminal charge does not estop the Department from seeking revocation of mandatory supervised release on the basis of the same conduct; and (3) a Director’s warrant issued pursuant to section 3 — 14—2 of the Unified Code of Corrections does not require citation of the charges on the face of the warrant.

We first consider whether the statutory remedy of habeas corpus is available to Newsome. It is well established that a writ of habeas corpus is available only to obtain the release of a prisoner who has been incarcerated under a judgment of a court which lacked jurisdiction of the subject matter or the person of the petitioner, or where there has been some occurrence subsequent to the prisoner’s conviction which entitled him to release. (Hughes v. Kiley (1977), 67 Ill. 2d 261, 367 N.E.2d 700; People ex rel. St. George v. Woods (1970), 47 Ill. 2d 261, 265 N.E.2d 164.) A petition for writ of habeas corpus may not be used to review proceedings which do not exhibit one of these defects, even though the alleged error involves a denial of constitutional rights. See People v. Reese (1978), 66 Ill. App. 3d 199, 383 N.E.2d 759; Long v. Israel (1977), 56 Ill. App. 3d 14, 371 N.E.2d 873.

The petition filed by Newsome does not allege any error which is subject to review in habeas corpus proceedings. He raises no question pertaining to jurisdiction, nor has he alleged any post-conviction event which would entitle him to release. As a prisoner on mandatory supervised release, Newsome remains in the legal custody of the Department of Corrections for the duration of the release period. (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 14—2(a).) This being true, New-some’s challenge to the legality of the revocation proceedings might affect the manner in which he would serve his term of mandatory supervised release, but it could not conceivably entitle him to actual release or discharge. See People ex rel. Johnson v. Pate (1970), 47 Ill. 2d 172, 265 N.E.2d 144, cert, denied (1971), 402 U.S. 976, 29 L. Ed. 2d 141, 91 S. Ct. 1679.

Section 10 — 123 of the Code of Civil Procedure provides in part:

“No person shall be discharged under the provisions of this
Act, if he or she is in custody:
* * *
2. By virtue of a final judgment of any circuit court, or of any proceeding for enforcement of such judgment, unless the time during which such party may be legally detained has expired.” (Ill. Rev. Stat. 1983, ch. 110, par. 10-123(2).)

Since a prisoner on mandatory supervised release remains in the custody of the Department of Corrections, the time during which he can be legally detained does not expire until the term of mandatory supervised release expires; therefore, habeas corpus relief is not available to a petitioner, such as Newsome, who is serving a term of mandatory supervised release. Due to the conclusions reached on this issue, it is not necessary to consider the trial court’s findings regarding the applicability of collateral estoppel.

We next consider the circuit court’s finding that the Director’s warrant issued for Newsome was defective in that it did not contain a statement of the pending charges. The judge specifically held that due process and statutory law require a statement of the charges on the face of the warrant. We do not agree.

It is clear that the warrant in this case contained no specific statement of charges. The form document merely stated that New-some had violated the rule or conditions of his mandatory supervised release. It was undisputed, however, that Newsome’s parole agent gave Newsome written notice of the charges on the day of his arrest.

It appears plain that the relevant statutory law does not require a statement of the charges to accompany the warrant. Section 3 — 13— 4(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 13—4(c)) provides in part:

“An order certified by the Director, Assistant Director Adult Division, or the Supervisor of the Apprehension Unit, or a person duly designated by him or her, with the seal of the Department of Corrections attached and directed to all sheriffs, coroners, police officers, or to any particular persons named in the order shall be sufficient warrant for the officer or the person named therein to arrest and deliver the violator to the proper correctional official. Such order shall be executed the same as criminal processes.”

No judicial construction of the statute has imposed any greater requirement regarding the contents of the warrant.

It further appears that due process does not require a Director’s warrant to contain a specific statement of the alleged violations. In Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593, the Supreme Court undertook to describe what process is due when authorities seek to revoke a prisoner’s parole. The court made the following observations regarding the nature of parole and parole revocation:

“[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. *** Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” (408 U.S. 471, 480, 33 L. Ed. 2d 484, 494, 92 S. Ct. 2593, 2600.)

The Morrissey opinion analyzed the due process requirements for each stage of parole revocation proceedings, beginning with the parolee’s arrest. No special mention was made of any due process requirements relating to the warrant. Contrary to the finding of the circuit court in the present case, the Morrissey opinion stated notice of the charges is not due until the parolee is given notice of the preliminary hearing on the matter.

Custody of a prisoner on mandatory supervised release remains with the Department of Corrections throughout the release period. (Ill. Rev. Stat. 1983, ch. 38, par. 1003 — 14—2(a).) Our supreme court has held that a warrant in the similar circumstances of parole revocation merely “initiate[s] an administrative proceeding to determine whether parole had been violated, and in no way deprive[s] a free citizen of his right to liberty.” (People ex rel. Jefferson v. Brantley (1969), 44 Ill. 2d 31, 34, 253 N.E.2d 378, 380.) A Director’s warrant is not the equivalent of a warrant issued for an arrest on criminal charges.

For the reasons stated herein, we reverse the judgment of the circuit court.

Reversed.

GREEN, P.J., and WEBBER, J., concur.